UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


TRIAL  EVIDENCE. 


THE  RULES  OF  EVIDENCE 


APPLICABLE  ON  THE  TRIAL 


(INCLUDING  BOTH  CAUSES  OF  ACTION  AND  DEFENSES) 


AT   COMMON   LAW,   IN   EQUITY, 


UNDER  THE   CODES   OF   PROCEDURE. 


BY  AUSTIN  ABBOTT. 

OF   THE   NEW   YORK   BAH. 

11012 


NEW  YORK: 
BAKER,  VOORHIS  &  CO.,  PUBLISHERS, 

60    NASSAU    STREET. 
1882. 


Entered,  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  eighty,  by 

AUSTIN   ABBOTT, 
In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


Sixth  Impression. 


PEEFACE. 


«i  Iff  this  volume  I  assume  that  the  reader  is  familiar  with  the  general 

principles  of  the  Law  of  Evidence,  and  is  concerned  with  their  proper 
application  in  actual  practice.  I  have  accordingly  sought  to  state  the 

^  most  useful,  convenient,  and  trustworthy  rules  as  to  the  mode  of  proof 
of  each  material  fact  in  all  the  great  classes  of  actions  and  defenses ; 
and  to  illustrate  and  support  these  rules  by  a  selection  of  authorities 
drawn  from  the  decisions  of  all  the  American  and  English  courts,  and 
from  the  works  of  the  best  text-writers. 

Recent  changes  in  procedure,  accompanying  or  resulting  from  the 
Code  practice,  have  had  far-reaching  consequences  in  respect  to  the 
mode  of  dealing  with  the  subject  of  evidence.  The  abolition  of  formal 
distinctions  affecting  actions  and  suits,  the  new  methods  of  pleading,  the 
abrogation  of  former  disqualifications  of  witnesses,  and  the  advance  in 
assimilating  the  practice  in  the  United  States  courts  to  that  in  the  State 
courts,  have  silently  effected  many  radical  changes  in  the  mode  of  proof, 
and  have  had  a  wide  and  powerful  influence  upon  the  practical  applica- 
tion of  the  general  principles  of  evidence.  In  consequence  of  these 
modifications  of  the  law,  most  of  the  questions  as  to  competency  of  wit- 
nesses and  the  effect  of  the  pleadings,  which  formerly  occupied  so  much 
attention,  have  dropped  out  of  notice,  and  questions  of  the  relevancy 
and  competency  of  particular  facts  relating  more  or  less  directly  to  the 
issue,  and  of  the  weight  and  cogency  of  evidence,  have  been  brought 
into  new  importance.  Since  the  law  has  given  to  the  trial  courts  in- 
creased freedom  in  the  admission  of  evidence,  the  appellate  courts 
justly  use  increased  care  in  scrutinizing  questions  of  evidence,  that  they 
may  relieve  against  all  substantial  errors  which  transcend  the  limits  of 
that  freedom.  And  there  has  also  been  a  general  advance  in  the  devel- 
opment of  the  rules  by  which  appellate  courts  (in  proper  cases)  re- 
weigh  the  evidence  on  which  facts  have  been  found  in  the  trial  courts. 

Hence  discussions  on  qtiestions  of  evidence,  in  our  appellate  courts, 
are  now  more  important  and  more  frequent  than  ever  before;  and 

[iii] 


IV  PREFACE. 

careful  practitioners  are  more  than  ever  accustomed  to  include  in 
their  preparation  for  trial,  an  examination  of  the  authorities  as  to  the 
mode  in  which,  in  the  present  condition  of  the  law,  the  cause  of  action 
or  defense  should  be  proven. 

Each  class  of  actions  has  its  peculiar  rules  of  proof.  These  are  the 
result  of  experience,  adapting  the  general  principles  discussed  in  the 
text-books  to  the  exigencies  of  justice  in  each  kind  of  litigation.  It 
is  not  enough  to  know  the  general  principles  which  are  to  be  applied. 
It  is  necessary  to  know  also  how  they  are  to  be  applied  and  limited  in 
the  particular  action  on  trial.  Such  special  rules,  though  less  artificial 
and  technical  than  formerly,  have  become,  under  the  new  procedure, 
more  numerous  and  important  than  ever.  On  questions  of  evidence 
the  conflict  apparent  among  text-writers  and  decisions,  often  arises  from 
supposing  that  general  principles  have  similar  application  and  effect  in 
all  classes  of  cases.  The  method  here  pursued  aims  to  give,  in  suc- 
cessive chapters,  under  the  title  of  each  principal  cause  of  action  and 
defense,  the  characteristic  rules  now  applied  by  our  courts  in  that  class 
of  cases,  together  with  an  indication  of  the  general  principles  on  which 
these  special  rules  rest,  and  by  which  they  are  to  be  extended  or  lim- 
ited, in  new  instances. 

The  method  chosen  for  the  statement  of  these  rules  is  that  which 
seemed  to  promise  the  best  practical  assistance  to  counsel  and  to  the 
court,  in  the  trial  of  issues ;  to  the  practitioner  generally  in  preparing 
for  trial  and  selecting  witnesses ;  and  also  to  the  pleader  in  framing 
issues. 

The  order  of  topics  pursued  first  disposes  of  questions  connected 
with  the  character  of  Particular  Classes  of  Parties,  as  likely  to  arise  in 
actions  of  almost  any  kind,  and  then  proceeds  with  Particular  Causes  of 
Action,  taking  first  those  in  which  the  main  proof  is  usually  of  facts 
raising  an  implied  contract  or  legal  duty ;  followed  by  those  involving 
writings  unsealed,  sealed,  or  of  record ;  then  those  turning  on  negli- 
gence or  tort ;  then  those  seeking  specific  relief,  founded  on  either  of 
these  kinds  of  transactions ;  and  finally  those  which,  in  a  greater  degree, 
depend  on  statutes,  &c.  Defenses  which  are  common  to  several  classes 
of  actions  are  not  treated  in  connection  with  each  cause  of  action,  but 
in  the  third  and  last  part  of  the  volume. 

The  arrangement  under  each  subject  requires  the  reader  to  analyze 
closely  his  cause  of  action  or  defense ;  and  thus  warns  him,  in  prepar- 
ing his  proofs,  not  to  overlook  any  element  which  the  case  may  involve. 
He  should  remember  that  he  is  necessarily  assumed  to  have  already 
decided  that  his  action  will  lie  or  his  defense  avail,  and  that  whatever 
may  here  be  said  upon  that  point  is  subordinate  and  incidental  to  the 


PREFACE.  V 

main  object,  viz.,  to  aid  him  in  proving  or  disproving  whatever  allega- 
tions in  the  pleading  before  him  may  be  material,  and  to  indicate  the 
various  phases  of  the  subject  under  which  the  evidence  adduced  may 
or  may  not  be  admissible.  The  practitioner  will  find  that  such  a  close 
analysis  of  the  probative  facts  of  a  cause  of  action  or  defense,  is  of 
the  utmost  value  in  giving  him  a  mastery  of  the  details  of  the  case  ; 
and  the  student  will  find  it. equally  useful  in  leading  him  to  an  under- 
standing of  the  law. 

If  the  rules  I  lay  down  are  stated  with  somewhat  more  conciseness 
and  certainty  than  is  usual  in  law  treatises,  it  is  not  because  I  have 
consciously  deferred  too  much  to  the  authority  of  reported  cases,  but 
because  I  believe  that  the  main  rules  of  proof  now  administered  by  our 
courts,  are  capable  of  clear  and  precise  statement,  upon  authority  which 
will  usually  be  controlling  at  nisi  prius.  I  have  endeavored  to  present 
them  thus  in  the  text :  rules  that  are  doubtful  or  of  secondary  value, 
I  have  sought  to  indicate  suitably  in  the  notes. 

Discussion  of  the  cases  cited,  and  their  relative  authority,  has  there- 
fore been  omitted ;  my  purpose  being  to  cite  those  of  importance  and 
value,  and  to  state  concisely  and  with  certainty  the  resulting  rules  ;  and 
to  cite  cases  of  minor  authority  so  far  as  they  justly  serve  to  extend, 
qualify,  or  apply  the  doctrine  of  the  leading  authorities  :  otherwise  to 
omit  them  or  refer  to  them  as  contra  to  the  rule  stated.  In  a  work 
covering  so  extended  a  field,  it  would  be  impracticable  to  cite  all  the 
cases  examined,  and  I  have  not  sought  to  multiply  but  rather  to  sift 
and  select  authorities. 

Upon  those  questions  on  which  the  adjudications  or  statutes  of  dif- 
ferent States  are  at  variance,  I  have  stated  the  rule  which  I  understand 
to  prevail  in  New  York,  calling  attention,  however,  to  questions  on 
which  there  is  a  serious  general  difference  of  opinion  ;  such,  for  instance, 
as  the  burden  of  proof  as  to  contributory  negligence,1  the  competency  of 
admissions  and  declarations  of  an  assignor  to  impair  the  claim  of  his 
assignee,2  the  effect  of  irregular  indorsement,3  and  the  like.  In  cases  of 
minor  importance  it  is  generally  assumed  that  the  reader  will  notice 
any  peculiar  rule  prevailing  in  his  own  jurisdiction. 

Discussion  of  general  principles  has  been  out  of  place,  except  rarely 
and  in  a  limited  degree,  where  it  has  seemed  necessary,  either  to  show 
how  those  principles  are  now  administered  in  the  American  courts 


Pages  594-96.  «  Pages  12,  13.  »  Pages  436-40. 


VI  PREFACE. 

somewhat  differently  than  indicated  in  tho  books,  or  to  aid  the  reader 
to  meet  vexed  and  unsettled  questions. 

In  reviewing  the  work  on  which  I  have  been  so  long  engaged,  and 
the  preparation  for  which  has  so  constantly  connected  itself  with  pro- 
fessional  practice,  I  am  not  unconscious  of  imperfections  and  inequal- 
ities in  its  execution ;  but  to  the  kindly  consideration  of  the  profession 
I  submit  it,  in  the  hope  that  it  may  often  aid  and  seldom  mislead. 

AUSTIN   ABBOTT. 

TIMI-:S  BUILDING,  NEW  YORK,  May,  1880. 


TABLE  OF  CONTENTS, 


PART  I. 

EVIDENCE  AFFECTING  PARTICULAR  CLASSES  OF  PARTIES. 


CHAPTER  I. 

ACTIONS    BY  AND  AGAINST  ASSIGNEES. 


PAGE 

Rules  applicable  to  assignees. . .  1 

Allegation  of  assignment  material  1 

Requisite  proof  of  assignment.  2 

Implied  assignment 2 

Statute  of  frauds 3 

Presumptive  evidence 3 

Consideration 4 

Gift 4 

Object,  when  material 5 

Best  and  secondary  evidence. ..  5 

Proof  of  execution 6 

Delivery  and  acceptance 6 

Assignment  with  schedules 6 

Assignment  by  corporation. ...  6 

Authority  of  officer  or  agent. ...  7 

Parol  evidence  to  vary  a  writing  7 

Equities  against  the  assignee.. .  8 

Jiona  fide  purchaser 8 

Notice  to  debtor 8 

Assignment  for  purpose  of  suit. .  8 

—  or  as  collateral  security 9 


PAGE 

22.  Assignees  in  insolvency 9 

23.  —  in  bankruptcy 9 

24.  Purchaser  from  official  assignee.  9 

25.  Assignees  for  benefit  of  creditors.  10 

26.  Testimony  of  assignor 10 

27.  Assignor's  declarations  not  com- 

petent in  favor  of  assignee ...  11 

28.  Their    competency    against    as- 

signee    11 

29.  —  if  made  before  assignor  was 

owner 11 

30.  —  if  made  after  he  ceased  to  be 

owner 11 

31.  —  if  made  during  l.is  ownership  12 

32.  Preliminary  question 13 

33.  Distinction  between  declarations 

and  transactions. 13 

34.  Declarations  admitted  in  case  of 

conspiracy 14 

35.  Receipt,  <fec.,  of  the  assignor. ...  14 

36.  Notice  to  produce 14 


CHAPTER    II. 

ACTIONS  BY  AND   AGAINST  ASSOCIATIONS. 
1.  Voluntary  associations 15  |  2.  Joint-stock  companies,  «tc 16 

CHAPTER    III. 

ACTIONS   BY  AND   AGAINST   CORPORATIONS. 


I.  PROVING  CORPORATE  EXISTENCE. 

1.  Pleading  as  to  corporate  existence  18 

2.  Strict  proof  not  usually  required.  18 

3.  Exceptional  cases 19 

4.  Incorporation  incidentally  in  issue  20 

5.  Legislative  sanction  necessary. . .  20 


G.  Domestic  corporation  —  General 

law  or  charter 21 

7.  Evidence  of  authenticity  of  statute  21 

8.  Nationul  bank    * 22 

9.  Corporation  of  sister  State 22 

10.  Corporation  of  foreign  State 23 

[vii] 


vm 


TABLE   OF   CONTENTS. 


CHAPTER  in. — ACTIONS  BY  AND  AGAINST  CORPORATIONS — continued. 


11.  Modes  of  proving  </«  facto  exist- 

ence   , 23 

12.  Acceptance  of  charter 24 

13.  Organization  under  general  law.  25 

14.  Official  permission  to  do  corpo- 

rate business 26 

15.  Disregard  of  statute  conditions.  26 

16.  Effect  of  proof  of  user 27 

17.  Mode  of  proving  user 27 

18.  Admission  of  incorporation  ....  28 

19.  Estoppel  against  the  company ..  28 

20.  Estoppel  against  those  dealing 

with  the  company 29 

21.  Estoppel   against  members  and 

subscribers 29 

22.  The  estoppel  liberally  applied . .  30 

23.  The  general  principle  as  to  proof 

of  incorporation 30 

24.  Materiality  of  date 30 

25.  Misnomer 31 

26.  Fraud,  forfeiture  or  non-user ....  31 

II.  CORPORATE  POWERS  IN  GENERAL. 

2*7.  New  powers 31 

28.  Distinction      between     original 

powers  of  corporation  and  del- 
egated powers  of  offici-r.s 32 

29.  Evidence  of  delegation  of  power  32 

30.  General  presumptions  as  to  cor- 

porate act? 33 

III.  CONTRACTS  BY  A  CORPORATION. 

81.  Implied  promises 34 

32.  Simple  contracts  in  writing 34 

33.  Sealed  instruments 35 

34.  Corporate  acceptance  of  deed,  <fcc.  87 
85.  Contract  ambiguous  as  to  party .  37 

TV.  TORTS  BY  A  CORPORATION. 

36.  False  representations  by  meeting  37 

37.  Frauds  by  directors,  <fec 38 

38.  Liability  for  wrongs  by  officers 

or  agents 38 

V.  MEETINGS  AND  BY-LAWS. 
89.  Evidence  of  regularity  of  meet- 
ings    38 


40.  Acts  by  pnrol 89 

41.  Pleading  by-laws,  <fec 40 

42.  Proof  of  by-laws 40 

VI.  AUTHORITY  OF  OFFFCERS,  AGENTS  AND 

MF.MBER8. 

43.  Evidence  of  appointment  of  offi- 

cers and  agents 40 

44.  Evidence  of  express  authority. .  41 

45.  Implied  scope  of  authority 41 

46.  Authority  implied  in  title  of  office  42 

47.  Testimony  of  officer  or  agent. . .  43 

48.  Ratification 43 

VII.   ALMISSIONS,  DECLARATIONS,  AND 
NOTICE. 

49.  Admissions  and  declarations  of 

members 43 

50.  Admissions  and   declarations  of 

officers  and  agents  authorized 

to  speak 44 

51.  Admissions     and      declarations 

made  as  part  of  the  res  gestce.     44 

52.  Admissions  and  declarations  be- 

fore incorporation 45 

53.  Notice 45 

VIII.    BOOKS  AND  PAPERS. 

54.  'Corporation  books  and  papers  as 

evidence 46 

55.  Statutory  records 46 

56.  Minutes. of  proceedings 46 

57.  Against  whom  evidence  of  cor- 

porate acts  is  competent 48 

58.  The  minutes  not  exclusively  the 

best  evidence 48 

59.  Authentication  of  corporate  books 

when  produced 40 

60.  Rough  minutes 50 

61.  Competency  of  copies 50 

62.  Reports 61 

63.  Foundation   for  secondary  evi- 

dence      C 1 

64.  Notice  to  produce 51 

65.  Parol  evidence  to  vary  corporate 

minutes 51 

66.  Accounts  and  business  entries. .     52 


CHAPTER  IV. 

ACTIONS  BY  AND  AGAINST  EXECUTORS  AND  ADMINISTRATORS. 


1.  Nature  of  official  character  and 

title 54 

2.  Necessity  of  proof  of  title,  under 

pleadings 55 

8.  Appropriate  mode  of  proof 56 

4.  Effect  of  letters  as  evidence. ...  56 

6.  Impeaching  the  letters 57 


6.  Best  and  secondary  evidence  of 

authority 58 

7.  Representative's  declarations  and 

admissions  competent  against 
the  estate 58 

8.  The  decedent'3  declarations  and 

admissions 69 


TABLE  OF  CONTENTS. 


IX 


CHAPTER  rv. — ACTIONS  BY  AND  AGAINST  EXECUTORS,  &c. — continued. 


9.  Judgments 60 

10.  Testimony  of  the  representative.  60 

11.  Testimony  of  interested  persons 

against  the  es'ate 60 

12.  The  New  York  rule 62 

IS.  What  parti t'S  are  excluded 62 

14.  "What  interested  witnesses  are  ex- 

cluded   63 

15.  Assignor,  or  source  of  title,  ex- 

cluded   64 

16.  What  persons  are  protected 64 

17.  Insanity 65 

18.  Objecting  to  the  testimony 65 


19.  Preliminary  question  of  compe- 

tency.      66 

20.  Moving  to  strike  out  incompetent 

part  of  testimony 66 

21.  Proof  of  an  interview 67 

22.  What  is  a  personal  transaction  or 

communication 67 

23.  Indirect  evidence 68 

24.  Effect  of  objecting  party  testify- 

ing, <fec 69 

25.  Form  of  offer  of  testimony  in  re- 

buttal      70 

26.  The  United  States  courts'  rule. . .     70 


CHAPTER  V. 

ACTIONS  BY  AND  AGAINST  HEIES  AND  NEXT  OF  KIN,  DEVISEES 

AND  LEGATEES. 


I.  DEATH. 

1.  Direct  testimony 72 

2.  Registry  of  death  or  burial. ...  72 
8.  Presumptions  of  death  and  of  the 

time  of  death 73 

4.  Circumstances  raising  a  natural 

presumption  of  death 73 

5.  Voyages,  and  other  special  perils  74 

6.  Seven  >  ears'  absence  in  case  of 

life  estates 75 

7.  Seven  years' rule  in  other  cases.  75 

8.  Absence  and  inquiry 75 

9.  Rebutting  the  presumption 70 

10.  The  time  of  presumed  death. ...  77 

11.  The  English  rulo 77 

12.  The  American  rule 77 

13.  Survivorship  in  common  casualty  78 

II.  MARRIAGE. 

14.  Burden  of  proof,  and  presump- 

tions   79 

15.  Direct  evidence  of  marriage. ...  79 

16.  Certificate  or  registry 80 

17.  Indirect  evidence  of  marriage..  81 

18.  Cohabitation  and  repute 81 

19.  Cohabitation  and  declarations..  82 

20.  Marriage  after  meretricious   in- 

tercourse    82 

21.  Second  marriage  during  absence.  83 

22.  Rebutting  evidence  of  marriage.  84 

23.  Foreign  law 85 

III.    ISSUE  OR  FAILURE  OF  ISSUE. 

24.  Burden  of  proof 85 

25.  Presumptions  as  to  failure  of  issue  85 

26.  Escheat 86 

27.  Possibility  of  issue  extinct 86 

28.  Registry  of  birth  or  baptism. ...  80 

29.  Consorting  as  a  family 87 


30.  Direct  testimony  to  age 87 

81.  Physician's  testimony  or  account.  87 

32.  Legitimacy :  Burden  of  proof  and 

presumptions 88 

33.  Parents'  testimony  and  declara- 

tions as  to  legitimacy 89 

IV.  HEARSAY  AS  TO  FACTS  OF  FAMILY  HIS- 
TORY (PEDIGREE). 

34.  Grounds  of  receiving  it:  and  its 

weight 90 

35.  What  facts  are  within  the  rule..  90 

36.  By  whose  declarations  such  facts 

may  be  proved 91 

37.  Family  records 92 

38.  Other  written  declarations 93 

39.  General  family  repute 94 

40.  Declarations  made  in  view  of  con- 

troversy   95 

41.  Repute  beyond  the  family — Ac- 

quaintance— Newspaper  notice 

— Insurance 95 

42.  Best  and  secondary  evidence. ...  96 

V.  REGISTRY  OF  FACTS  OF  FAMILY  HISTORY 
(PEDIGREE). 

43.  Registries  authorized  by  law. ...  97 

44.  Registries  not  authorized  by  law  98 

45.  Best  and  secondary  evidence. ...  99 

46.  Impeaching  the  registry 99 

VI.  JUDICIAL  RECORDS  SHOWING  FACTS  OF 

FAMILY  HISTORY  (PEDIGREE). 

47.  Letters  of  administration,  <tc. . . .  100 

48.  Judgments  and  verdicts 100 

VII.  IDENTITY. 

49.  Necessity  of  proof 101 

50.  Mode  of  proof Iu2 


TABLE  OF  CONTENTS. 


CHAPTEB  v. — ACTIONS  BY  AND  AGAINST  HEIRS,  NEXT  OF  KIN,  &c.— continued. 


VIII.  NATIONAL  CHARACTER,  AND  DOMICILE. 

51.  Citizenship  and  alienage 1"2 

62.  Naturalization 102 

63.  Nature  of  tlie  question  of  domicile  103 

64.  Presumptions  and  material  facts.  103 

65.  Change  of  domicile 106 

66.  The  intent 106 

67.  Evidence  of  residence  and  of  in- 

tent   107 

IX.    WILLS. 

68.  Presumptions,    and     burden    of 

proof  as  to  intestacy 109 

69.  Domestic  will  proved  by  produc- 

ing probate 109 

60.  Decree  of  probate  court,  how  far 

conclusive 110 

61.  Formalities  of  execution Ill 

62.  Testamentary  capacity 113 

63.  Conduct  and  declarations  of  tes- 

tator   115 

64.  Opinions  as  to  mental  soundness.  116 

65.  Hereditary  insanity 119 

66.  Inquisitions  and  other  adjudica- 

tions     119 

67.  Undue  influence, — the  burden  of 

proof ..  119 

68.  Indirect  evidence 121 

69.  Relevant  facts 121 

70.  Declarations  and  conduct  of  tes- 

tator   122 

71.  Fraud 123 

72.  Revocation 123 

73.  Marring  the  document 123 

74.  Disappearance  of  the  document.  124 

75.  Testator's  declarations 124 

76.  Subsequent  testamentary  act. ...  126 

77.  Constructive  revocations 125 

78.  Action  to   establish  lost  or  de- 

stroyed will 126 

79.  Foreign  will 128 

80.  Ancient  will 128 

X.    EXTRIKSIC  EVIDENCE  AFFECTING  WILLS. 

81.  Effect  of  the  statute  of  wills 128 

82.  Legitimate  objects  of  extrinsic 

evidence 129 

83.  Reasons  for  its  liberal  admission.  130 

84.  Reasons  fr  its  strict  exclusion. .  131 

85.  Exceptional  rule  as  to  evidence 

in  rebuttal 132 

86.  Extrinsic  aid  in  reading 132 

€7.  Alterations 133 

88.  Mistakes 134 

89.  Extrinsic  aid  in  testing  validity.  135 

90.  Rebutting  evidence 136 

91.  Extrinsic  aid  in  applying 136 

92.  — in  identifying  the  person....  136 

93.  —  in  case  of  names  of  relation- 

chip 137 


PAGE 

94.  —  in  case  of  corporate  designa- 

tion   138 

95.  —  applying  erroneous  designa- 

tion   138 

96.  —  rejecting  false  words 138 

97.  —  adverse  claimants 139 

98.  —  circumstantial  evidence  of  in- 

tention   141 

99.  — case  of  gifts  to  charities ....  141 

100.  —  or  misnomer 142 

101.  —  direct  evidence  of  intention.  143 

102.  —  aid  in  applying  to  the  prop- 

erty intended 143 

103.  —  identifying  the  property. . . .  144 

104.  —  rejecting  false  words 144 

105.  —  uncertainty  as  to  which  of 

two  parcels 145 

106.  —  nature  of  estate  given 146 

107.  —  raising  a  trust 146 

108.  Extrinsic  aid  in  executing  the  will  147 

109.  —  as  to  the  administrative  char- 

acter of  the  gift 147 

1 10.  —  as  to  bequest  to  creditor ....  147 

111.  —  or  to  heirs  or  next  of  kin  in 

advance 148 

112.  — as  to  presumptively  cumula- 

tive gifts 148 

113.  —  as  to  ademption 148 

114. . —  as  to  charging  legacies 149 

115.  —  as  to  execution  of  power. ...  150 

116.  Time  of  declarations  bearing  on 

intention 150 

XI.  ADVANCEMENTS. 

117.  The  general  presumption 150 

118.  Advancement  by  deed  of  real 

property 152 

119.  Purchase  in  name  of  child 152 

1 20.  Other  transfers 153 

121.  Entries  in  account 154 

122.  Declarations  and  admissions  as 

to  advancements 154 

123.  Value 155 

124.  Testamentary.clauses  as  to  ad- 

vancements    156 

XII.  TITLE,  AND  DECLARATIONS  OF  ANCES- 
TOR, HEIR,  <feo. 

125.  Ancestor's  title,  and  successor's 

election ....  156 

126.  Declarations  and  admissions  of 

the  ancestor  as  to  title,  Ac. . .  157 

127.  Declarations  of  third  persons. .  159 

128.  Declarations  of  successors,  rep- 

resentatives and  beneficiaries.  159 

129.  Judgments 1 60 

XIII.   ACTION  TO  CHARGE  HEIR,  NEXT  OF 
KIN,  <fec.,  WITH  ANCESTOR'S  DEBT. 

130.  Material  facts 161 

131.  Mode  of  proof 161 


TABLE  OF  CONTENTS. 

CHAPTEE  VI. 

ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 


I.  GENERAL  PRINCIPLES. 

1.  Marriage 163 

2.  Foreign  law 164 

8.  Competency  of  husband  or  wife 

as  witness 164 

4.  Their  admissions  and  declarations  105 
6.  Agency  of  ono  for  the  other. . . .  167 

6.  Estoppel '. 167 

7.  Judgments 168 

8.  Evidence  of  husband's  title.  .• . . .   1 68 

9.  Evidence  of  wife's  title 169 

10.  Evidence  of  transfer  by  one  to 

the  other 172 

11.  Tacit  transfers  173 

12.  The  old  rule :  presumption  in  fa- 

vor of  husband 173 

13.  The  new  rule:    presumption  in 

favor  of  title 174 

14.  Evidence  of  his  application  of 

her  funds 1 74 

15.  Evidence  or  the  wife's  convey- 

ance   . .  .  174 

16.  Impeaching  her  conveyance. ...  175 

17.  Evidence  of  wife's  separate  busi- 

ness    175 

II.  ACTIONS  BT  OR  AGAINST  HUSBAND. 

18.  Actions  by  him  founded  on  mari- 

tal right 176 


19.  Defenses 17€ 

20.  Actions  against  him  founded  on 

marital  obligation 177 

21.  Actions  founded  on  her  agency . .   177 

22.  Defenses 177 

23.  Action  for  necessaries 178 

24.  Defenses  ."..... 178 

25.  Causes  of  separation 179 

III.   ACTIONS  BY  A  MARRIED  WOMAN. 

26.  Pleading  in  her  action  on  con- 

tract    180 

27.  Evidence  of  the  contract 180 

28.  Her  action  for  tort 181 

IV.  ACTIONS  AGAINST  HER. 

29.  Pleading  in  action  against  her  on 

contract 181 

30.  Evidence  of  the  contract 181 

31.  The  making  of  the  contract 182 

32.  The  English  rule  as  to  charging 

separate  estate 182 

33.  The  New  York  rule 183 

34.  —  direct  benefit  to  separate  es- 

tate    184 

35.  Action  against  her  for  necessaries  185 

36.  Action  against  her  for  fraud. . . .  185 

37.  Husband's  coercion  of  wife 185 


CHAPTER   VII. 

ACTIONS  AFFECTING  PARTIES  IN  A  JOINT  OR  COMMON  INTER- 
EST OR  LIABILITY. 


1.  The  general  principle 186 

2.  Joint  debtors 187 

8.  Defendants,  absent  or  defaulted.   187 
4.  Admissions,  <fec.,  of  persons  net 

parties  to  the  action 187 

6.  Admissions  and  declarations  of 
parties  having  a  common  in- 
terest or  liability 188 


6.  — joint  interest  or  liability....  188 

7.  —  joint  promisees 1 90 

8.  Notice 190 

9.  Declarations  of   conspirators  or 

confederates 190 

10.  Preliminary  question  as  to  con- 
nection. .  191 


CHAPTEE  VIII. 

ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 


I.  GENERAL  PRINCIPLES. 

1.  Different  proof  of  title,  in  differ- 

ent cases 193 

2.  Legaltitle 19t 

8.  Contracts  in  official  capacity ....  1 94 
4.  Acts  by  part  of  board  or  body. .   195 


5.  Demand  and  notice 196 

6.  Former  judgments 196 

II.  ACTIONS  BY  OFFICERS. 

7.  Pleading  by  officer  suing  as  such  196 

8.  Proof  of  title 196 


zii 


TABLE   OF  CONTENTS. 


CHAPTER  vm. — ACTIONS  BY  AND  AOAINST  PUBLIC  OFFICERS. — continued. 


9.  Process  as  supporting  a  cause  of 

action 197 

10.  Return,  adduced  in  his  own  ac- 


tion. 


197 

11.  Action  for  emoluments 197 

III.    ACTIONS  AGAINST  OFFICERS. 

12.  Plaintiff's  pleading 198 

13.  Plain  tiff's  proof    of   the  official 

character  of  defendant  or  his 
deputy 198 


PAGE 

14.  Cause  of  action 198- 

15.  Return,  as  evidence  against  the 

officer 199 

16.  Public    action   for   refusing    to 

serve 200 

17.  Pleading  by  officer  defendant. . .  201 

18.  Defendant's  proof  of  official  char- 

acter in  justification 201 

19.  Process  as  a  protection  to   de- 

fendant   .  201 


CHAPTEE  IX. 

ACTIONS  BY,  AGAINST,  OR  BETWEEN  PARTNERS. 


I.    ACTIONS  BY  PARTNERS. 

1.  Allegation  of  partnership 203 

2.  Proof  of  partnership 204 

3.  Parol  evidence  to  vary  the  con- 

tract sued  on 204 

4.  Firm  books  as  evidence  in  favor 

of  the  firm   205 

5.  Declarations 205 

6.  Defendant's  evidence 205 

7.  Matter  in  abatement 205 

II.    ACTIONS   AGAINST   PARTNERS. 

8.  Allegation  of  partnership 206 

9.  1'roof  of  partnership 206 

10.  Best  and  secondary  evidence...  207 

11.  Indirect  evidence  of  partnership.  207 

12.  Holding  out  to  the  public 208 

13.  Representations      to    particular 

creditor 209 

14.  Admissions  and  declarations  to 

prove  partnership 209 

15.  Hearsay 210 

16.  Ownership 210 

17.  Dormant  and  secret  partners...  210 

18.  Community  of  profits;  the  com- 

mon law  rule 211 

19.  — the  English  rule 212 

20.  Evidence  in  respect  to  date 212 

21.  Assumption  of  debts  by  incoming 

partner 213 

22.  Variance  as  to  number  of  part- 

ners    213 

23.  Presumption  of  partner's  author- 

ity  214 

24.  Evidence  as  to  the  scope  of  the 

business,   <fec 214 

25.  Evidence  of  express  authority. .  214 

26.  Question   to   whom   credit   was 

given 216 

27.  Parol  evidence  to  charge  firm  on 

individual  signature 216 

28.  —  of  sealed  instrument 216 

29.  Evidence  of  ratification 217 


30.  Evidence  of  deceit  or  fraud 217 

31.  Evidence  of  'other  torts 217 

32.  Admissions  and   declarations  of 

partners 218 

33.  Acts,  admissions,  <fec.,  after  dis- 

solution   218 

34.  Notice,  tender  and  demand 219 

35.  Defendant's  evidence  to  disprove 

partnership '. .  220 

36.  Proving  a  limited  partnership. .   220 

37.  Matter  in  abatement 221 

38.  Evidence  of  known  want  of  au- 

thority   222 

39.  Transactions  in  the  interest  of 

one  partner 222 

40.  Burden  of    proving   dissolution 

and  notice 222 

41.  Mode  of  proving  dissolution  ....  223 

42.  — notice 223 

IIL  RULES  PECULIAR  TO  SURVIVING  PART- 
NERS. 

43.  Actions  by  survivor  224 

44.  Actions  against  survivor 225 

45.  Actions  against  representatives  of 

deceased  partner 225 

rV.  ACTIONS  BETWEEN  PARTNERS. 

46.  Allegation  and  burden  of  proof 

of  partnership 226 

47.  Proof  of  partnership 226 

48.  Order  of  proof 227 

49.  Evidence  of  firm  or  individual 

transactions 228 

50.  Title  to  real  property 228 

51.  Evidence  to  charge  member  with 

assets 229 

52.  Evidence  to  credit  member  with 

payments  or  share 229 

53.  Partnership  books,  <fcc.,  as  evi- 

dence    229 

54.  Evidence    of     voluntary   settle- 

ment   230 


TABLE   OF  CONTENTS. 


Xlll 


CHAPTER   X. 

ACTIONS  BY  AND  AGAINST  RECEIVERS. 


1.  Allegation  of  appointment,  and 

right  of  action 231 

2.  Evidence  of  appointment 231 

3.  Leave  to  sue 232 


PAGE 

4.  Evidence  of  transactions  of  de- 
fendant    232 

6.  Action  against  receiver 232 


CHAPTEE  XI. 

ACTIONS  BY  AND  AGAINST  TRUSTEES. 


1.  Express  trusts 233 

2.  Demand  before  suit,  and  notice. .   234 

3.  Trustees'  receipts 235 

4.  Compromises 235 

6.  Justification  of  dealings  with  the 

estate 236 

6.  Admissions  and  declarations  of 

the  ccstui  que  trust 236 


7.  Admissions  and  declarations  of 

the  trustee 238 

8.  Judgments 237 

9.  Presumption  of  conveyance  by 

trustee 237 

10.  Constructive  and  resulting  trusts.  237 


PART    II. 

EVIDENCE  AFFECTING  PARTICULAR  CAUSES  OF  ACTION. 


CHAPTER 


ACTIONS  FOR  MONEY  LENT. 


1.  Grounds  of  action 

2.  Delivery  of  money  not  enough. . 

8.  Direct  testimony  to  loan 

4.  Delivery  to  third  person 

6.  To  which  of  several  was  credit 

given 

6.  Request 

7.  Authority  of  agent 

8.  Parties  to  joint  adventure. . . 

9.  Joint  debtors 

10.  Written  evidence 

1 1.  Due  bill 

12.  Defendant's  check    in   favor 

plaintiff 


239 
240 
240 

240 


243 
244 


of 


244 


13.  Defendant's  checks  on  plaintiff. .  244 

14.  Defendant's  receipt 244 

15.  Plaintiff's  check 244 

16.  Plaintiff's  account  books 245 

17.  Character  in  which  the  parties 

dealt 246 

18.  Connected  and  collateral  agree- 

ments   246 

19.  Mortgage 247 

20.  Medium  of  repayment 247 

21.  Defenses;  Disproving  loan 247 

22.  Illegality 248 


XIV 


TABLE  OF  CONTENTS. 


CHAPTER   XIII. 

MONEY  PAID  TO  DEFENDANT'S  USE. 


PAGE 

1.  Grounds  of  action 249 

2.  Previous    request,    or    previous 

promise  to  reimburse 250 

3.  Pnrol  evidence  to  vary  a  writing  251 

4.  Subsequent  promise  to  reimburse  251 

6.  Agent's  action  against  principal.   252 
G.  Obligation  to  pay  what  defendant 

ought  rather  to  have  paid. . . .  253 

7.  Surety's  action  against  principal 

or  co-surety 254 

8.  Implied  promise  to  indemnify  . .  256 

9.  Action  between  parties  to  nego- 

tiable paper 257 

10.  Proof  of  payment 258 

11.  —  by  oral  evidence 258 


12.  —  by  producing  defendant's  or- 

der in  favor  of  third  person. .   259 

13.  — by  plaintiff's  check  or  accounts  259 

14.  —  by  the  payee's  receipt  or  sur- 

render of  evidence  of  debt . . .   260 

15.  Judgment  agsiinst  plaintiff  in  ac- 

tion of  which  defendant  had 

notice 261 

16    Medium  of  payment 263 

17.  Amount 264 

18.  Source  of  the  fund  paid 264 

19.  Object  and  application  of  the  pay- 

ment    265 

20.  Demand  and  notice 265 

21.  Defenses 266 


CHAPTEE  XIV. 

ACTIONS  TO  RECOVER  BACK  MONEY  PAID  BY  PLAINTIFF  TO 
DEFENDANT  UNDER  MISTAKE,  DURESS,  EXACTION  OR  FRAUD, 
OR  THE  CONSIDERATION  FOR  WHICH  HAS  FAILED. 


1.  The  payment 268 

2.  Mistake 268 

3.  Subsequent  promise  to  repay  . . .   270 

4.  Forged  or  counterfeit  paper  ....  270 


5.  Duress 270 

6.  Fraud 271 

7.  Failure  of  consideration  . .          .   272 


CHAPTEE   XV. 

ACTIONS  FOR  MONEY  RECEIVED  BY  DEFENDANT   TO   PLAINT- 
IFF'S USE. 


1.  Grounds  of  action 273 

2.  The  pleadings 273 

3.  Plaintiff's  title  to  the  fund 274 

4.  The  receipt  of  the  money  by  de- 

fendant  275 

5.  —  by  an  agent  of  defendant ....  276 

6.  The  medium  and  amount  of  pay- 

ment     ,.  277 


7.  Action  by  depositor  against  bank  277 

8.  Bank's  action  for  over -draft  ....  279 

9.  Action  by  principal  against  his 

agent 279 

10.  Demand  and  notice 281 

11.  Defendant's  evidence  ..  .  281 


CHAPTEE  XVI. 

ACTIONS  ARISING  ON  SALES  OF  PERSONAL  PROPERTY. 


I.  ACTIONS  FOR  THE  PRICE  OF  GOODS,  <fcc. 

1.  Grounds  of  action 285 

2.  Plaintiff's  title  to  the  goods,  <fec.   286 

3.  License  to  sell. . .    287 

4.  Ordinary  sale  by  delivery 287 

5.  Evidence  of  express  agreement. .   287 

6.  —  made  by  letter  or  telegram  . .  289 


7.  Requisite    memorandum    under 

statute  of  frauds 292 

8.  General   rule   as  to   explaining 

writing  by  parol 294 

9.  General  rule  as  to  proof  of  usnge.  296 
10.  Plaintiff  the  real  party  in  interest, 

though  not  so  named  in  contract.  298 


TABLE   OF  CONTENTS. 


XV 


CHAPTER  xvi.— ACTIONS  ARISING  ON  SALES  OF  PERSONAL  PROPERTY. — cont. 


11.  Purchase  by  defendant's  agent. .  298 

12.  Defendant  liable  as  undisclosed 

principal 300 

13.  Defendant  liable  though  acting 

as  agent 801 

14.  Assumption  of  order  originally 

given  by  a  third  person    ....  302 

15.  Question  to  whom  credit  was 

given 802 

16.  Identifying  the  thing  agreed  for.    303 

17.  Quality  und  description 803 

18.  Quantity 304 

19.  Price  agreed 805 

20.  Value 30(3 

21.  Market  value. 307 

22.  Prices  current 309 

23.  Opinions  of  witnesses  as  to  qual- 

ity nnd  value 310 

24.  Time  for  performance  or  pay- 

ment  : 312 

25.  Conditions  and  warranties 813 

28.  Options 813 

27.  Subsequent  modification 8M- 

28.  Delivery  or  offer 811 

29.  Delivery  through  carrier 813 

30.  Tender... 316 

31.  Packing  and  freight 316 

32.  The  passing  of  the  title 316 

83.  Delivery  to  satisfy  the  statute  of 

frauds 318 

34.  Part  payment  to  satisfy  the  stat- 

ute of  frauds 319 

35.  Various  rules  admitting  docu- 

ments otherwise  incompetent.  319 

36.  Contemporaneous  memoranda. ..   819 

37.  Memoranda  refreshing  memory. .   820 

38.  Memoranda  made  by  a  third  per- 

son in  the  usual  course  of  busi- 
ness     322 

39.  Shop-books  and  other  accounts 

of  a  party  offered  in  his  own 
favor 322 

40.  When  using  part  of  an  account 

admits  the  rest   326 

41.  Memoranda  as  part  of  the  na 

ffcstce 326 

42.  Admissions  and  promises  to  pay.  82<i 

43.  Auction  sules 327 

44.  Sales  through  a  broker 828 

45.  Demand 830 

46.  Interest 830 

47.  Non-payment 831 


II.  DEFENDANT'S  CASK. 

48.  Denial  of  contract 332 

49.  Set-off  against  plaintiff's  agent. .   333 
60.  Denial  of  ngency  binding  defend- 
ant..  333 


51.  Plaintiff  an  agent  for  defendant.  .  333 

52.  Defendant  not   the  buyer,    but 

agent  for  another  ..........   334 

53.  By  bidding  at  auction.  .........  834 

54.  Rescission  ....................  334 

55.  Recoupment  ................  335 

56.  Defects  in  title,  quantity  or  qual- 

ity ........................  335 

57.  Deceit  .......................  336 

58.  Inconsistent  remedies  ..........  836 

59.  Wager  contracts  ..............  836 

III.  ACTION    AGAINST    BUYER,  FOR    DAMAGES 

FOR  NOT  ACCEPTING. 

60.  General  principles  ............  836 

61.  Readiness  to  perform  ..........   337 

IV.  ACTION    AGAINST    SELLER    FOR    NON-DE- 

LIVERY. 

62.  General  principles  .........  ...  337 

63.  Orders,  and  acceptance  ........  337 

G4.  Readiness  to  perform  ..........  338 

65.  Object  in  buying  .............  338 

6(5.  Defendant's  case.  —  Only  an  agent.  839 

67.  —  intermediate    destruction    of 

thing  sold  .................  339 


V.  ACTIONS  AND   DEFENSES  ARISING  ONT 

BREACH   OF   WARRANTY. 

68. 

09. 
70. 
71. 
72. 
73. 
74. 


Grounds  of  the  action 339 

Pleading 339 

Warranty  of  things  in  action . . .  340 

Warranty  of  title 340 

Express  warranty   340 

Agent's  authority  to  warrant. . .   341 
Implied  warranty  on  an  executed 
sale 842 

75.  —  on  sale  partly  or  wholly  exec- 

utory    843 

76.  Sale  by  sample 3 

77.  Presumption  of  knowledge 344 

78.  Parol  evidence  of  warranty  on 

written  sale 344 

79.  Parol  evidence  to  explain  war- 

r  mty 845 

80.  Variance  in  the  contract,  and 

breach 845 

Breach 846 

Opinions  of  witnesses 

Admissions  and  declarations  . . 
Omission  to  return  the  article  . 

Damages 

Disproof  of  implied  warranty.. 
Buyer's  knowledge  of  defect. . . 
Seller's  good  faith. 


81. 

82. 

83. 
84. 
85. 
86. 
87. 

88. „ 

89.  Former  adjudication 350 


347 
348 
348 
348 
349 
349 
849 


XVI 


TABLE  OF  CONTENTS. 


CHAPTER   XVII. 

ACTIONS  FOR  USE  AND  OCCUPATION  OF  REAL  PROPERTY. 


PAGE 

1.  Grounds  of  the  action 861 

2.  The  relation  of  landlord  and  ten- 

ant     851 

3.  Express  agreement 852 


4.  Parties 863 

6.  Defendant's  occupation 863 

6.  Measure  of  recovery 864 

7.  Admissions  and  declarations. ...  356 


CHAPTER   XVIII. 

ACTIONS  FOR  THE  HIRE  OF  PERSONAL  PROPERTY. 
1.  Agreement  to  pay 356    |    2.  Value 


356 


CHAPTER   XIX. 

ACTIONS  ARISING  ON  CONTRACTS  FOR  SERVICES. 


I.  ACTIONS  FOR  COMPENSATION  BY  THE  PER- 

SON EMPLOYED. 

1.  Grounds  of  action 857 

2.  License 858 

3.  Implied  contract 358 

4.  Presumption    that  service  was 

gratuitous 859 

6.  Admissions  and  promises 360 

6.  Question  who  was  employer  ....  860 

7.  Declarations  of  employees 361 

8.  Express  contract  when  admissible 

under  general  allegation 361 

9.  Express  contract,  if  subsisting, 

must  be  put  in  evidence 862 

10.  What  are  contracts  within  the 

rule 362 

II.  Extra  work 862 

12.  Variances 363 

13.  Requisite   memorandum    under 

statute  of  frauds 363 

14.  Oral  evidence  to  vary  writing  ..   864 

1 5.  Kind  of  service 865 

16.  Measurement 365 

17.  Term  of  service;  holidays,  "day's 

work,"  <fec 365 

18.  Rate  of  compensation 366 

19.  Fixed  price,  or  quantum  meruit..   367 

20.  Value  of  service 368 

21.  Bill  rendered  not  a  limit 868 

22.  Opinions  of  witnesses 368 

23.  Modification  of  contract 37o 


24.  Performance  ...  - 870 

25.  Certificates  of  performance 871 

26.  Excuse 372 

27.  Shop-books  and  other  accounts  of 

a  party  offered  in   his  own 
favor 872 

28.  Defenses — what  admissible  under 

denial   373 

29.  Disproof  of  employment 374 

oO.  Payment 875 

31.  Former  adjudication 375 

32.  Limitations 375 


II.    RULES    PECULIARLY  APPLICABLE  TO    PAR- 
TICULAR KIND9  OF  SERVICE. 

Advertising 376 

Artists;  architects;  authors....  376 

Attorney  and  counsel 377 

Board  and  lodging 379 

Brokers 879 

Officers  and  promoters  of  corpo- 
rations   880 

Parent  and  child 882 

Physicians,  <fec 382 

Rewards 383 


ACTIONS  FOR  WRONGFUL  DISMISSAL,  or 

REFUSAL  TO  RECEIVE. 

Dismissal  or  refusal 884 

Defenses 384 


CHAPTER  XX. 

ACTIONS  ON  VARIOUS  EXPRESS  PROMISES  TO  PAY  MONEY. 


1.  General  princip'es 885 

2.  Promise  to  pay  purchase-money .   885 
8.  —  incurnbrance 886 


4.  Promise  to  third  person  to  pay 

plaintiff 886 

5.  Promise  to  plaintiff  to  pay  third 

person 886 


TABLE  OF  CONTENTS. 


XVU 


OHAPTEE  XXI. 

ACTIONS  ON  NEGOTIABLE  PAPER. 


L    RULES  APPLICABLE  TO  NEGOTIABLE    PAPER 
GENERALLY 

PAGE 

1.  General  order  of  proof. 389 

2.  Production 389 

3.  Lost  or  destroyed  paper 890 

4.  Proof  of  execution 391 

6.  Admissions 392 

6.  Testimony  of  supposed  writer. . .   392 

7.  Direct  testimony  to    particular 

signature  393 

8.  Witness  who  knows  the  hand- 

writing generally 893 

9.  Means  of  knowledge 394 

10.  Opinion  or  belief. 395 

11.  Refreshing  memory 895 

12.  Testing  the  witness 396 

13.  Comparison  of  hands 396 

14.  Opinions  of  witnesses 896 

15.  Matters  of  description 397 

16.  Qualifications  of  witness 398 

17.  Photographs 398 

18.  Mark 398 

19.  Identity  of  names 398 

20.  Fictitious  person 399 

21.  Joint  makers,  <fec 899 

22.  Married  women 399 

23.  Agent's  signature 399 

24.  Partnership  signature 400 

25.  Corporation  paper 401 

26.  Oral  evidence  to  show  real  party  402 

27.  Evidences  of  title 403 

28.  Delivery 404 

29.  Consideration 404 

80.  Accommodation  paper 406 

81.  Alterations 406 

32.  How  pleaded 407 

83.  Mode  of  proof 407 

34.  Blanks 408 

35.  Marks  of  cancellation. . 408 

86.  General  rule  as  to  oral  evidence 

to  vary 409 

87.  Date 409 

38.  Time  of  payment 409 

89.  Amount 410 

40.  Medium 410 

41.  Interest 411 

42.  Place  of  payment 411 

43.  Defeasance 412 

44.  Particular  fund ;    agreement   to 

Bet-off — to  renew 412 

45.  Subsequent  modification 413 

46.  Indorsement ' 413 

47.  Oral  evidence  to  vary  an  indorse- 

ment  414 

48.  Indorsement  as  a  transfer  of  title.  4 1 5 

49.  Demand 416 

60.  Non-payment 416 

61.  Indorsements  of  payments,  <fcc. ..  416 

B 


52.  Competency  of  a  party  to  the  in- 

strument to  impeach  it.     The 
New  York  rule 416 

53.  —  the  United  States'  Court  rule  416 

54.  Admissions  and  declarations. ...  417 

55.  Foreign  law 418 

II.    ACTION  BY  PAYEE  (OR  ORIGINAL  "  BEAR- 
ER ")  AGAINST  MAKE  it. 

56.  Plaintiff's  case  418 

III.    ACTION 'AGAINST  ACCEPTOR. 

57.  Acceptance 419 

58.  Other  facts 420 

59.  Promise  to  accept 420 

60.  Several  parts,  or  duplicates 421 

IV.    ACTION    AGAINST    DRAWER  J    ON   NON- 
ACCEPTANCE. 

61.  Refusal  to  accept 421 

G2.  Excuse  for  non-presentment....  421 

"V.  AGAINST  DRAWER,  <fcc. ;  ON  NON-PAY- 
MENT. 

63.  Acceptance  and  presentment. . . .  422 

YL  ACTIONS  AGAINST  INDORSEES,  <fec. 

64.  Execution  of  the  instrument. ...  422 

65.  Pleading  facts  to  charge  indorser  423 

C6.  Cogency  of  the  evidence 423 

67.  Time  of  demand 423 

G8.  Place  of  demand 424 

G9.  Authority  to  demand 424 

70.  Identity  of  maker  or  drawe.  or 

authority  of  agent  or  servant.  424 

71.  Production  of  the  instrument.  . .  4'J5 
7'3.  Due  diligence  in  demand 425 

73.  Official  protest  as  evidence 425 

74.  Sealed  certificate 428 

75.  Unsealed  certificate 4  '28 

76.  Copy 428 

77.  Secondary  evidence  of  statutory 

certificate 428 

78.  Memoranda  to  refresh  memor\-. .  429 

79.  Memoranda  of  deceased  person. .  429 

80.  Legal  notice  to  charge  indorser.  430 

81.  Identity  of  person  served 430 

82.  Executors  and  administrators. . .  430 

83.  Time  of  service 430 

84.  Actual  notice 430 

85.  Due  diligence  by  the  holder. . . .  431 

86.  Place  of  directing  notice 431 

87.  Due  diligence  in  inquiry 4S2 

88.  Evidence  of  tho  contents  of  the 

notice 432 


TABLE  OF  CONTENTS. 


CHAPTER  xxi. — ACTIONS  ON  NEGOTIABLE  PAPER — continued. 


89.  Extrinsic  evidence  as  to  imper- 

fect notice 432 

90.  Mailing 433 

9 1 .  Inference  of  delivery  or  mailing, 

from  ordinary  course  of  busi- 
ness  433 

92.  Admissions  of  demand  made  and 

notice  received 434 

93.  Indirect  evidence  of  notice.  1 . .  435 

94.  Waiver  of  demand  or  notice. ..  435 

95.  Want  of  funds  as  an  excuse. . ...  436 


VII.  IRREGULAR  INDORSEMENT. 

96.  Paper     against     irregular    in- 

dorser:  New  York  doctrine.  436 

97.  —  defenses     438 

98.  —  subsequent  transferee  against 

irregular  indorser 438 

99.  The   United  States  Court  doc- 

trine  438 

100.  Oral  evidence  to  vary  the  ascer- 
tained contract 440 


VIIL  DEFENSES  GENERALLY. 

101.  Defenses  avr.il  ble   against  nil 

holders,  whether  bonaf.de  or 
otherwise 440 

102.  Failure  of  want  of  consideration  4,1 

103.  Accommodation  paper 442 

104.  Fraud 443 

105.  Duress 443 

106.  Impeaching  plaintiff's  title. ...  443 

107.  Collateral  security  : 4 44 

108.  Transfer  after  maturity 445 

109.  Suretyship  and    dealing    with 

principal 445 

110.  Payment 446 

111.  Qualifying  agreement 447 


IX.  DEFENDANT'S    EVIDENCE    TO    REQUTR* 

PLAINTIFF  TO  PROVE  TITLE  AS  A  HOLD- 
ER FOU  VALUE  BEFORE  MATURITY. 

PAGE 

112.  The  general  rule 447 

113.  Failure  or  want  of  consideration  448 

X.  PLAINTIFF'S  EVIDENCE  OF  TITLE  AS  HOLD- 

ER FOR  VALUE  BEFORE  MATURITY'. 

114.  Burden  of  proof 448 

115.  Evidence  that  transfer  was  be- 

fore maturity 448 

1 16.  —  and  before  notice 449 

117.  —  and  for  value 449 

118.  Evidence  of  good  faith 449 

119.  "Taking  up" 449 

XI.  DEFENDANT'S  EVIDENCE  THAT  PLAINTIFF 

19  NOT  A  HOLDER  IN  GOOD  FAITH. 

120.  Bar!  faith.... 450 

121.  Notice. 450 

1 22.  Negligence 461 

XTI.  MUNICIPAL  AND  OTHER  COUPON  BONDS. 

123.  Title 451 

124.  Evidence    of     regularity     and 

power ......    452 

125.  Notice  of  defect,  <fcc 452 

XIII.  BANK  CHECKS. 

126.  Stamp 453 

127.  Title 4:.3 

1 28.  Oral  evidence  to  vary 453 

]  29.  Laches 454 

]  3'*.  Action  against  drawer 454 

131.  Action  against  the  bank 454 

XIV.  STOCK  AND  PREMIUM  NOTES. 

1 32.  Stuck  notes 455 

133.  Premium  notes 455 

1 34.  Losses  and  assessments 455 

135.  Defenses 456 


CHAPTER   XXII. 

ACTIONS  ON  NON-NEGOTIABLE  PROMISSORY  NOTES. 
Peculiar  rules 4£7 

CHAPTEE   XXIII. 

ACTIONS  ON  ACCOUNTS  STATED. 


1.  Grounds  of  action 458 

2.  Pleading 458 

8.  Character  of  the  parties 459 

4.  The  account  and  its  statement . . .  459 

6.  The  promise 459 

6.  Testimony  of  witness :  Production 

of  account 460 

7.  Resgestce 4(U 

8.  Express  assent 461 


9.  Tacit  assent  to  nccount  rendered  461 

10.  Defendant's  evidence  to  disprove 

assent 462 

1 1.  Incapacity 462 

12.  Impeaching  the  account  itself. ..  462 

13.  Consideration 463 

14.  Omissions  and  errors 463 

15.  Offsets 463 

16.  Limitations. . .  461 


TABLE  OP  CONTENTS. 


XIX 


CHAPTER  XXIV. 

ACTIONS  ON  AWARDS. 


PAGE 

1.  Fact  of  submission 465 

2.  Its  scope 466 

8.  Promise  to  abide  award 466 

4.  Umpire,  Ac 466 

5.  Oath 466 

6.  Enlargement  of  time 466 

7.  Making  award 467 

8.  Presumptions  in  favor  of  awards  .  467 


9.  Extrinsic  evidence  to  vary 468 

10.  Effect  of  award 468 

11.  Competency  of  arbitrator  as  wit- 

ness   468 

12.  Defenses ;  Pleading 469 

13.  — omissions;  Excess  of  author- 

ity   469 

14.  — other  objections 470 


CHAPTEE  XXV. 

ACTIONS  ON  GUARANTIES. 


1.  Oral  contract 471 

2.  Promise  to  answer  for  debt,  <fec.,  of 

another 471 

3.  Execution  of  contracts 472 

4.  Consideration 472 

6.  Rules  oi'  interpretation 473 

6.  Oral  evidence  to  vary 473 


7.  Transactions  under  the  guaranty  474 

8.  Non-payment     or    non-perform- 

ance    474 

9.  Admissions  and   declarations  of 

principal  debtor 474 

10.  Judgments 475 

1 1.  Defenses 475 


CHAPTEE  XXVI. 

ACTIONS  ON  CONTRACTS  OF  INSURANCE. 


I.  GENERAL  BULBS. 

1.  Action  on  preliminary  agreement  476 

2.  Execution  of  policy 477 

8.  Delivery 478 

4.  The  application 478 

6.  Authority  and  scope  of  agency. .  480 

6.  Payment  of  premium 481 

7.  Waiver  of  non-payment;  Excuse 

for  failure 481 

8.  Renewal    482 

9.  Ordinary  course  of  proof.   Prima 

facie  case 482 

10.  Warranties  , 482 

11.  General  rule  as  to  oral  evidence 

to  vary  policy 483 

12.  Circular  or  prospectus 484 

13.  Mistake 485 

14.  Usage 485 

15.  Ownership  or  insurable  interest.  486 

16.  Mode  of  proving  ownership 487 

17.  The  peril 488 

18.  Loss 488 

19.  Value ;  Damage 489 

20.  Preliminary  proofs 489 

21.  Notice  to  company 490 

22.  Waiver  of  conditions  or  forfeit- 

ure  491 

23.  Adjustment 491 

24.  Declarations  and  admissions  of 

officers  and  agents 492 


25.  Defenses 492 

26.  —  false  representations 492 

27.  —  false  warranty 492 

28.  —  concealment  . . . .  '. 493 

29.  —  materiality  to  the  risk 493 

30.  —  over-valuation 494 

31.  —  charge  of  crime 494 


II.  RULES  PECULIARLY    APPLICABLE    TO   MA- 

BINE  INSURANCE. 

32.  Interest 4P6 

33.  Warranties 496 

34.  Seaworthiness 496 

35.  Rating 498 

36.  Shipment 498 

37.  The  voyage 499 

88.  Weather 499 

89.  Loss 499 

40.  Barratry 600 

III.  RULES  PECULIARLY  APPLICABLE  TO  LIFE 

AND  ACCIDENT  INSURANCE. 

41.  Disease ;  Death 601 

42.  Suicide  and  insanity  . .    601 

43.  Declarations   and  admissions  of 

the  subject 602 

44.  Accident  insurance 603 


TABLE  OF  CONTENTS. 


CHAPTER  XXVII. 

ACTIONS    ON    BONDS,    COVENANTS,    AND    OTHER   SEALED    IN- 
STRUMENTS. 


I.  GENERAL  BULBS. 

PAGE 

1.  The  making  of  the  contract 604 

2.  Execution 604 

8.  Seal 606 

4.  Sealed  authority 606 

6.  Statutory  conditions 606 

6.  Delivery 607 

7.  Qualified  delivery 607 

8.  Escrow 607 

9.  Acceptance 607 

10.  Date 608 

11.  Consideration 608 

12.  Oral  evidence  to  vary  the  obliga- 

tion   608 

13.  Practical  construction 609 

14.  Lost  instrument         610 

15.  Subsequent  modification 510 

16.  Breach 510 

17.  Damages 611 

18.  Fraud;  Failure  of  consideration .  611 

19.  Reformation 612 

20.  Declarations   and  admissions  of 

principal 613 

II.  BONDS. 

21.  Estoppel  by  recital 513 


PAGB 

22.  Breach 614 

23.  Administration  bonds 614 

24.  Bottomry  bonds 616 

25.  Indemnity  bonds 616 

26.  Official  bonds 616 

III.    ClIARTER-PARTIES. 

27.  General  rule  as  to  oral  evidence 

to  vary 617 

28.  Usage 617 

29.  Terms;    measurement;    cargo; 

capacity 517 

30.  Performance 518 

31.  Damages 618 

32.  Demurrage,  or  damages  for  de- 

tention   518 

IY.  COVENANTS  FOB  TITLE. 

33.  Implied  covenants 619 

34.  Covenant  of  warranty    619 

35.  —  of  seizin  and  right  to  convey.  620 

36.  —  against  incumbrances    ../...  620 

37.  —  for  quiet  possession  or  enjoy- 

ment    620 


CHAPTER  XXVIII. 

ACTIONS  ON  LEASES. 


1 .  Allegation  of  lease 622 

2.  Mode  of  proving  the  contract. . .  623 

8.  Conditional  delivery 624 

4.  General  rule  as  to  oral  evidence 

to  vary 624 

6.  Parties 525 

6.  Usage 525 

7.  Practical  construction 626 

8.  Implied  covenants    . .  526 

9.  Identifi'ing  the  premises 527 

10.  The  date  and  term 627 

11.  Rate  of  rent 527 

12.  Plaintiff's  title .528 


13.  Possession  not  essential 528 

14.  Tenant's  estoppel 628 

15.  Adverse  title 630 

16.  Forfeiture 530 

17.  Assignment 631 

18.  Demand 682 

19.  Repairs 632 

20.  Surrender ;  destruction  of  prem- 

ises     532 

21.  Apportionment 633 

22.  Payment 633 

23.  Eviction 634 

24.  Acts  of  waste .  634 


CHAPTER  XXIX. 

ACTIONS  ON  JUDGMENTS. 


I.  GENERAL  PRINCIPLES. 

1.  The  several  modes  of  proof 635 

2.  Certified  copies 535 

S.  Exemplifications 636 

4.  Sworn  copies 536 


5.  Imperfect  records,  etc 686 

6.  Lost  judgment 588 

7.  Date 638 

8.  Identity  of  parties 638 

9.  Docketing 689 


TABLE   OF  CONTENTS. 


XXI 


CHAPTER  xxix. — ACTIONS  ON  JUDGMENTS — continued. 


10.  Impeaching 639 

11.  Reversal 539 

12.  Satisfaction 639 

II.  JUDGMENTS  OF  COURTS  WITHIN  THE 

STATE. 

13.  The  New  York  practice 540 

14.  Justice's  judgment 640 

III.  RULES  PECULIAR  TO  JUDGMENTS  OF 
COURTS  OF  SISTER  STATES,  <fec. 

15.  Different  methods  of  proof 641 

16.  What  judgments  may  be  proved 

under  the  act .... 641 

1 7.  Requisites  of  proof  under  the  act.  542 

18.  Certifying  officers 642 

1 9.  Clerk's  attestation 643 

20.  Seal 643 

21.  Judge's  certificate 643 

22.  Presumption  in  favor  of  jurisdic- 

tion . .  .   644 


PAGE 

23.  Service 646 

24.  Constructive  service 647 

25.  Appearance 648 

26.  Effect  of  judgment 648 

27.  Justice's  judgment 649 

28.  Former  adjudication 649 

29.  Appeal  pending  . .    649 

30.  Limitations 649 

IY.  UNITED  STATES  COURTS  AND  THEIB 
JUDGME^S. 

31.  Judgments  of  those  courts  proved 

elsewhere 649 

32.  The  practice  in  the  United  States' 

courts 550 

Y.  FOREIGN  JUDGMENTS. 

33.  Mode  of  proof 650 

34.  Effect 651 


CHAPTER  XXX. 

ACTIONS  AGAINST  BAILEES,  AGENTS,  &o. 


I.  GENERAL  PRINCIPLES. 

1.  Grounds  of  action 552 

2.  Contract?  of  bailment 653 

3.  Oral  evidence  to  vary  writing  . .   653 

4.  Plaintiff's  title ;  bailee's  estoppel.  654 
6.  Eviction 654 

6.  Burden  of  proof  as  to  breach  of 

duty 555 

7.  Qualified  refusal 5">t> 

8.  Value  and  damage 557 

II.  SPECIAL  CLASSES  OF  BAILEES  AND 
AGENTS. 

9.  Gratuitous  bailments 657 

10.  Attorneys 657 

11.  Brokers     568 

1 2.  Collecting  bankers 658 

13.  Factors 659 

14.  Forwarders 660 

15.  Hirers  of  chattels 660 

16.  Innkeepers 660 

17.  Pledgees 661 

18.  Tows 661 

19.  Warehousemen 662 

20.  Wharfingers;    place-hire 662 

III.    ACTIONS  AGAINST  COMMON  CARRIERS 
OF  GOODS. 

21.  Defendant  a  common  carrier. . . .  663 

22.  Delivery  to  carrier 6C3 

23.  Authority  of  receiving  agent  . . .   664 


24.  Implied  contract 665 

23.  Address;  instructions;  "C. O. D."  565 

26.  Express  contract 565 

27.  Authority  to  make  special  con- 

tract   666 

28.  Description  of  goods 666 

29.  Amount 666 

30.  Condition 666 

31.  Instructions:   route:  terminus..  667 

32.  Stowage 668 

33.  Time :  delay 668 

34.  Burden  of  proof  as  to  loss,  and 

cause  of  loss 669 

35.  Contract  of  connecting  lines. . . .  670 

36.  Non-delivery 670 

37.  Negligence 671 

88.  Cause  of  injury 671 

39.  Theft  or  robbery 672 

40.  Conversion 672 

41.  Plaintiffs  title 672 

42.  Oral  evidence  to  explain  or  vary 

bill  or  receipt 673 

43.  Usage 673 

44.  Declarations  of  agents 678 

45.  Defenses :  generally 673 

46.  — contract  for  restricted  liability  674 

47.  —  evidence  of  shipper's  assent; 

the  New  York  rule 674 

48.  —  the  Illinois  rule 675 

49.  —  fraud  as  to  value 675 

60.  — -.  limited  liability  under  the  act 

of  Congress.. 676 


xxii 


TABLE  OF  CONTENTS. 


CHAPTER  xxx. — ACTIONS  AGAINST  BAILEES,  AGENTS,  &c. — continued* 


PAGE 

51.  Carriers'  delivery;  Notice  to  con- 
signees   576 

62.  "Act  of  God";  Inevitable  acci- 

dent   677 

TV.  ACTIONS  AGAINST  COMMON  CARRIERS 

OF  PASSENGERS  AM>  BAGGAGE. 

63.  Plaintiff  a  passenger 677 

64.  Express  contract ;  Ticket 678 


FACE 

65.  Authority  of  agency 579 

56.  Baggage 679 

67.  — loss  or  non-delivery 680 

68.  Negligence 680 

69.  Authority  of  servant 680 

60.  Damages 6bO 

61.  Defenses:  Restrictions  of  liabil- 

ity;   Extrinsic    evidence    to 
vary  ticket 681 

62.  — contributory  negligence 681 


CHAPTER  XXXI. 

ACTIONS  FOR  NEGLIGENCE. 


I.  GENERAL  RULES. 

1.  Burden  of  proof 682 

2.  The  pleading 683 

8.  Elements  of  direct  proof 683 

4.  Degrees  of  negligence 688 

6.  Privity 583 

6.  The  casualty  aa  evidence  of  neg- 

ligence     683 

7.  Other  negligences 684 

8.  Time  of  existence  of  defect 585 

9.  Other  defects 685 

10.  Incompetency 585 

11.  Reputation 685 

1 2.  Intemperance 685 

13.  Opinions  of  witnesses 686 

14.  Declarations  and  admissions  gen- 

erally     687 

15.  Plaintiff's  declarations 687 

16.  Defendant's  admissions,  declara- 

tions, and  conduct 687 

17.  Admissions  and  declarations  of 

servants,  <fcc 688 

18.  —  of  third  person  injured 689 

19.  Strangers 689 

20.  Violation  of  statute 689 

21.  — of  municipal  ordinance 590 

22.  Usage 690 

23.  Ownership  of  the  thing  causing 

the  injury 690 

24.  Connection  of  cause  with  injury.   691 

25.  Notice  of  defect:  Request 691 

26.  The  delinquent  an  agent  or  serv- 

ant of  defendant 691 

.  27.  Contractor  or  servant 692 

28.  Common  employment 592 

29.  Negligent  employment  of  unfit 

servant. .  . .  693 


!  30.  Plaintiff's  title 694 

81.  Manner  of  injury 594 

32.  Condition  of  person  or  thing  in- 

jured    694 

33.  Burden  of  proof  as  to  contribu- 

tory negligence 694 

34.  —  the  United  States  court  rule..  695 

35.  — the  Massachusetts  rule 695 

36.  _  the  New  York  rule 696 

37.  Disproving  contributory  negli- 

gence           .   697 

38.  Contributory  negligence  of  in- 

fants    597 

39.  Effect  of  peril  on  witnesses 698 

40.  Damages 698 

41.  Loss  of  earnings : 698 

42.  Suffering  and  impaired  powers. .  698 

43.  Continuing  effect   599 

44.  Testimony  of  the  party 699 

45.  Expressions  of  Buffering  . ; 599 

46.  Opinions  of  witnesses 600 

47.  Plaintiff's  family  and  circum- 

stances      601 

48.  Defendant's  wealth 601 

49.  Exemplary  damages 601 

60.  Action  for  causing  death 601 

IL  DEFENSES. 

61.  Disproof  of  negligence 602 

52.  Advice 602 

53.  Former  acquittal 602 

54.  Plaintiff's  contributory  riegli- 

gence 602 

65.  Plaintiff's  conduct  illegal 603 

66.  Mitigation 603 


CHAPTER  XXXII. 

ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 
3.  Damages 


1.  The  undertaking  to  carry 604 

2.  Burden  of  proof  as  to  cause  of 

error  . .  .  604 


604 


TABLE  OF  CONTENTS. 


xxiii 


CHAPTER  XXXIII. 

ACTIONS    BY    AND    AGAINST     SHERIFFS,     CONSTABLES    AND 

MARSHALS. 


1.  Official  character  and  acts 605 

2.  Officer's  action  against  receiptor..  605 
8.  Officer's  action  for  conversion  or 

trespass 605 

4.  —  for  price  of  goods  sold 606 

5.  — .  against  attorney  or  party,  for 

fees 606 

6.  Action  against  officer,  for  failure 

to  serve  or  collect  process  . . .  606 

7.  —  defenses 606 

8.  Action  against  officer  for  storage  607 


PAGE 

9.  —  for  loss  of  property  from  ens- 
tody  608 

10.  —  for  failure  to  pay  over 608 

11.  — for  taking  insufficient  security.  608 

12.  —  for  escape 609 

13.  —  defense*.   610 

14.  Action  for  failure  to  return 610 

15.  —  for  false  return 611 

16.  Admissions,    declarations,    and 

conduct  of  deputies,  etc. ...  612 


CHAPTEE  XXXIV. 

ACTIONS  FOR  DECEIT  OR  FRAUD. 


1.  Frame  of  the  action 614 

2.  The  representation 614 

8.  Liberal  rule  of  evidence ;  cogency.  615 

4.  Falsity ...  616 

6.  —  as  to  solvency,  <fec 616 

6.  —  reason  to  believe  one  insolvent, 

<fec 617 

7.  Scienter 618 

8.  Intent  to  deceive 618 


9.  Plaintiff's  reliance  on  the  repre- 
sentations    619 

10.  Damages 619 

11.  Oral  evidence  to  vary  writing  . .  619 

12.  Testimony  of  the  parties 620 

13.  Declarations  of  conspirators. ...  621 

14.  Defenses 621 

15.  — •  former  adjudication 621 


CHAPTEE  XXXV. 

ACTIONS  FOR  CONVERSION. 


1.  Frame  of  the  complaint 622 

2.  The  existence  and  identity  of  the 

thing 622 

3.  Plaintiff's  title 623 

4.  Possession  as  evidence  of  title. . . .  623 

5.  Mode  of  proving  possession 623 

6.  Mode  of  proving  source  of  title  . .  623 

7.  Title  of  mortgage 625 

8.  Equitable  title:  Lien 625 

9.  Plaintiff  owner,  notwithstanding 

void  sale 625 


10.  The  conversion 626 

11.  Demand 627 

12.  Value 627 

13.  Declarations  of  former  owner. . .  6'J7 

14.  Title  in  defense 627 

15.  Title   derived  through  wrong- 

doer   628 

16.  Illegality 628 

17.  Mitigation  of  damages 628 


CHAPTEE  XXXVI. 

ACTIONS  FOR  TRESPASS  TO  PERSONAL  PROPERTY. 


1.  Plaintiff's  title  or  possession 629 

2.  The  act  of  trespass 629 

8.  Value  and  damages 629 

4.  Admissions  and  declarations 630 

6.  Character 630 


6.  Action  for  wrongful  levy 680 

7.  —  defendant's  sanction 681 

8.  — justification 681 

9.  —  exemption  from  execution  . . .  688 
10.  Justification  by  tax  collector  . . .  683 


XXIV 


TABLE  OF  CONTENTS. 


CHAPTEE  XXXVII. 

ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY. 


6.  Defenses;  Disproof  of  trespass ..  637 

7.  —  justification 637 

8.  — defendant's  title  and  possession  687 

9.  —  easements 638 

10.  —  license 638 


1.  Plaintiff's  title 634 

2.  Possession 685 

3.  Acts  of  trespass 635 

4.  The  purpose  of  an  act 686 

5.  Damages 636 


CHAPTER    XXXVIII. 

ACTIONS  FOR  NUISANCE. 


1.  Plaintiff's  title  and  possession. . . .   640 

2.  Easements 640 

8.  Highway  .  ^ 64 1 

4.  Defendant's  title 641 

5.  The  nuisance 641 

6.  The  injury 642 


7.  Cause  and  effect 642 

8.  Notice  and  request  to  abate  ....  643 

9.  Damages 643 

10.  Former  adjudication 643 

1 1.  Defendant's  right  or  title 648 

12.  Reasonable  care,  etc 644 


CHAPTER  XXXIX. 

ACTIONS  FOR  INJURIES  BY  ANIMALS. 


1.  Wild  beasts 645  I  3.  Notice 

2.  Dangerous  character 645  | 


645 


CHAPTER  XL. 

ACTIONS  FOR  ASSAULT  AND  BATTERY. 


1.  Assault,  by  whom  committed. . . .  646 

2.  By  servant,  <fec 646 

3.  Manner  and  circumstances 647 

4.  Plaintiff  the  aggressor 647 

5.  Intent  or  motive 648 

6.  The  res  gestcB  of  an  assault 648 

7.  Criminal  conviction    649 

8.  Admissions  and  declarations  ....  649 


9.  Requisite  cogency  of  evidence  . .  649 

10.  The  injury  and  damages  .......  649 

11.  Defenses :  Justification 650 

12.  — plaintiff  the  aggressor 650 

13.  —  provocation 650 

14.  —  character 651 

15.  —  previous  punishment 651 


CHAPTER  XLI. 

ACTIONS  FOR  MALICIOUS  PROSECUTION. 


1.  Grounds  of  action 652 

2.  The  prosecution 652 

3.  Defendant's  agency 653 

4.  Several  co-defendants 653 

5.  Plaintiff's  innocence 653 

6.  Want  of  probable  cause 663 

7.  Malice , .  654 


8.  Termination  of  the  proceeding. .   664 

9.  Damages 654 

10.  Defenses;  Truth  of  the  charge ..  655 

11.  —  probable  cause 655 

12.  —  freedom  from  malice 655 

13.  — advice  of  counsel 655 


TABLE   OF   CONTENTS. 


XXV 


CHAPTEE  XLII. 

ACTIONS  FOR  FALSE  IMPRISONMENT. 


1.  General  rules 667 

2.  Grounds  of  action 66*7 

3.  Legal  process,  dec. 657 


4.  Damages 

5.  Justification  and  mitigation. 


PAGE 
.  667 
.  667 


CHAPTEE  XLIII. 

ACTIONS  FOR  SLANDER  OR  LIBEL. 


1.  Order  of  proof 669 

2.  Inducement 669 

8.  Plaintiff's  vocation,  <fcc 669 

4.  Good  repute 660 

6.  Slander 660 

6.  —  its  utterance 661 

7.  Publication  of  libel 662 

8.  Place  and  time  of  publication  . . .  663 

9.  —  contents 663 

10.  Meaning  of  ambiguous  words  . . .  664 

11.  Their  application  to  the  plaintiff.  665 

12.  Circulation 665 

13.  Falsity 665 


14.  Malice 666 

15.  Action  on  privileged  communica- 

tion   667 

16.  Slander  of  title 668 

17.  Damages 668 

18.  Defenses  :  Explaining  the  words  669 

19.  — pri  vileged  communication. ...  670 

20.  —  justification 670 

21.  —  former  adjudication 671 

22.  —  mitigation 672 

23.  —  plaintiff's  character 673 

24.  —  mode  of  proving  character . . .  674 

25.  Rebuttal 674 


CHAPTEE   XLIV. 

ACTIONS  FOR  BREACH   OF   PROMISE   OF  MARRIAGE. 


1.  Mutual  promises 676 

2.  Letters 677 

8.  Affection 677 

4.  Breach 678 


5.  Damages 678 

6.  Defenses 678 

7.  —  justification  of  breach 679 

8.  —  mitigation 679 


CHAPTEE  XLV. 

ACTIONS  FOR  SEDUCTION  OR  ENTICING  AWAY. 


1.  Husband's  action 681 

2.  Master's  action 681 

8.  Parent's  action 681 

4.  Seduction .  682 


5.  Loss  of  service 682 

6.  Good  faith 682 

7.  Character 682 

8.  Defenses.   688 


CHAPTEE  XL VI. 

ACTIONS  FOR   CRIMINAL   CONVERSATION. 


1.  Competency  of  witnesses 684 

2.  M  Triage 684 

8.  Affection  nnd  domestic  happiness.   685 
4.  Criminal  intercourse .  685 


6.  Loss  of  consortahip ;  Damages...  685 

6.  Defenses 686 

7.  Character . .  , .  687 


xxvi 


TABLE   OF  CONTENTS. 


CHAPTER  XL VII. 

ACTIONS  TO  RECOVER  POSSESSION  OF  SPECIFIC  PERSONAL 
PROPERTY   (REPLEVIN). 


1.  Existence  and  identity  of  the  thing.  688 

2.  Plaintiff's  ownership 688 

8.  Defendant's  taking  and  possession.  689 

4.  Fraud 690 

6.  Demand. 690 


6.  Damages £90 

7.  Declarations   and    admissions    of 

former  possessor 690 

8.  Defenses 690 


CHAPTER  XL VIII. 

ACTIONS  TO  AFFECT  THE   TITLE   OR  POSSESSION  OF  REAL 

PROPERTY. 


L   ACTION'S  TO  BECOVER  THE   POSSESSION 

OF   REAL   PROPERTY.       (EJECTMENT.) 

1.  Plaintiff's  title , 691 

2.  Title  of  State 692 

8.  Possession  as  evidence  of  title. . .  692 

4.  Title  by  deed 693 

6.  —  delivery  and  date 694 

6.  —  parties 695 

7.  —  alterations 696 

8.  —  connected  instruments 697 

9.  —  consideration 697 

10.  — oral  evidence  to  vary  or  ex- 

plain writings 698 

11.  —  boundaries 699 

12.  —  title  under  judicial  or  statutory 

authority 700 

18.  —  on  execution  sale 702 

14.  —  on  surrogate's  sale 703 

15.  — on  tax  sale 703 

16.  Grantor's  title 706 

17.  State  grant 705 

18.  Landlord  and  tenant 706 

19.  Mortgagor  and  mortgagee 707 

20.  Vendor  and  purchaser 707 

21.  Entry 707 

22.  Title  by  descent  or  devise 707 

23.  Dower 707 

24.  Curtesy 708 

25  Title  under  ancient  instrument. .  708 

26  Lost  instrument,  and  secondary 

evidence 709 

27.  Presumed  grant 709 


28.  Deed  void  for  adverse  possession.  710 

29.  Impeaching  on  equitable  grounds.  710 

30.  Admissions  and  declarations. ...  710 

31.  Recitals 712 

32.  Estoppels 713 

33.  Former  adjudication 713 

34.  Defendant's  possession ;  Ouster ..  714 

35  Mesne  profits 714 

36  Defenses 714 

87.  —  adverse  possession 715 

38.  I3ona  fide  purchaser 715 

II.  ACTIONS  TO  DETERMINK  CONFLICTING 
CLAIMS. 

39.  Mode  of  proof. 717 

III.  ACTIONS  TO  REMOVE  CLOUD  ON  TITLE. 

40.  Mode  of  proof. 718 

IV.  ACTIONS  OF  FORECLOSURE. 

41.  Foreclosure  of  vendor's  lien 719 

42.  Foreclosure  of  mortguge   .......  719 

43.  Defendant's  liability,  demand  and 

default 720 

44.  Defenses 721 

V.  ACTIONS  TO  REDEEM. 

45.  Mode  of  proof.( 722 

VI.  ACTIONS  OF  PARTITION. 

46.  Mode  of  proof. 723 


CHAPTER  XI/IX. 

ACTIONS  BETWEEN  VENDOR  AND  PURCHASER. 


1.  The  contract 725 

2.  Oral  evidence  to  explain 726 

3.  Implied  covenants :  time 727 

4.  Title 727 

5.  Plaintiff's  performance:  breach.   727 

6.  Value 728 

7.  Contract  merged  by  deed 728 


8.  Actions  to  recover  back  purchase- 

money 729 

9.  Fraud  or  misrepresentation 729 

10.  Specific  performance :    the  con- 

tract   729 

11.  — oral  con  tract  partly  performed.  730 

12.  —  plaintiff's  title,  and  perform- 

ance  ...731 


TABLE  OF  CONTENTS. 


XXVll 


CHAPTER   L. 

ACTIONS  FOR  REFORMATION  OR   CANCELLATION   OF 
INSTRUMENT. 


1.  Nature  of  the  action 732 

2.  The  instrument  impeached 732 


3.  Grounds  of  impeachment 732 


CHAPTER  LI. 

ACTIONS  BY  JUDGMENT   CREDITORS. 


1.  Judgment. 736 

2.  Execution 736 

3.  Indebtedness  to  plaintiff. 736 

4.  Fraud 737 

5.  The  consideration 738 

6.  Indebtedness  to  other  creditors .  738 


7.  Voluntary  settlement 738 

8.  Intention  of  the  debtor 739 

9.  —  of  his  grantee 739 

10.  Admissions  and  declarations. ...  740 

11.  Defenses 741 

12.  — evidence  of  consideration  paid.  741 


CHAPTER   LIT. 

ACTIONS  FOR  DIVORCE. 


1.  Marriage 743 

2.  Fraud 743 

3    Impotence 743 

4.  Adultery 743 

6.  —  circumstantial  evidence 744 

6.  —  cogency  of  proof. 745 

7.  —  opinions  of  witnesses 745 

8.  —  limits  of  the  issue  of  adultery 

in  respect  to  time  and  place . .  745 


9.  —  and  as  to  paramour 746 

10.  —delay '. .  746 

11.  — character 746 

12.  Cruelty 746 

1 3.  Witnesses 747 

14.  Confessions  and  admissions 747 

15.  Condonation 748 


1.  Office. 


CHAPTER   LIII. 

ACTIONS   OF   QUO   WARRANTO. 
, 749   |   2.  Corporations.. 


750 


CHAPTER   LIV. 

ACTIONS  FOR  INFRINGEMENT   OF   TRADE  MARKS. 


1.  Plaintiff's  title 751 

2.  Resemblance  of  defendant's  mark.  751 

3.  Intent. 752 


4.  Damages 758 

5.  Witnesses 753 

6.  Defenses 753 


TABLE  OF  CONTENTS. 


CHAPTER    LV. 

ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS  AND  COPYRIGHTS. 


I.   PATENTS. 

1.  Burden   of  proof:    General   evi- 

dence of  validity 765 

2.  Novelty  of  invention 756 

8.  Utility 756 

4.  Patentee  the  original  and  first  in- 
ventor . .  .   757 

6.  Specifications:  Construction:  Ex- 
tent of  claim 767 

6.  Title 758 

7.  Extension:  Renewal:  Reissue..  758 

8.  State  of  the  art 759 

9.  Infringement , .   759 

10.  Witnesses:  Models 760 

11.  Admissions  and  declarations. . . .  760 

12.  Certified  copies 760 

13.  Damages 761 

14.  Defenses :  General  issue :  Burden 

of  proof 761 


PAGE 

15.  —  title ;  license 762 

16.  —  defendant's  patent 762 

17.  —  the  statute 762 

18.  —  fraud 763 

19.  — description  in  printed  publica- 

tion    768 

20.  —  prior  knowledge  or  use 763 

21.  —  public  use  or  sale  before  appli- 

cation; abandonment 764 

22.  —  requisites  of  the  statutory  no- 

tice or  answer 765 

23.  —  plaintiff's  failure  to  mark .   765 

II.  COPYRIGHTS. 

24.  Plaintiff's  rights 766 

25.  Infringements 766 


CHAPTER  LYI. 

ACTIONS  FOR  VARIOUS  CAUSES  CREATED  OR  DEFINED  BY 

STATUTES. 


I.  MECHANIC'S  LIEN. 

1.  Mode  of  proof. 767 

II.  INDIVIDUAL  LIABILITY  OF  STOCKHOLDERS 

AND    TRUSTEES   OF   CORPORATIONS   AND 
JOINT   STOCK   COMPANIES. 

2.  Incorporation :  Bankruptcy 768 

8.  Defendant  a  stockholder 768 

4.  Defendant  a  director  or  trustee. .    769 

III.  PENALTIES. 

6.  Statute 770 

6.  Municipal  ordinance. 770 

7.  Violation 771 

8.  Excepted  cases 771 

9.  Knowledge  of  the  law 772 

10.  Knowledge  of  facts 772 

11.  Knowing  or  intentional  violation.  772 

12.  Admissions  and  declarations. ...  773 

13.  Character 773 

14.  Cogency  of  proof 773 

15.  Obstructing  highways 773 

16.  Selling  liquors 774 

IV.  ACTIONS  (UNDER  civn.  DAMAGE  LAW) 

FOR  CAUSING  INTOXICATION. 

17.  Ground  of  action 775 

18.  Order  of  proof 775 

19.  Relation  of  plaintiff  to  the  drunk- 

ard     776 

20.  Sale  or  gift  of  liquor 776 

21.  Liability  of  salesman 77C 


22.  —  of  principal 776 

23.  Connecting  defendant  with  sales- 

man   777 

24.  Connecting  defendant  with  busi- 

ness             777 

25.  Connecting  sale  with  intoxication.  777 

26.  Character  of  liquor 778 

27.  Knowledge  and  intent  of  seller..   778 

28.  Fact  of  intoxication 779 

29.  Liability  of  owner  and  lessor. . .   779 

30.  Contributory  negligence 779 

31.  Damages 779 

32.  —  to  the  person 780 

33.  — to  property 780 

34.  —  to  means  of  support 780 

85.  Exemplary  damages 781 

36.  Defenses; — Limitations 782 

37.  —  sale  as  medicine 782 

38.  —  other  sellers  contributing  to 

injury 782 

39.  —  plaintiff's  connivance  or  negli- 

gence    782 

40.  — former  adjudication;   satisfac- 

tion   783 

V.  PROCEEDINGS  IN  REM  FOB  FORFEITURE. 

41.  Burden  of  proof. 783 

42.  Knowledge  and  notice 783 

43.  Admissions  and  declarations. . . .   784 

44.  Cogency  of  proof 784 

YL  ACTIONS  ON  RECOGNIZANCES. 

45.  Mode  of  proof. 784 


TABLE  OF  CONTENTS. 


XXIX 


CHAPTER  LVII. 

PROCEEDINGS  IN  ADMIRALTY. 
1.  Mode  of  proof. 785 


PART  III. 

EVIDENCE  AFFECTING  PARTICULAR  DEFENSES. 


CHAPTER  LVIII. 

DEFENSES  IN  ABATEMENT. 


1.  Parties.. 


786 


2.  Another  action  pending. 


FAOE 

.   786 


CHAPTER,  LIX. 

DEFENSES  DENYING  OR  IMPEACHING  THE  CONTRACT  SUED  ON. 


I.  DENIAL  OF  ASSENT. 

1.  Fraud  or  deceit 787 

2.  Mistake 788 

3.  Duress 788 

4.  Want  of  consideration 788 

5.  Statute  of  frauds 789 

6.  Forgery     789 

7.  Alterations 789 

II.  ILLEGALITY  OF  CONTRACT. 

8.  General  rules 789 

9.  Compounding  felony 790 

10.  Sunday  laws 790 

11.  Usury  :  pleading ;  and  burden  of 

proof. 791 


12.  —  estoppel  by  certificate,  <fcc. . . .  792 

13.  —  oral  evi  Icnce 792 

14.  —  variance 792 

15.  —  intent 792 

16.  —  covers  for  usury 794 

17.  —  act  of  agent  or  co-trustee ....  794 

18.  — inception 795 

19.  — declarations  and  admissions. .  795 

III.  INCAPACITY  OF  CONTRACTING  PARTY. 

20.  Infancy 796 

21.  — new  promise:  admissions  and 

declarations 796 

22.  Insanity 797 


CHAPTER   LX. 

PAYMENT  OR  OTHER  DISCHARGE. 


I.  PAYMENT. 

1.  Pleading;  and  burden  of  proof..  798 

2.  Oral  evidence ;  Res  gestce 799 

3.  Authority  to  pay 800 

4.  Agent's  authority  to  receive. . . .  800 
6.  —  presumed  from  agency  in  sale.  800 

6.  —  from  possession  of  security, 

<fcc 801 

7.  Payment  to  assignor 802 

8.  —  to  executors,  trustees,  Ac. ...  802 

9.  —  to  sheriff   802 

10.  Payment  by  mail 803 

11.  —  by  check  or  draft 803 

12.  —  by  note,  <fcc.,  of  debtor  or  third 

'person. 804 


13.  —  by  obligation  of  joint  debtor, 

<fcc 806 

14.  —  by  delivery  of  property 806 

15.  Payment  of  collateral 806 

16.  Receipts 806 

17.  Part  payment,  in  full 807 

18.  Admissions;   entries  and  memo- 

randa    808 

19.  Possession  of  instrument;  indorse- 

ments  809 

20.  Presumption  of  payment  from  sub- 

sequent transactions 809 

21.  Circumstantial  and  corroborative 

evidence 810 

22.  Application  by  the  debtor 810 


TABLE   OF  CONTENTS. 


CHAPTER  LX. — PAYMENT  OB  OTHER  DISCHARGE — continued. 


PAGE 

23.  —  by  the  creditor. 811 

24.  —  by  the  court 811 

25.  Presumption  of  payment  from 

lapse  of  time 812 

IT.  ACCORD  AND  SATISFACTION. 

26.  Mode  of  proof,  and  effect 814 

III.  ACCOUNT  STATED. 

27.  Mode  of  proof,  and  effect 815 

IV.  COMPROMISE  AND  COMPOSITION. 

28.  Mode  of  proof,  and  effect 815 

V.  TENDER. 

29.  Necessity,  and  mode  of  proof. . . .  816 


VI.  RELEASE. 

30.  Mode  of  proof,  and  effect 817 

31.  Oral  evidence. .  ..i 818 

32.  Impeaching 818 

VII.  SURETYSHIP     AND    MODIFICATION    OF 
CONTRACT. 

33.  Defendant  a  surety 818 

34.  Modification 819 

VIII.  DISCHARGE. 

35.  In  bankruptcy 819 

36.  —  impeaching 820 

37.  Insolvency 820 

38.  New  promise. 821 


CHAPTER  LXI. 

LIMITATIONS. 


1.  Pleading 822 

2.  Burden  of  proof. 822 

3.  New  promise 823 

4.  Conditional  new  promise 824 


5.  Acknowledgment 824 

6.  Part  payment 824 

7.  Indorsement  of  payment 826 


CHAPTEE  LXTI. 

FORMER  ADJUDICATION. 


1.  General  Rules 826 

2.  Former  recovery  as  merging  the 

cause  of  action 827 

3.  Splitting  cause  of  action 827 

4.  Former  adjudication    as  an    es- 

toppel   827 

5.  What  questions  are  concluded  . . .  828 

6.  Construction  of  instrument 828 

7.  Courts  and  tribunals 829 

8.  Exclusive  jurisdiction 829 

9.  Parties..  829 


10.  Joint  defendants. 830 

1 1.  Form  of  th»  adjudication 830 

12.  Record  to  be  produced 831 

13.  What  questions  were  determined 

by  it 832 

14.  Oral  evidence  to  explain  record. .  833 

15.  Set-off. 884 

16.  Rebuttal:  Want  of  Jurisdiction. .  834 

17.  —fraud «....  834 

18.  —  appeal ;  reversal 834 

19.  —  new  title . .  834 


CHAPTEE  LXIIL 

COUNTERCLAIMS. 
1.  Pleading 835  I  2.  Mode  of  proof;  admission 836 


GENERAL  INDEX..  837 


TRIAL   EVIDENCE. 


PAET   I. 

EVIDENCE  AFFECTING  PARTICULAR  CLASSES  OF  PARTIES. 


CHAPTER  I. 

ACTIONS   BY   AND   AGAINST   ASSIGNEES. 

1.  Rules  applicable  to  assignees.  20.  Assignment  for  purposes  of  suit. 

2.  Allegation  of  assignment  material.          21.  — or  as  collateral  security. 
8.  Requisite  proof  of  assignment.  22.  Assignees  in  insolvency. 

4.  Implied  assignment.  23.  Assignees  in  bankruptcy. 

B.  Statute  of  frauds.  24.  Purchaser  from  official  assignee. 

6.  Presumptive  evidence.  25.  Assignees  for  benefit  of  creditors. 

7.  Consideration.  26.  Testimony  of  assignor. 

8.  Gift.  27.  Assignor's  declarations  not  competent 

9.  Object,  when  material.  in  favor  of  assignee. 

10.  Best  and  secondary  evidence.  28.  Their  competency  against  assignee. 

11.  Proof  of  execution.  29.  — if  made  before  assignor  waa  owner. 

12.  Deliver}7  and  acceptance.  80.  —  if  made  after  he  ceased  to  be  owner. 

13.  Assignment  with  schedules.  81.  —  if  made  during  his  ownership. 

14.  Assignment  by  corporation.  32.  Preliminary  question. 

15.  Authority  of  officer  or  agent.  83.  Distinction  between  declarations  and 

16.  Purol  evidence  to  vary.  transactions. 

17.  Equities  in  favor  of  assignor  or  third    34.  Declarations  admitted  in  case  of  con- 

person,  spiracy. 

18.  Bona  fide  purchaser.  35.  Receipt  of  the  assignor. 

19.  Notice  to  debtor.  36.  Notice  to  produce. 

1.  Rules  applicable  to  Assignees.] — To  avoid  repetition  when 
discussing  rules  applicable  to  particular  classes  of   actions,  we 
will  first  consider  certain  rules  which  are  common  to  many  classes 
of   actions,  because  applicable  generally  to  peculiar  classes  of 
parties. 

The  rules  thus  applicable  to  assignees  are  not  limited  to 
transferees  by  formal  deed,  but,  with  qualifications  to  be  indi- 
cated as  we  proceed,  apply  generally  to  all  transferees  of  non- 
negotiable  things  in  action. 

2.  Allegation  of  Assignment  Material.'} — If  plaintiff  seeks  to 
recover  upon  a  cause  of  action  which  accrued  to  another  person, 
and  became  the  plaintiff's  by  assignment,  the  allegation  of  assign- 
ment is  essential.    Under  an  allegation  of  a  cause  of  action  accru- 
ing to  the  plaintiff,  proof  of  a  cause  accruing  to  his  assignor  is 
not  admissible ; *  and  under  an  allegation  of  an  assignment,  proof 

1  O'Neil  T.  N.  T.  Central  R.  R.  Co.  60  N.  Y.  142.  But  the  court  have  power  to 
allow  an  amendment  at  the  trial.  Ib.  143.  Where  the  cause  of  action  originnlly 
accrued  to  plaintiff,  and  lias  been  assigned  and  reassigned,  proof  of  the  assignment 
and  reassignment  is  not  necessary  to  sustain  the  action.  Washoe  v.  Hibernia  Fire 
Ins.  Co.  7  Hun,  75.  And  where  the  plaintiff  was  entitled,  both  as  the  real  party  in 
interest,  and  as  assignee  of  his  trustee,  he  may  recover  on  proof  of  either  title.  Pit- 
ney Y.  Glen's  Falls  Ins.  Co.  65  N.  Y.  6,  18. 


2  ACTIONS  BY  AND  AGAINST  ASSIGNEES. 

of  an  assignment  after  suit  is  brought  is  insufficient.1  If  a  written 
assignment  produced  bear  date  before  the  commencement  of  the  ac- 
tion, the  date  is  presumptive  evidence  that  it  was  then  made ; 
but  if  it  bear  no  date,  some  evidence  should  be  given  indicat- 
ing that  it  was  in  fact  made  before  the  action  was  commenced.3 

3.  Requisite  Proof  of  Assignment."] — If  no  writing  passed, 
the  assignment  of  a  debt  may  be  proved  by  parol,8  even  though 
there  was  an  agreement  unperformed  to  give  a  written  transfer.4 
It  is  sufficient  proof  of  a  parol  assignment  that  some  evidence  of 
the  debt — such  as  a  bond  or  mortgage,5  or  a  transcript  of  judg- 
ment,6 or  a  note  held  for  the  debt,  or  part  of  it,7 — was  delivered  to 
the  assignee  by  the  assignor,  with  intent  to  transfer  the  title  to  the 
demand ;  and  the  declarations  of  the  assignor  accompanying  the 
delivery  may  be  proved  by  a  witness  as  part  of  the  res  gestce.     It 

§  is  not  essential  to  call  the  assignor.  JBut,  on  the  other  hand, 
neither  the  mere  production  of  a  non-negotiable  security,8  nor 
proof  of  mere  words  of  intention  on  the  part  of  the  alleged  as- 
signor, are  enough.  Nor  can  plaintiff  prove  his  title  by  mere 
evidence  of  oral  declarations  of  the  assignor,  that  he  had  at  a 
previous  time  assigned  the  demand  to  plaintiff,9  unless  such  dec- 
larations were  made  in  defendant's  presence,  in  which  case  -they 
may  be  proved  as  laying  a  foundation  for  his  admission  of  an  as- 
signment, or  for  a  presumption  thereof  from  his  silence. 

4.  Implied  Assignment.] — In  some  cases  where  there  was  no 
express  assignment,  the  court  will,  upon  equitable  grounds,  pre- 
sume an  assignment  from  the  fact  that  the  plaintiff,  being  en- 
titled to  relief,  and  with  intent  to  enforce  the  claim  for  his  own 
reimbursement,  paid  the  one  who  was  legally  entitled.10    And  in 
case  of  negotiable  paper  "  taken  up,"  even  by  a  stranger,  at  ma- 
turity, on  dishonor,  an  assignment  has  been  implied  from  its 
delivery  to  him  uncancelled.     In  this  class  of  cases,  the  question 
whether  paying  the  creditor  was  a  satisfaction  of  the  demand  or 
a  purchase,  is  ordinarily  a  question  of  intention  of  the  parties, 
which  may  be  proved  by  parol.11    But  the  plaintiff  should  be  pre- 

1  Garrigue  v.  Loesclier,  3  Bosw.  5*78.     But  variance  in  the  mode  of  assignment  is 
disregarded,  if  not  prejudicial.     Bowman  v.  Keleman,  65  N.  Y.  598. 
8  Barrick  v.  Austin,  21  Barb.  241.     Compare  paragraph  35  below. 
3  Hooker  v.  Eagle  Bank,  30  N.  Y.  83. 

*  Doremus  v.  Williams,  4  Hun,  458. 

5  Runyan  v.  Mersereau,  11  Johns.  634;    and  see  17  Id.  284;  Eamend  Y.  Huelig, 
12  Am.  Law  Reg.  N.  S.  61. 

*  Mack  v.  Mack,  3  Hun,  323. 

7  Armstrong  Y.  Cushney,  43  Barb.  340;   Billings  v.  Jane,  11  Id.  620.     For  the 
more  strict  common-law  rule  see  Palmer  v.  Merrill,  6  Gush.  282. 

8  Barrick  v.  Austin,  21  Barb.  241. 

9  Worrall  v.  Parmelee,  1  N.  Y.  521. 

10  See  O'Neil  v.  N.  Y.  Central  R.  R.  Co.  above;    Smith  v.  Miller,  25  N.  Y.  619 ; 
Vail  v.  Tuthill,  10  Hun,  81. 

11  Compare  Champney  Y.  Coope,  32  K  Y.  643;  Sheldon  v.  Edwards,  35  Id.  278, 
and  cases  cited  ;  Edgerly  v.  Emerson,  23  N.  H.  556,  565,  570 ;  and  chapter  on  Actions 
for  Money  Paid. 


ACTIONS  BY  AND  AGAINST  ASSIGNEES.  3 

pared  not  only  to  show  that  it  was  his  intent  to  acquire  the  right 
of  action,  but  to  give  some  evidence  that  it  was  the  intent  of  the 
creditor  to  transfer  it  to  him.  The  creditor's  delivery  to  him  of 
the  evidence  of  debt,  uncancelled,  is  ordinarily  sufficient  to  sus- 
tain a  finding  on  this  point,  as  against  the  debtor.1  But  where 
the  payer  was  bound  under  seal  or  by  judgment  to  pay  the  debt, 
his  action  must  ordinarily  be  for  money  paid.2 

5.  Statute  of  Frauds. ~\ — When  no  consideration  for  the  assign- 
ment is  shown,  and  no  delivery,  the  assignment,  if  for  the  price 
of  $50,  or  more,3  or  when  no  price  was  fixed,  if  of  a  chose  in  ac- 
tion clearly  proven  to  be  worth  that  sum,4  must  have  been  evi- 
denced by  a  note  or  memorandum  in  writing.     But  a  written 
assignment,  unless  involving  an   interest  in  land,5  need  not  be 
under  seal,  even  though  the  thing  assigned  be  a  specialty.6 

6.  Presumptive  Evidence.'] — Direct  proof  of  an  assignment  is 
not  always  essential.     The  title  to  an  incidental  or  collateral  se- 
curity which  is  exclusively  applicable  to  the  principal  debt  or  ob- 
ligation, is  presumed  to  have  been  assigned  with  the  principal 
debt  or  obligation,  unless  the  contrary  is  shown  ;  hence  an  assign- 
ment of  the  collateral  may  be  presumptively  shown  by  proof  of 
an  assignment  of  the  principal  obligation.7    But  an  assignment  of 
the  principal  obligation  cannot  be  inferred  from  the  mere  fact  of 
an  assignment  of  a  collateral  security  or  other  incident.8    Since 
the  change  in  the  law  allowing  assignees  to  sue  in  their  own 
names,  it  has  been  much  questioned  whether  an  assignment  of 
property  or  things  in  action  will  carry,  by  implication,  incidental 
causes  of  action  for  fraud,  mistake,  and  the  like,  which  cannot 
subsist  independent  of  the  principal  right.     At  first  these  were 
thought  not  to  pass  unless  expressly  included;  but  the  better 
opinion  is  that  the  question  is  usually  one  of  intent,  and  that  an 
assignment  of  a  thing  in  action  may  carry  the  right  to  those  reme- 

1  Compare  Freedman's  Savings,  <fec.  Co.  v.  Dodge,  93  U.  S.  382  ;  Union  Trust  Co. 
v.  Monticello,  63  N.  Y.  314  ;  Lancey  v.  Clark,  64  Id.  2l)9  ;  iShumway  v.  Cooley,  9 
Hun,  131. 

*  Champney  v.  Coope,  Sheldon  v.  Edwards,  above. 

1  2  R.  S.  136  ;  People  v.  Beebe,  1  Barb.  379. 

4  Buskirk  v.  Cleveland,  41  Barb.  610;  Crookshank  v.  Burrcll,  18  Johns.  58.  Con- 
tra, 12  Sim.  189;  1  Ohio  St.  350. 

4  Ot.hor  than  a  lease  not  exceeding  one  year.  2  R.  S.  134,  §§  6,  7 ;  Bissell  v. 
Morgan,  56  Barb.  369. 

6  E.  ff.  a  judgment.  Ford  v.  Stuart,  19  Johns.  342  ;  or  a  bond  or  covenant.  Mo- 
range  v.  Edwards,  1  E.  D.  Smith,  414 ;  Dawson  v.  Coles,  16  Johns.  51. 

1  Thus  an  assignment  of  the  mortgage  may  be  presumed  from  proof  of  an  assign- 
ment of  the  bond  or  note.  Jackson  v.  Blodgett,  6  Cow.  202;  Green  v.  Hart,  1 
Johns.  580 ;  and  assignment  of  a  guaranty  of  a  bond  and  mortgage  may  be  presumed 
from  the  assignment  of  the  bond  and  mortgage  by  the  guarantee.  Caily  v.  Sheldon, 
38  Barb.  103  ;  and  see  40  N.  Y.  181.  So  the  assignment  of  a  judgment  carries  the 
right  to  any  further  remedy  subsisting  for  the  debt  on  which  the  judgment  was  re- 
covercd.  Pattison  v.  Hull,  9  Cow.  747 ;  Bowdoin  v.  Coleman,  3  Abb.  Pr.  431 ;  s.  c. 
6  Duer,  182. 

8  Thus  intent  to  transfer  the  bond  cannot  be  inferred  from  an  assignment  of  the 
mortgage  alone.  Merritt  v.  Bartholick,  36  N.  Y.  44,  affi'g  47  Barb.  253 ;  8.  P.  26 
N.  Y.  404. 


4  ACTIONS   BY  AND   AGAINST  ASSIGNEES. 

dies  inseparable  from  it  which  might  have  been  expressly  as- 
signed.1 

7.  Consideration.'] — For  the  purpose  of  enabling  the  assignee 
to  maintain  an  action  against  the  debtor,  proof  of  a  consideration 
for  the  assignment  is  not  essential  (unless  the  statute  of  frauds 
requires  it),  for  an  absolute  assignment  transfers  the  legal  title.* 
The  consideration,  however,  may  be  material  in  respect  to  de- 
fenses.    If  a  consideration  is  not  expressed,  where  the  assignment 
is  in  writing,  it  will  be  presumed.8    Indeed,  it  is  no  longer  neces- 
sary in  all  cases  to  prove  such  an  assignment  ans  passes  the  legal 
title,  in  order  to  enable  the  assignee  to  sue  in  his  own  name. 
"Whether  his  title  be  legal  or  equitable,  if  he  have  the  whole  in- 
terest he  may  maintain  the  action.4    But  the  defendant  may  prove 
that  the  assignee  paid  and  took  assignment  as  trustee  or  agent  for 
one  who  has  no  right  to  enforce  the  claim — for  instance,  a  prin- 
cipal debtor  or  a  joint  debtor.5     The  defendant  cannot  be  allowed 
to  prove  that  the  consideration  was  inadequate,6  or  even  that  there 
was  none.7    Even  proof  that  a  stranger  paid  the  consideration  for 
the  assignment  is  not  enough  to  defeat  the  action.     If  the  plaint- 
iff is  a  mere  trustee  for  a  third  person,  the  burden  is  on  the  de- 
fendant to  show  it,8  and  then  it  must  be  shown  that  he  is  not  the 
trustee  of  an  express  trust  within  the  statute.9    It  is  enough,  in 
the  first  instance,  for  plaintiff  to  prove  either  that  he  is  the  real 
party  in  interest,  or  that  he  is  the  trustee  of  an  express  trust,  suf- 
ficiently to  show  that  his  recovery  will  bar  the  right  of  the  as- 
signor.10 

8.  Gift.~\ — If  plaintiff  claims  under  an  oral  gift,  there  must 

1  Bentley  v.  Smith,  1  Abb.  Ct.  App.  Dec.  126;  Bolen  v.  Crosby,  49  N.  Y.  183. 
Thus  it  has  been  held  that  where  a  right  arising  out  of  contract  involves  a  remedy 
for  fraud  or  deceit,  the  right  to  prove  the  tort  follows  the  original  cause  of  action, 
and  vests  in  the  assignee.  Westcott  v.  Keeler,  4  Bosw.  564.  Contra,  Bliss'  Code  of 
N.  Y.  434 ;  and  see  53  N.  Y.  298.  So  the  right  of  a  ceslui  que  trust  to  enforce  a  power 
has  been  held,  on  a  view  of  the  design  and  intent,  to  pass  by  his  deed  of  the  title. 
Clark  v.  Crego,  47  Barb.  599.  So  the  assignment  of  a  usurious  security  carries  the 
riii  lit  <  f  action  on  the  original  valid  consideration.  Gerwig  v.  Bitterly,  56  N.  Y.  214  ; 
affi'g  in  effect  64  Barb.  620.  So  of  the  right  to  have  a  contract  reformed  for  mistake. 
Bentley  v.  Smith,  above.  As  to  new  promise,  compare  Stearns  v.  Tappin,  5  Duer, 
294  ;  Hoyt  v.  Dusenbury,  53  N.  Y.  521. 

-  Cummings  v.  Morris,  25  N.  Y.  625.  Whether  the  action  is  on  contract;  St.  John 
v.  Mutual  Life  Ins.  Co.  13  N.  Y.  31;  or  for  a  wrong.  Merrick  v.  Brainard,  38  Barb. 
674 ;  34  N.  Y.  208. 

3  Eno  v.  Crook,  10  N.  Y.  60  ;  Richardson  v.  Mead,  27  "Barb.  178.     Where  the  ex- 
tinguishment of  a  precedent  debt  was  relied  on,  it  was  held  that  there  must  be  evi- 
dence of  actual  extinguishment.     34  Barb.  629.     But  doubted;  compare  56  Id.  362. 

4  Thus  the  holder  of  a  non-negotiable  note  indorsed  in  blank  may  recover  on  it. 
Hastings  v.  McKinley,  1  E.D.  Smith,  273  ;  affi'd  in  Seld.  Notes,  No.  4,  19. 

6  Ten  Eyck  v.  Craig,  62  N.  Y.  416,  affi'g  2  Hun,  452 ;  Arnott  v.  Webb,  1  Dill. 
C  Ct  362 

6  Mills  v.  Fox,  4  E.  D.  Smith,  220. 

7  Daby  v.  Ericsson,  45  N.  Y.  786 ;  Stone  v.  Frost,  61  Id.  614,  affi'g  6  Lans.  440. 

8  Eno  v.  Crooke,  10  N.  Y.  60. 

9  Code  of  Pro.  §  111. 

10  See  Gardner  v.  Barden,  34  N.  Y.  433,  and  cases  cited;  Allen  Y.  Brown,  51  Barb. 
86;  44N.Y.  228. 


ACTIONS  BY  AND   AGAINST   ASSIGNEES.  5 

be  proof  not  only  of  words  of  gift,  but  of  delivery  of  the  evi- 
dences of  the  thing  in  action  sufficient  to  transfer  the  dominion 
to  the  plaintiff;1  and  this  rule  is  equally  applicable  whether  the 
gift  was  in  view  of  death  or  not.2  According  to  some  authori- 
ties, there  must  be  a  written  transfer,3  but  while  there  may  be 
reason  for  this  rule  when  the  gift  is  set  up  against  the  alleged 
donor,  or  his  successors  or  representatives,  the  better  opinion  is 
that  a  gift  by  delivery  is  sufficient  to  enable  the  donee  to  enforce 
the  chose  in  action  against  the  debtor.4  But  bare  possession  of  the 
evidences  of  debt  is  not  ordinarily  enough  to  raise  a  presumption 
of  a  gift.5  Where  the  party  claims  title  to  the  cause  of  action  by 
such  a  disposition,  he  is  not  required  to  show  affirmatively,  and 
with  minuteness,  the  circumstances  under  which  the  alleged  gift 
was  made ;  nor  that  the  donor  was  of  sound  disposing  mind  and 
memory  when  he  made  the  gift,  and  that  delivery  of  the  subject 
was  his  free  and  voluntary  act.  These  are  matters  of  defense, 
equally  in  cases  of  gifts  inter  vivos  and  gifts  causa  mortis.6 

9.  Object,  when  Material.'] — If  the  transfer  was  valid  as  be- 
tween the  parties  to  it,  the  defendant  cannot  question  it  by  proof 
that  it  was  made  for  the  purpose  of  enabling  the  suit  to  be 
brought,  because  the  assignor  could  not  bring  it,7  or  for  the  pur- 
pose of  enabling  the  assignor  to  be  a  witness.8    And  even  proof 
of  fraud  on  the  part  of  the  parties  to  the  assignment,  such  as 
would  enable  creditors  to  avoid  it,  will  not  avail  the  debtor.9   But 
evidence  that  the  assignment  was  positively  illegal,  as,  for  exam- 
ple, that  it  was  made  to  an  attorney  for  the  purpose  of  his  bring- 
ing an  action,  is  competent.10    In  other  words,  it  is  enough  for 
plaintiff  to  show  an  assignment  which  bound  the  assignor,  but 
defendant  may  show  that  it  was  illegal  on  the  part  of  the  plaintiff 
to  receive  it. 

10.  Best  and  Secondary  Evidence.'] — If  it  appears  that  the  as- 
signment of  the  cause  of  action  was  made  by  a  written  instru- 
ment, the  writing  is  the  best  evidence,  and  must  be  produced  or 
accounted  for.11     And  in  general,  wherever  the  nature  or  extent 


I  Johnson  v.  Spies,  5  Hun,  471.     An  indorsement  of  intent  to  give,  without  proof 
of  delivery,  is  not  enough.     Zimmerman  v.  Streeper,  75  Pa.  147. 

5  Bedell  v.  Carll,  33  N.  Y.  581. 

*  Johnson  v.  Spies,  above;  Gray  v.  Barton,  55  N.  Y.  73;  2  Kent's  Com.  439. 

4  Mack  v.  Mack,  3  Hun,  323.       See  paie  155  of  this  vol. 

8  Grey  v.  Gr.-y,  47  N.  Y.  552,  rev'g  2  Lans.  173;  Bedell  v.  Carll,  33  N.  Y.  681. 

8  Bedell  v.  Carll,  nbove. 

7  As  where  the  assignor  nnd  debtor  were  both  foreign  corporations.     McBride  v. 
Farmers'  Bank,  26  N  Y.  450;  affi'g  25  Barb.  G57 ;  or  the  assignor  was  a  foreign 
executor  or  administrator.     Peterson  v.  Chemical  Bank,  32  N.  Y.  21. 

8  Gardner  v.  Harden,  above;  and  see  Westervelt  v.  Allcock,  3  E.  D.  Smith,  243. 

9  Osborne  v.  Moss,  7  Johns.  161 ;   Waterlmry  v.  Westervelt,  9  N.  Y.  598. 

10  2  R.  S.  288,  §  71 ;  Mann  v.  Fairchild,  3  Abb.  C  t.  A|>p.  Dec.  152;  M<--s  v.  Mr- 
Bivitt,  2  Abb.  New  ('as.  47.     Formerly  the  mere  purchase  was  evidence  of  intent. 
3  Wend.  120.     It  is  now  only  a  necessary  circumstance  with  others  to  show  intent. 
See  Bristol  v.  Dann,  12  Wend.  142;  Williams  v.  Mathews,  3  Cow.  252. 

II  Gilmore  v.  Bangs,  55  Ga.  403. 


6  ACTIONS  BY  AND   AGAINST  ASSIGNEES. 

of  plaintiffs  interest  in  property  is  material  under  the  issne,  the 
written  instrument  of  transfer  under  which  he  claims  may  be 
called  for  as  the  best  evidence.1  But  a  distinction  is  made  in  this 
rule,  between  a  writing  which  is  the  vital  instrument  of  transfer, 
such  as  a  bill  of  sale,  and  a  writing  which  is  merely  an  incidental 
or  collateral  memorandum  of  a  transfer  made  verbally,  such  as  a 
bill  of  parcels  stating  price,  and  receipted.  Where  the  former 
is  shown  to  exist  it  must  be  produced ;  but  the  latter  is  not 
primary  evidence,  and  need  not  be  produced.2 

11.  Proof  of  Executionl\ — The  execution  of  a  written  assign- 
ment may  be  proved  by  having  it  acknowledged  by  the  assignor, 
or  proved  by  a  subscribing  witness,  before  an  officer  authorized 
to  take  acknowledgment  and  proof  of  deeds ; 8  and  this  may  be 
done  even  after  the  action  has  been  commenced,  and  at  any  time 
before  the  actual  offer  of  the  document  in  evidence.4    Unless  this 
is  done,  the  assignment,  whether  under  seal  or  not,5  if  attested  by 
subscribing  witness,  must  be  proved  by  the  witness  or  his  hand- 
writing.6 

12.  Delivery  and  Acceptance^ — Delivery  of  a  written  assign- 
ment is  presumed  when  the  instrument  is  proved  to  have  been 
executed  by  the  assignor,  and  is  actually  produced  by  the  plaintiff , 
at  the  trial ; 7  and  affirmative  proof  of  the  acceptance  of  an  as- 
signment which  appears  to  be  beneficial  to  the  assignee,  is  not  re- 
quired from  the  party  propounding  it,  but  the  party  impeaching 
it  must  disprove  acceptance.8 

13.  Assignment  with  Schedules.'] — If  plaintiff  claims  under  a 
general  assignment  with  a  schedule  of  the  articles  transferred, 
general  words  in  the  assignment,  with  nothing  in  it  to  indicate 
that  the  schedule  is  to  control,  will  pass  the  right  of  action, 
though  it  be  omitted  from  the  schedule ;  and  parol  evidence  that 
it  was  not  intended  to  pass  it,  has  been  held  incompetent  as  vary- 
ing the  assignment.9    But  evidence  that  it  was  in  fact  inserted  in 
the  schedule  by  a  designation  partially  false  or  inapplicable  is 
competent.10 

14.  Assignment  by  Corporation.'] — If  plaintiff  claims  as  as- 
signee of  a  corporation,  evidence  of  the  existence  of  the  corpora- 
tion is  admissible  without  any  allegation  of  that  fact  other  than 
such  as  is  implied  in  the  mention  of  the  corporate  name  in  the 


1  Epping  v.  Mockler,  55  Ga.  376. 

*  Dunn  v.  Hewitt,  2  Den.  6S8. 

8  N.  Y.  L.  1833,  p.  3%,  c.  271,  §  9.     Add  county  clerk's  certificate  where  required. 

4  Holbrook  v.  N.  J.  Zinc  Co.  57  N.  Y.  616. 

8  1  Greenl.  Ev.  §  569 ;  King  v.  Smith,  21  Barb.  158. 

8  Page  605  of  this  vol.,  where  the  practice  is  stated.     1  Greenl.  Ev.  §  569;  Jones 
V.  Underwood,  28  Barb.  481. 

1  Story  v.  Bishop,  4  E.  I).  Smith,  423 ;  North  v.  Turner,  9  Serg.  <fe  R.  244. 

*  Van  Buskirk  v.  Warren,  4  Abb.  Ct.  A  pp.  Dec.  457. 

9  Cram  v.  Union  Bank,  1  Abb.  Ct.  App.  Dec.  461.    Contra,  Platt  v.  Thorn,  8  Bosw. 
674.     Compare  Nims  v.  Armstrong,  31  Md.  87  ;  2  Whart.  Ev.  §  944. 

10  Commercial  Bank  v.  Clapier,  3  Rawle,  335,  339. 


ACTIONS  BY  AND  AGAINST  ASSIGNEES.  7 

complaint.1  The  plaintiff  is  not  held  to  make,  as  against  the 
debtor,  so  clear  proof  of  a  valid  assignment  by  the  corporation  as 
he  might  be  required  to  in  a  contest  with  the  creditors  or  stock- 
holders of  the  corporation.  As  against  the  debtor,  an  assignment 
of  the  cause  of  action  is  presumed  valid,  although,  having  been 
made  by  a  moneyed  corporation,  a  vote  of  the  board  was  neces- 
sary to  its  legality,  and  there  is  no  evidence  thereof.2  But  where 
there  is  evidence  that  the  transfer  was  made  without  a  vote  of  the 
board,  the  burden  is  on  the  assignee  to  show  that  he  took  it  for 
value,  and  without  notice.3  This  he  may  always  show  in  support 
of  his  title,  whether  he  took  directly  from  the  corporation  or 
through  a  third  person.4  The  fact  that  plaintiff  himself,9  or  even 
one  ol  several  plaintiffs,6  was  a  director  at  the  time  of  such  an  il- 
legal transfer,  is  sufficient  evidence  of  notice  to  defeat  the  action. 

15.  Authority  of  Officer  or  A  gent.'] — To  show  the  authority  of 
the  officers  of  the  corporation  to  make  the  transfer,  their  official 
character  may  be  proved  either  by  the  corporate  minutes,  or  by 
witnesses  testifying  to  the  fact  of  their  habitually  acting  as  such, 
and  without  producing  the  books,7  and  the  jury  may  infer  the 
authority  of  the  officer  to  do  the  particular  act  from  evidence  of 
the  exercise  by  him  of  the  same  general  power,  with  the  knowl- 
edge and  acquiescence  of  the  directors.8 

16.  Parol  Evidence  to  Vary  a  Writing.'} — The  rule  excluding 
parol  evidence,  when  offered  to  vary  a  contract,  has  often  been  ap- 
plied against  assignees  of  a  contract,  and  against  a  debtor  seeking 
to  explain  or  vary  an  assignment  of  his  debt.     But  the  later  au- 
thorities recognize  the  qualification  that  in  actions  between  a 
stranger  to  the  instrument  and  a  party  to  it,  as  well  as  between 
strangers,  either  may  give  parol  evidence  to  vary  it.9    Hence  the 
rule,  as  now  understood,  forbids  neither  the   assignee  nor  the 
debtor  to  give  parol  evidence  to  vary  either  the  contract  sued  on 
or  the  assignment,  unless  they  are  both  parties  to  the  same  in- 
strument, or  have  come  under  the  obligations  of  parties,  or  the 
agreement  is  one  which  the  law  requires  to  be  in  writing.10     Thus 
a  person  not  a  party  to  a  policy  of  insurance,  but  holding  it  by 

1  Kennedy  v.  Cotton,  28  Barb.  9. 

2  Belden  v.  Meeker,  47  N.  Y.  307,  affi'g  2   Lans.  470;    9  Moak's  Eng.  255,  a 
Compare  to  the  contrary,  Houehton  v.  McAuliffe,  2  Abb.  Ct.  App.  Dec.  409. 

3  lloughton  v.  McAuliffe,  above.      Contra,  Caryl  v.  McElrath,  3  Sandf.  176. 

4  Curtis  v.  Leavitt,  15  N.  Y.  9.     Proof  of  payment  of  value  raises  a  presumption, 
according  to  Warner  v.  Chuppel,  32  Barb.  309,  that  plaintiff  took  without  notice. 

»  Gillet  v.  Phillips,  13  N.  Y.  (3  Kern.)  114. 

6  Smith  v.  Hall,  5  Bosw   319. 

1  Partridge  v.  Badger,  23  Barb.  146. 

8  Merchants'  Bank  v.  State  Bank,  10  Wall.  604;  compare  Jackson  v.  Campbell,  5 
Wend.  572 ;  Hoyt  v.  Thompson,  5  N.  Y.  320. 

9  McMaster  v.  President,  <fcc.  of  Ins.  Co.  of  N.  A.  55  N.  Y.  222 ;  Coleman  v.  First 
Nat.  Bk.  53  N.  Y.  388;  Badger  v.  Jones,  12  Pick.  321 ;  Railroad  Co.  v.  Trimble,  10 
Wall.  307. 

10  Furbush  v.  Goodwin,  25  N.  H.  425,  446 ;    Dempsey  v.  Kipp,  61  N.  Y.  462,  and 
cases  cited.     But  see  paragraph  20  below. 


8  ACTIONS  BY  AND  AGAINST  ASSIGNEES. 

assignment,  or  as  one  to  whom,  in  case  of  loss,  it  is  payable,  may 
adduce  evidence  to  explain  it,  in  bis  action  against  the  company.1 
IT.  Equities  against  the  Assignee.'] — Tbe  assignee  of  a  non- 
negotiable  cbose  in  action,  as  distinguished  from  the  Ion  a  fide 
transferee  of  negotiable  paper,  takes  it  subject  to  all  equities, 
whether  known  or  unknown  to  the  assignee,2  existing  against  the 
assignor  at  the  time  of  the  assignment,  in  favor  either  of  the 
debtor,8  or  of  any  person  who  had  succeeded  to  his  right  at  the 
time  of  the  assignment,4  and  even  latent  equities  in  favor  of  third 
persons.5 

18.  £ona  Fide  Purchaser.'] — But  the  doctrine  of  equitable 
estoppel  supports  the  title  of  a  bona  fide  purchaser  for  value,  of 
a  non-negotiable  cause  of  action,  from  one  upon  whom  the  owner 
has  conferred  the  apparent  absolute  ownership,  when  the  pur- 
chase is  made  upon  the  faith  of  such  appearance.6    Yet  evidence 
showing  circumstances  sufficient  to  have  put  the  purchaser  upon 
inquiry,  will  charge  him  with  the  same  notice  that  is  chargeable 
to  nis  assignor  in  respect  to  the  same  matters.7 

19.  Notice  to  Debtor."] — If  the  cause  of  action  was  complete 
against  the  debtor  before  the  assignment  was  made,  notice  to  the 
debtor,  of  the  assignment,  need  not  be  proved,8  except  for  the  pur- 
pose of  shutting  out  evidence  of  subsequent  dealings  by  the  debtor 
with  the  assignor  in  reduction  of  the  liability.     If  the  assignee 
proves  such  notice,  subsequent  dealings  between  the  original  par- 
ties are  not  relevant  against  him,9  but  the  burden  of  proving  such 
notice  is  upon  the  assignee  who  seeks  to  avail  himself  of  it.10 

20.  Assignment  for  Purpose  of  Suit.~\ — If  plaintiff  proves  a 
written  assignment  absolute  on  its  face,  defendant  cannot  suc- 
cessfully impeach  plaintiffs  title,  by  adducing  parol  evidence  to 
show  that  it  was  nlade  upon  condition  that  part  of  the  claim  as- 
signed should,  when  collected,  be  paid  to  the  assignor.11 


1  McMaster  v.  President,  <fec.  of  Ins.  Co.  of  N.  A.  65  N.  Y.  222,  234. 

5  Evertson  v.  Evertson,  5  Paige,  644. 

8  Murray  v.  Gouverneur,  2  Johns.  Cas.  438 ;  Clute  v.  Robinson,  2  Johns.  595,  and 
cases  cited  in  1  Abb.  N.  Y.  Dig.  2d  ed.  305. 

4  Hartley  v.  Tatham,  2  Abb.  Ct.  App.  Dec.  333. 

8  Green  v.  Warnick,  64  N.  Y.  2'J4,  and  cases  cited;  overruling  Murray  v.  Lylburn, 
2  Johns.  Ch.  441,  and  other  cases  to  the  contrary. 

6  Moore  v.  Metrop.  Bank,  55  N.  Y.  41 ;  Green  v.  Warniok,  64  Id.  224. 

I  Commercial  Bank  v.  Colt,  15   Barb.  506;  and  see  Evans  v.  Ellis,  5  Den.  640, 
affi'g  Ellis  v.  Messervie,  11  Paige,  467.     The  purchaser  of  u  bond  and  mortgage  who 
fails  to  require  the  production  of  the  bond,  is  chargeable  with  notice  of  any  defect  in 
the  assignor's  title  thereto.     Kellogg  v.  Smith.  26  N.  Y.  18.     As  to  appearances  of 
alterations,  see  Birdsall  v.  Russell,  29  N.  Y.  220. 

8  Muir  v.  Schenck,  3  Hill,  228. 
•  Myers  v.  Davis.  22  N.  Y.  489,  rev'g  26  Barb.  367. 

10  Hermans  v.  Ellsworth,  64  N.  Y.  161 ;  3  Hun,  473,  and  cases  cited.  As  to  the  ne- 
cessity of  notice  ns  against  third  persons,  see  Thayer  v.  Daniels,  113  Mass.  129. 

II  Durgin  v.  Ireland,  14  N.  Y.  (4  Kern.)  322.     But  he   may,  for  the  purpose  of 
showing  the  bias  of  the  assignor,  if  the  assignor  has  testified  for  plaintiff.     Moore  v. 
Viele,  4  \Vetid.  420. 


ACTIONS  BY  AND  AGAINST  ASSIGNEES.  9 

21.  —  or  as  Collateral  Security. ~\ — Where  the  plaintiff  holds 
the  cause  of  action  as  collateral  security  for  a  debt  due  him  from  a 
third  person,  the  burden  is  upon  the  defendant  of  proving  any 
defense  arising  out  of  the  state  of  dealings  between  the  plaintiff 
and  his  principal  debtor — as  for  instance  that  the  principal  debt 
has  been  paid,1  or  is  not  equitably  enforceable  as  against  the  de- 
fendant.2 

22.  Assignee*  in  Insolvency '.] — In  an  action  by  an  assignee  in 
insolvency,  as  such,  on  a  cause  of  action  which  he  acquired  by  the 
assignment,  the  plaintiff  is  bound  to  prove  that  he  is  such  as- 
signee, even  though  the  defendant  only  pleads  the  general  issue.3 
For  this  purpose  an  insolvent  assignment,  in  the  form  of  a  deed 
by  the  insolvent  to  his  assignee,  expressing  a  pecuniary  consider- 
ation, is  admissible  in  evidence  without  proving  the  insolvency 
proceedings,  although  it  recites  their  existence  and  purports  to  be 
made  pursuant  to  a  judge's  order.4 

23.  —  in  Bankruptcy, .] — The  title  of  an  assignee  in  bankruptcy 
is  conclusively  proved,  alike  in  a  State  court  as  in  a  court  of  the 
United  States,5  by  a  copy  of  the  assignment,  duly  certified  by  the 
clerk  of  the  court  under  its  seal.6    But  unless  he  produces  such 
copy,  or  the  original,  or  accounts  for  its  absence,  parol  evidence 
of  his  title  is  not  admissible.7     It  is  not  necessary  for  him  to  show 
the  steps  in  the  proceedings,  nor  the  jurisdiction  of  the  court 
over  the  proceedings  or  the  person  of  the  insolvent,8  nor  a  record 
of  the  assignment  as  a  deed  of  lands,9  nor  can  the  existence  or 
sufficiency  of  the  debt  of  the  petitioning  creditor  be  collaterally 
drawn  in  question.10     The  entire  proceedings  in  a  bankruptcy  case 
are  not  regarded  as  constituting  an  integral  record ;  but  copies  of 
such  papers  as  in  any  way  relate  to  the  matter  in  question,  certi- 
fied to  be  such,  are  admissible  without  other  parts  of  the  pro- 
ceedings.11 

2-i.  Purchaser  from  Official  Assignee.'] — One  claiming  as  a 
purchaser  from  an  assignee  in  bankruptcy  should  be  prepared  to 
prove  the  assignee's  title,  by  producing  the  assignment  or  a  duly 
certified  copy,  and  to  prove  his  own  title  by  producing  the  writ- 


1  Sheldon  v.  Wood,  2  Bosw.  267. 

*  Hogarty  v.  Lynch,  6  Bosw.  138.     Parol  evidence  as  to  the  agreed  mode  of  pay- 
ment of  the  debt,  admissible.     Hildebrandt  v.  Crawford,  6  Lans.  502,  507.     For  the 
peculiar  application  of  the  rules  as  to  collaterals,  in  case  of  negotiable  paper,  see 
chapter  on  Actions  on  Bills,  Notes  and  Checks. 

*  Best  v.  Strong,  2  Wend.  319. 

4  Rockwell  v.  Brown,  54  N.  Y.  210,  rev'g  33  Super.  Ct.  (1  J.  A  S.)  380. 
8  Cone  v.  Purcell,  56  N.  Y.  649.     The  State  courts  will  take  judicial  notice  of  the 
U.  S.  Bankrupt  Act.     Wheelock  v.  Lee,  15  Abb.  Pr.  N.  S.  24. 

6  Bump  on  Bankr.  139;  Blumenstiel  on  Bankr.  228:  U.  S.  R.  S.  §  5048. 

7  Burk  v.  Winters,  28  Ark.  6,  and  cases  cited ;  8.  c.  15  Bankr.  R.  140. 

8  Bump  on  Bnnkr.  139. 

9  Phillips  v.  Hembold,  26  N.  J.  Eq.  202. 

10  Sloan  v.  Lewis,  22  Wall.  150. 

11  Michener  v.  Payson,  13  Bankr.  R.  50 ;  s.  P.  Ransom  v.  Wheeler,  12  Abb.  Pr.  139. 


10  ACTIONS  BY  AND  AGAINST  ASSIGNEES. 

ten  assignment  from  the  assignee,  if  any,  or  to  account  for  their 
absence.1  A  copy  of  the  bankrupt's  schedule  is  held  not  by  itself 
sufficient  evidence  to  prove  the  bankrupt's  admission  of  the  debt 
mentioned  therein,  because  but  part  of  the  record.2 

25.  Assignees  for  Benefit  of  Creditors^ — The  assignee's  title 
is  to  be  proved  by  producing  the  assignment,  or  a  certified  copy 
of  it.     This  evidence  is  admissible  under  an  allegation  of  an  as- 
signment to  plaintiff,  without  stating  that  it  was  in  trust  for  cred- 
itors, unless  defendant  shows  that  he  has  been  misled  to  his  prej- 
udice.8   The  assent  of  the  cestuis  que  trustent  to  a  valid  assign- 
ment for  their  benefit  is  presumed  as  matter  of  law,  unless  there 
is  evidence  to  the  contrary.4    And  where,  as  in  some  States,  assent 
is  not  presumed,  it  is  not  necessary  to  prove  that  all  assented,  un- 
less the  assent  of  all  is  expressly  required  by  the  contract  or  by 
local  law.     The  assent  of  a  creditor  may  be  proved  by  the  act  of 
his  attorney,  and  that  of  a  firm  by  the  act  of  a  partner.5    If  the 
plaintiff's  right  depends  on  the  power  of  the  assignee  to  convert 
or  apply  the  assets  to  the  purposes  of  the  trust,  he  should  also 
prove  the  filing  of  the  bond  and  other  steps  which  the  statute 
makes  a  condition  to  the  exercise  of  that  power.6 

26.  Testimony  of  Assignor, .] — The  testimony  of  the  assignor 
of  the  cause  of  action,  when  offered  by  the  assignee,  is  justly 
regarded  by  the  law  as  liable  to  scrutiny,  and  is  to  be  received 
with  something  of  the  same  caution  as  that  of  a  party  testifying 
in  his  own  behalf ; 7  and  where  the  adverse  party  is  an  executor, 
administrator,  or  other  representative  of  one  deceased  or  other- 
wise incompetent  to  testify,  the  assignor,  equally  with  the  as- 
signee, is  excluded  from  testifying  to  personal  transactions  or 
communications  had  by  him  with  the  person  deceased  or  other- 
wise incapacitated.8     But  an  assignor's  testimony,  unlike  that  of 
a  party  testifying  in  his  own  behalf,  may  be  sufficient,  without  cor- 
roboration,  to  justify  the  court  in  taking  the  case  from  the  jury. 

The  bias  of  the  assignor  may  be  shown  by  proof  of  a  remain- 
ing or  contingent  interest,9  but  not  by  inquiring  merely  into  the 
amount  of  the  consideration.  The  comparatively  trifling  character 
of  the  consideration  is  not  evidence  of  bias  or  interest,  and  cross- 
examination  for  this  purpose  is  in  the  discretion  of  the  court.10 

1  Files  v.  Harrison,  29  Ark.  307,  316. 

*  Wilson  v.  Harper,  6  So.  Car.  294.     But  see  paragraph  23. 

3  Hoogland  v.  Trask,  6  Robt.  540 ;  Lauve's  Case,  6  La.  Ann.  630. 

4  Burrill  on  Assignments,  3d  ed.  381 ;  Van  Buskirk  v.  Warren,  4  Abb.  Ct.  App. 
Dec.  458. 

6  Burrill  on  Assignments,  392. 

6  Thrnsher  v.  Bentley,  1  Abb.  New  Cas.  39. 

7  Watkins  v.  Cousall,  1  E.  D.  Smith,  65 ;    Kenney  v.  Public  Admr.  2  Bradf.  319 ; 
Smith  v.  Leland,  2  Duer,  497. 

8  See  chapter  on  Actions  by  and  against  Executors  and  Administrators. 

9  Moore  v.  Viele,  4  Wend.  420. 

10  Arend  v.  Liverpool,  N.  Y.  <fe  Phila.  Steamship  Co.  6  Lans.  457  :    Chapin  v.  Hoi- 
lister,  7  Id.  456. 


ACTIONS  BY  AND  AGAINST  ASSIGNEES.  11 

27.  Assignor's  Declarations  not  competent  in  Favor  of  As- 
signee.']— Admissions  and  declarations  of  the  assignor  are  not 
competent  evidence  in  favor  of  the  assignee,1  unless  part  of  the 
res  gestoe  of  an  act  properly  in  evidence,2  or  communicated  to  the 
debtor  or  otherwise  brought  home  to  him ;  and  they  are  riot  made 
competent  by  being  declarations  against  interest,  offered  after  the 
assignor  is  dead.3     Some  qualifications  of  this  rule  will  be  noticed 
in  considering  the  competency  of  evidence  of  good  faith  in  a 
transfer  impeached  as  fraudulent. 

28.  Their  Competency  against  Assignee.~\ — To  determine  their 
competency  when  offered  against  the  assignee,  we  must  consider, 
1.  the  time  when  they  were  made ;  2.  the  character  of  the  as- 
signment ;  and,  3.  the  nature  of  the  act  or  declaration  offered  in 
evidence. 

29.  —  if  made  before  Assignor   was  Owner.'] — Admissions 
and  declarations  made  by  the  assignor  before  he  became  owner 
are  wholly  incompetent  against  the  assignee,4  except,  perhaps, 
that  when  it  is  relevant  to  prove  that  as  owner  of  the  claim  he 
had  notice  of  any  fact,  declarations  made  previous  to  ownership, 
showing  a  then  present  knowledge  of  the  fact  may  be,  within  rea- 
sonable limits,  evidence  to  go  to  the  jury  tending  to  show  notice 
at  the  time  when  he  dealt  with  or  possessed  the  thing  assigned. 

30.  —  if  made  after  he  Ceased  to  l>e  Owner  J] — The  assignor's 
admissions  and  declarations,  and  even  his  formal  written  acknowl- 
edgment, made  after  he  ceased  to  be  owner,5  are  equally  incom- 
petent against  the  assignee,  unless  the   evidence  connects  the 
assignee  with  them ;  and  it  makes  no  difference  that  that  the 
assignment  is  only  as  collateral,6  or  good  only  in  equity.7     But  if 
the  assignee  is  merely  a  nominal  party,  suing  for  the  assignor's 


1  Rose.  N.  P.  67. 

3  According  to  Howard  v.  Upton,  9  Hun,  434,  the  act  must  not  only  be  properly 
in  evidence,  but  in  issue,  or  relevant  to  the  issue. 

8  Outram  v.  M,orewood,  5  T.  R.  123. 

4  Bond  v.  Fitzpatrick,  4  Gray  (Mass.)  89.      So  declarations  made  by  one  who 
afterwards  became  an  assignee  in  bankruptcy,  or  a  trustee,  are  not  admissible  against 
him  in  that  capacity.     Leggc  v.  Edmonds,  25  L.  J.  Ch.  125;    Metiers  v.  Brown,  32 
L.  J.  Ex.  140. 

6  Eby  v.  Eby,  6  Pa.  St.  435  ;  Kinna  v.  Smith,  3  N.  J.  Eq.  (2  Green),  14 ;  Woodruff 
v.  Cook,  25  Barb.  505 ;  Pringle  v.  Pringle,  69  Pa.  St.  289 ;  Morton  v.  Morton,  13 
Serg.  <fe  R.  108 ;  s.  p.  4  Pa.  St.  439.  Greenleaf  says,  after  he  ceased  to  be  s-jle  owner. 
1  Greenl.  Ev.  §  190.  Taylor  omits  this  qualification.  1  TayL  Ev.  §  713.  And  in 
Bond  v.  Fitzpatrick,  4  Gray  (Mass.)  80,  it  was  held  that  if  the  recovery  is  severable, 
the  declarations  of  an  assignor  of  a  part  interest  may  be  competent  against  the  as- 
signee to  the  extent  of  that  interest. 

«  Wheeler  v.  Wheeler,  9  Cow.  34  ;  Dazey  v.  Mills,  10  111.  (6  Gilm.)  70.  In  Miller 
v.  Bingham,  29  Vt.  82,  the  fact  that  the  declarations  were  made  while  the  chose  in 
action  was  held  by  a  temporary  assignee  as  collateral  security,  was  held  not  to  render 
them  incompetent  ngainst  one  to  whom  the  declarant  subsequently  assigned  it,  after 
having  redeemed  it. 

'  Mandeville  v.  Welch,  5  Wheat.  277. 


12  ACTIONS  BY  AND  AGAINST  ASSIGNEES. 

benefit,  they  are  competent ;  *  while,  on  the  other  hand,  if  the 
assignee  is  the  real  party  in  interest,  the  fact  that  the  action  is  in 
the  assignor's  name  does  not  render  competent  his  declarations, 
made  subsequent  to  the  transfer.3 

31.  —  if  made  during  his  Ownership.'] — Three  rules  have  con- 
tended for  control  in  respect  to  admission  of  evidence  of  the  as- 
signor's acts  and  declarations  against  his  own  interest,  made  during 
his  ownership.  One  rule3  declares  them  universally  competent 
against  all  assignees,  except  transferees  of  negotiable  paper  after 
dishonor.  This  rule,  which  is  a  departure  from  the  principle  for- 
bidding hearsay,  and  securing  the  sanction  of  an  oath  and  the 
right  of  cross-examination  as  to  all  testimony,4  is  founded  on  the 
doctrine  that,  as  every  assignee  stands  in  the  shoes  of  his  assignor, 
he  must  take  title  subject  to  whatever  disparagement  the  latter 
may  have  put  upon  it.  It  has  been  followed  in  many  States,  par- 
ticularly where  commercial  transfers  of  things  in  action  are  less 
common  than  in  New  York. 

A  stricter  rule,  stated  by  Greenleaf  and  followed  by  Taylor, 
requires  evidence  of  an  identity  of  interest  between  assignor  and 
assignee  to  admit  these  declarations,  such  identity  being  recog- 
nized in  three  cases :  1.  "Where  the  assignee  is  the  mere  agent 
and  representative  of  the  assignor.  2.  Where  he  took  title  with 
actual  notice  of  the  true  state  of  that  of  the  assignor,  as  qualified 
by  the  admissions  in  question.  3.  Where  he  purchased  the  de- 
mand already  stale,  or  otherwise  infected  with  circumstances  of 
suspicion.5 

The  New  York  rule,  now  recognized  also  in  the  Supreme 
Court  of  the  United  States,6  is  still  more  strict  in  the  protection 
of  the  right  of  assignees.7  This  rule  is,  that  the  oral  admissions 
or  declarations,  as  distinguished  from  the  transactions,  of  the 
former  holder  of  any  chose  in  action  or  personal  property,8  even 
if  made  before  his  transfer,  are  not  competent  evidence  against 


1  Eaton  v.  Corson,  59  Me.  610.     Admissions,  even  by  the  nominal  plaintiff,  made 
after  he  parted  with  his  interest  in  the  cause  of  action,  are  not  competent  against  the 
beneficial  assignee  suing  in  the  name  of  the  former.    Wing  v.  Bishqp,  3  Allen  (Mass.) 
456. 

2  Frear  v.  Evertson,  20  Johns.  142.     So  an  assignor's  acquiring  possession  again 
does  not  let  in  declarations  made  during  the  renewed  possession,  and  relating  to  the 
former  period.     Cornett  v.  Fain,  33  Geo.  219;    Tilson  v.  Terwilliger,  56  N.  Y.  273. 
The  rule  of  exclusion  applies  not  only  to  matters  in  avoidance  and  dischnrge,  but 
also  to  those  which  go  to  the  maintenance  of  the  action  and  the  inception  of  the 
contract.     Wing  v.  Bishop,  3  Allen  (Mass.)  456. 

3  Which  is  best  represented  in  Cowen  <fe  Hill's  Notes  to  Phillips  on  Evidence  (1 
Phil.  Ev.),  where  cases  are  collected. 

4  Bond  v.  Fitzpatrick,  4  Gray  (Mass.)  89,  92 ;  Bullis  v.  Montgomery,  50  N.  Y.  358, 
rev'g  3  Lans.  258. 

6  1  Greenl.  Ev.  §  190;  1  Tayl.  §  713. 

6  Paige  v.  Cagwin,  7  Hill.  361 ;  Freeman's  Sav.  <fec.  Co.  v.  Dodge,  93  U.  S.  379. 
1  Jones  v.  East  Society,  <fec.  21  Barb.  174. 

8  Smith  v.  Webb,  1  Barb.  234;  Beach  v.  Wise,  1  Hill,  612;  Freedmen's  Sav.  <tc, 
Co.  v.  Dodge,  93  U.  S.  379. 


ACTIONS  BY  AND  AGAINST  ASSIGNEES.  13 

the  transferee,1  unless  there  is  a  present  identity  of  interest  be- 
tween them.8  And  even  the  fact  of  the  assignor  having  died 
"before  the  trial  does  not  allow  the  declarations  to  be  admitted 
under  the  familiar  rule  that  declarations  against  interest,  by  a 
person  since  deceased,  are  competent.3 

32.  Preliminary  Question.'] — An  offer  to  give  the  acts  and 
declarations  of  an  assignor  in  evidence  against  his  assignee,  should 
be  so  framed  as  to  show  that  they  were  made  before  the  transfer,4 
and  are  admissible  as  having  been  made  against  interest  at  the  time 
when  they  were  made ;  and  the  judge  must  determine  the  ques- 
tion of  their  admissibility,  and  not  leave  it  to  the  jury  to  deter- 
mine when  thoy  were  made.5     If,  on  the  evidence,  it  be  left  in 
doubt  whether  the  declarations  were  made  before  or  after  the 
transfer,  they  must  be  excluded.6 

33.  Distinction  between  Declarations  and  Transactions^ — 
The  rule  of  exclusion  is  aimed  at  loose  oral  declarations  and  con- 
duct having  not  the  quality  of  contract  or  estoppel.     It  excludes, 
therefore,  not  only  evidence  of  words,  but  evidence  of  acts  offered 
as  merely  in  the  nature  of  admissions,  such  as  the  assignor's  dis- 
continuing an  action  brought  for  the  same  cause,  and  suffering 
judgment  for  costs  ;7  but  it  does  not  exclude  evidence  of  effective 
transactions,  such  as  a  message  sent  by  the  assignor  while  owner, 
to  the  debtor,  on  which  the  latter  acted  or  gave  assent,  so  as  to 
constitute  an  agreement;8  or  such  as  the  act  of  a  bank,  the- as- 
signor, in  crediting  a  payment  in  its  pass-book  delivered  to  its 
debtor.     The  rule  cannot  apply  against  written  evidence  put  into 
the  debtor's  hands  by  the  assignor  before  the  assignment.9     To 


1  The  language  of  the  court  in  Paige  v.  Cagwin,  applies  the  rule  only  to  purchas- 
ers in  good  faith  and  for  value,  but  subsequent  cases  have  extended  it  to  one  holding 
a  sealed  assignment,  without  other  proof  of  consideration;  Prouty  v.  Eaton,  41 
Barb.  416 ;  s.  p.  Pringle  v.  Pringle,  59  Pa.  St.  289 ;  to  a  legatee,  Smith  v.  Webb,  1  Uarb. 
230  (but  see  Smith  v.  Sergent,  2  Hun,  107) ;  and  to  a  voluntary  assignee  in  trust 
for  creditors  ;  Bullis  v.  Montgomery,  60  N.  Y.  358,  and  cases  cited;  40  Id.  226.  The 
rule  (.f  exclusion  is  available  only  for  the  protection  of  a  subsequent  purchaser  or 
assignee.  A  stranger  who  does  not  claim  under  the  declarant,  but  only  proves  the 
declarant's  claim  by  way  of  defeating  plaintiffs  title,  cannot  object  to  the  declara- 
tions, if  admissible  as  declarations  against  interest  by  a  person  since  deceased. 
Schenck  v.  Warner,  37  Barb.  258. 

8  Cases  cited  in  Paige  v.  Cagwin,  7  Hill,  361.  The  true  criterion  of  identity  of 
interest  is  whether  the  action  is  for  the  immediate  benefit  of  the  assignor.  Jones  v. 
East  Society,  21  Barb.  175. 

3  Nelson,  Ch.  J.,  Stark  v.  Boswell,  6  Hill,  405;  s.  p.  1  Barb.  234  ;  and  aee  37  Id. 
821. 

4  Jermain  v.  Denniston,  6  N.  Y.  276;  Ball  v.  Loomis,  29  Id.  416.     This  is  the  N. 
Y.  rule.     To  the  contrary,  Magee  v.  Raiguel,  64  Pa.  St.  110,  rev'g  7  Phil.  231. 

6  Vrooman  y.  King,  36  N.  Y.  477,  484  ;  s.  p.  Jones  v.  Hurlbut,  39  Marb.  403.  If 
the  plaintiff  maintains  that  the  assignor  had  an  interest,  defendant  is  not  precluded 
from  offering  the  assignor's  admission  by  the  fact  that  he  denies  the  assignor  had 
any  interest.  Eaton  v.  Corson.  69  Me.  612. 

6  Vrooman  v.  King,  36  N.  Y.  477. 

7  Tousley  v.  Barry,  16  N.  Y.  497. 

8  Smith  v.  Schanck,  18  Barb.  344. 

9  Jermain  v.  Denniston,  6  N.  Y.  276. 


14:  ACTIONS  BY  AND  AGAINST  ASSIGNEES. 

illustrate  the  distinction  in  another  form,  an  unrecorded  mort- 
gage cannot  be  given  priority  over  a  recorded  mortgage  by  mere 
evidence  that  tne  assignor  of  the  latter  declared  or  admitted, 
while  he  held  it,  that  he  took  it  with  notice  of  the  former ;  but 
this  may  be  done  by  offering  a  written  stipulation  given  by  him 
to  the  owner  of  the  former,  defining  their  relative  precedence. 
His  admissions  are  not  competent  against  his  assignee ;  his  agree- 
ment is.1 

34.  Declarations  Admitted  in  case  of  Conspiracy. ~\ — Where  a 
combination  is  shown  to  have  existed  between  the  assignor  and 
the  assignee,  by  preliminary  evidence  independent  of  the  declara- 
tions of  either,  then  the  declarations  of  each,  made  while  acting 
in  furtherance  of  the  wrongful  scheme,  and  during  the  existence 
of  the  combination,  are  competent  against  the  other,  upon  the 
familiar  rule  applicable  to  the  declarations  of  co-conspirators,2  and 
it  need  not  be  shown  that  such  other  had  any  knowledge  of  the 
declarations.3 

35.  Receipt,  &c.  of  the  Assignor.] — A  formal  release  or  re- 
ceipt, given  by  the  assignor  to  the  debtor,  before  the  transfer,  is 
competent4  against  the  assignee;  but  the  date  of  the  paper  is  not 
even  presumptive  evidence  against  the  assignee  that  it  was  then 
given.5    There  must  be  extrinsic  evidence  that  it  was  given  be- 
fore the  assignor  parted  or  assumed  to  part  with  the  chose  in 
action,  in  order  to  render  it  competent.     If,  on  the  evidence 
adduced,  it  be  left  in  doubt  whether  the  discharge  was  given  be- 
fore or  after  the  transfer,  it  must  be  excluded.6 

36.  Notice  to  Produce.] — To  lay  the  foundation  for  secondary 
evidence  of  the  contents  of  a  paper  in  the  hands  of  the  assignor, 
notice  to  the  plaintiff  to  produce  it  is  not  sufficient.    The  assignor 
should  be  subpoanaed  to  produce  it.7 


1  Fort  v.  Burch,  6  Barb.  60,  77 ;  Beers  v.  Hawley,  2  Conn.  467. 
s  See  Cuyler  v.  McCartney,  40  N.  Y.  226,  rev'g  33  Barb.  165;  and  cases  cited; 
Lee  v.  Huntoon,  Hoffm.  458  ;  Adams  v.  Davidson,  10  N.  Y.  309. 

3  Nudd  v.  Burrows,  91  U.  8.  438. 

4  Jermain  v.  Denniston,  6  N.  Y.  276. 

5  Foster  v.  Beals,  21  Id.  250;  Smiths  v.  Shoemaker,  17  Wall.  637.     The  contrary 
has  been  ruled  ;    Rose.  N.  P.  38 ;  69  Pa.  St.  289 ;  and  correctly  so  in  the  case  of 
entries  made  in  the  usual  course  of  business.     Jermain  v.  Denniston,  above ;  and  see 
56  N.  Y.  507. 

«  Foster  v.  Beals,  21  N.  Y.  250 ;  s.  P.  36  Id.  477. 
1  Chaffee  v.  Cox,  1  Hilt  78. 


CHAPTER  II. 

ACTIONS  BY  AND  AGAINST  ASSOCIATIONS. 
1.  Voluntary  associations.  2.  Joint  stock  companies. 

1.  Voluntary  Associations. ~] — A  voluntary  association  is  a 
body  who  form  their  organization,  conduct  affairs,  and  settle  ac- 
counts as  if  they  were  a  corporation  ;  but,  not  having  the  legal 
immunities  of  a  corporation,  are  liable  individually  if  at  all  to  out- 
siders. Hence  in  actions  between  the  members,  the  law,  giving 
effect  to  their  agreement,  applies  rules  of  evidence  which  are  ap- 
plied to  corporations,1  while  in  actions  between  them  and 
strangers,  the  principles  applicable  in  cases  of  agency  or  partner- 
ship prevail.2  A  stranger  may  prove  the  existence  of  the  asso- 
ciation and  the  membership  of  the  defendants  by  parol,  without 
accounting  for  the  written  articles,3  unless  the  contents  of  the 
articles  are  necessary  to  establish  the  scope  of  the  agency  by 
which  the  contract  was  made.  Even  where  the  action  is  on  a 
contract  of  the  body,  plaintiff  is  not  bound  to  prove  that  he  has 
joined  all  the  associates,  unless  non-joinder  is  pleaded  with  names, 
&c. ; 4  but  if  any  of  the  defendants  denies  the  alleged  joint  con- 
tract, plaintiff  must  prove  the  joint  liability  of  all  the  defendants 
named  071  the  record.  It  is  not  enough  to  show  a  several  con- 
tract by  that  part  of  the  defendants  who  appear.  Where,  how- 
ever, the  liability  of  the  association  is  proved,  it  is  enough  for 
plaintiff  to  show  that  the  litigating  defendant  was  a  member  of 
the  association,  and  so  jointly  liable  with  those  whose  membership 
is  proved  or  admitted.5  Membership  may  be  proved  by  any  evi- 
dence which  sufficiently  identifies  the  member  with  the  associa- 
tion to  show  that  he  allowed  it  to  be  his  agent  for  the  purpose  of 
the  transaction  ; 6  for  instance  the  fact  that  he  subscribed  uncon- 
ditionally, though  he  never  took  any  stock ; 7  or  that  he  paid  up  a 
subscription  made  in  his  name.8  And  actual  membership  having 


1  Tyrrell  v.  Washburn,  6  Allen,  472. 

*  Abb.  Dig.  Corp.  47,  note;  Park  v.  Spaulding,  10  Hun,  128  ;  Bullard  v.  Kinney, 
10  Cal.  60;  Ebbinghousen  v.  Worth,  4  Abb.  New  Cas.  300,  note. 

8  Cutler  v.  Thomas,  25  Vt.  73 ;  though  otherwise  in  an  action  between  the  mem- 
bers. 

4  Fowler  v.  Kennedy,  2  Abb.  Pr.  847. 

*  Downing  v.  Mann,  3  E.  D.  Smith,  86.     Compare  Mott  v.  Petrie,  15  Wend.  317. 
e  Taft  v.  Warde,  111  Mass.  522. 

T  Spear  v.  Crawford,  14  Wend.  20;  Bodwell  v.  Eastman,  106  Mass.  526, 
8  Frost  v.  Wulker,  60  Me.  470. 


16  ACTIONS  BY  AND  AGAINST  ASSOCIATIONS. 

been  shown,  it  is  not  necessary  that  the  plaintiff  should  have 
known  of  or  relied  on  it  in  giving  credit.1  Defendant  is  exoner- 
ated by  proof  of  a  termination  of  membership  before  the  debt 
was  contracted,  unless  the  plaintiff  dealt  with  the  association 
knowing  of  and  relying  on  defendant's  membership,  in  which 
case  defendant  must  prove  notice  of  his  withdrawal,  as  in  case  of 
a  partnership.8  All  the  members  are  presumably  cognizant  of 
the  rules  contained  in  their  records  openly  kept  within  access  of 
the  members.3 

2.  Joint  Stock  Companies,  c&<?.] — Joint  stock  companies  and 
some  other  associations  are  organized  under  laws  giving  to  mem- 
bers of  voluntary  associations  without  full  incorporation  some  of 
the  immunities  of  corporations,  principally  in  three  ways :  1.  Al- 
lowing suits  to  be  in  the  name  of  an  oflicer,  instead  of  joining 
the  members ;  2.  allowing  withdrawal,  by  transfer  of  shares,  with- 
out dissolution  of  the  organization ;  and,  3.  requiring  judgment 
to  be  had  and  enforced  against  the  associate  property,  before 
action  can  be  brought  against  a  member.  Under  these  statutes 
the  association  is  deemed  the  party,  although  an  officer  be  named 
on  the  record  ;  and  the  question  whether  rules  of  evidence  drawn 
from  the  law  of  partnership  or  from  the  law  of  corporations, 
should  control,  depends  upon  the  same  tests  as  in  case  of  a 
mere  voluntary  association.  The  better  opinion  is  that  a  foreign 
joint  stock  company  formed  under  such  laws,  is  to  be  treated,  as 
far  as  may  be,  as  a  corporation,  not  a  mere  partnership.4 


1  Bodwell  v.  Eastman,  106  Mass.  526. 
J  Park  v.  Spaulding,  10  Hun,  128. 

3  Rose.  N.  P.  38  ;  1  Phill.  Ev.  447. 

4  Westcott  v.  Fargo,  61  N.  Y.  542 ;  Liverpool  Ins.  Co.  v.  Massachusetts,  10  Wall. 
566.    Contra,  Gott  v.  Dinsmore,  111  Mass.  51 ;  Taft  v.  Ward,  106  Id.  618. 


CHAPTEE  HI. 


ACTIONS  BY  AND  AGAINST  CORPORATIONS. 


I.  PROVING   CORPORATE  EXISTENCE. 

1.  Pleading. 

2.  Strict  proof  not  usually  required. 
8.  Exceptional  cases. 

4.  Incorporation     incidentally    in 

issue. 
6.  Legislative  sanction  necessary. 

6.  Domestic  corporation — general  law 

or  charter. 

7.  Evidence  of  authenticity  of  statute. 

8.  National  bank. 

9.  Corporation  of  sister  State. 

10.  Corporation  of  foreign  State. 

11.  Mode  of  proving  de  facto  existence. 

12.  Acceptance  of  charter. 

1 3.  Organization  under  general  law. 

14.  Official  permission  to  do  corporate 

business. 

1 5.  Disregard  of  statute  conditions. 

16.  Effect  of  proof  of  user. 

17.  Mode  of  proving  user. 

18.  Admission  of  incorporation. 

1 9.  Estoppel  against  the  company. 

20.  Estoppel  against  those  dealing  with 

the  company. 

21.  Estoppel  against  members  and  sub- 

scribers. 

22.  The  estoppel  liberally  applied. 

23.  General  principle  as  to  proof  of  in- 

corporation. 

24.  Materiality  of  date. 

25.  Misnomer. 

26.  Fraud,  forfeiture  or  non-user. 

II.  CORPORATE  POWERS  IN  GENERAL. 

27.  New  powers. 

28.  Distinction  between  original  pow- 

ers of  corporation  and  delegated 
powers  of  officers. 

29.  Evidence  of  delegation  of  power. 
80.  Presumptions  as  to  corporate  acts. 

III.  CONTRACTS  BY  A  CORPORATION. 
31.  Implied  promises. 

82.  Simple  contracts  in  writing. 

83.  Sealed  instruments. 

84.  Corporate  acceptance  of  deeds,  <fec. 

85.  Contract  ambiguous  aa  to  party. 

IV.  TORTS  BY   A   CORPORATION. 

36.  False  representations  by  meeting. 
2 


IV.  TORTS  BY  A  CORPORATION — continued. 
87.  Frauds  by  directors. 

38.  Wrongs  by  officers  or  agents. 

V.  MEETINGS  AND  BY-LAWS. 

39.  Evidence  of  regularity  of  meetings. 

40.  Acts  by  parol. 

41.  Pleading  by-laws,  <fcc.» 

42.  Proof  of  by-laws. 

VI.  AUTHORITY  OF  OFFICERS,  AGENTS  AND 

MEMBERS. 

43.  Evidence  of  appointment  of  officers 

and  agents. 

44.  Evidence  of  express  authority. 

45.  Implied  scope  of  authority. 

46.  Authority  implied  in  title  of  office. 

47.  Testimony  of  officer  or  agent. 

48.  Ratification. 

VII.  ADMISSIONS,  DECLARATIONS  AND  NO- 

TICE, 

49.  Admissions  and  declarations  of 

members. 

60.  Admissions  and  declarations  of  offi- 
cers, <fec.,  authorized  to  speak. 

51.  Admissions  and  declarations  made 

as  part  of  res  gcstce. 

52.  Admissions  and  declarations  before 

incorporation. 

53.  Notice. 

VIII.  BOOKS   AND   PAPERS. 

54.  Corporation  books  and  papers  as 

evidence. 

65.  Statutory  record. 

66.  Minutes  of  proceedings. 

67.  Against  whom  evidence  of  corpo- 

rate acts  is  competent. 
58.  The  minutes  not   exclusively  the 

best  evidence. 
69.  Authentication  of  corporate  books 

when  produced. 

60.  Rough  minutes. 

61.  Competency  of  copies. 

62.  Reports. 

63.  Foundation  of  secondary  evidence. 

64.  Notice  to  produce. 

65.  Parol  evidence  to  vary  corporate 

minutes. 

66.  Accounts  and  business  entries. 

[in 


18  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

I.  PROVING  CORPORATE  EXISTENCE. 

1.  Pleading  as  to  corporate  existence^ — It  is  now  the  gen- 
eral rule  that  a  corporation,   whether  domestic1   or    foreign,2 
suing  in  a  name   appropriate  to  a  corporate  body,  may  prove 
its  incorporation  when  necessary,  even  though  not  alleged  in 
its  pleading.8    At  common  law,  proof  of  corporate  existence  was 
essential  under  the  general  issue,4  as  jvell  as  under  a  special 
plea  of  "nul  tiel  corporation."     This  is  still  the  rule  in  New 
York  and  some  other  States  as  to  all  other  than  "  domestic  "  cor- 
porations,5 or  corporations  created  by  or  under  the  laws  of  the 
State  in  who^e  courts  the  action  is  brought.6    In  respect  to  do- 
mestic corporations  (and  in  some  States,  in  respect  to  all  corpora- 
tions)7 the  rule  has  been  modified  by  dispensing  with  proof  of  in- 
corporation unless  incorporation  is  specially  denied  in  pleading. 
Where  the  plaintiffs  expressly  allege  incorporation,  an  answer  de- 
nying each  and  every  allegation  of  the  complaint  is  a  sufficient 
denial.8    The  New  York  statute  °  provides  that  in  suits  by  or 
against   domestic  corporations,  the  incorporation  need  not  be 
proved,  unless  denied  by  a  verified  allegation  in  the  answer.     If 
so  denied,  it  must  be  proved  as  at  common  law,10  and  under  this 
act  it  is  the  better  practice  to  insert  an  express  allegation  that 
there  is  no  such  incorporation.11 

2.  Strict  proof  not  Usually  Required."} — When  evidence  of 
incorporation  becomes  necessary,  it  is  enough,  in  ordinary  actions, 
to  prove  the  existence  of  a  corporation  de  facto,  without  proving 
formal  compliance  with  the  requirements  of  the  law  or  charter  in 
respect  to  the  perfecting  of  the  organization.     In  other  words,  it 

1  Phoenix  Bank  of  New  York  v.  Donnell,  40  N.  Y.  410,  affi'g  41  Barb.  571,  and 
cases  cited. 

2  Camden  &  Amboy  R.  R.  Co.  v.  Reiner,  4  Barb.  127,  and  cases  cited;  Paine  v. 
Lake  Erie,  <fec.  Co.  31  Ind.  310,  354,  s.  c.  1  Withr.  Corp.  Cas.  386,  408. 

3  Marine,  <fec.  Ins.  Bank  v.  Jauncey,  1  Barb.  486.     But  where  the  provisions  of  a 
private  or  foreign  charter  are'ma'terial  to  the  cause  of  action,  they  should  be  pleaded. 
Hahnemannian  Life  Ins.  Co.  v.  Beebe,  48  III.  87,  s.  c.  1  Withr.  Corp.  Cas.  420. 

4  Jackson  v.  Plurnbe,  8  Johns.  295,  and  cases  cited ;  "Williams  v.  Bank  of  Michigan, 
1  Wend.  539,  affi'g  5  Id.  478. 

6  Watervillo  Manuftcturing  Co.  v.  Bryan,  14  Barb.  182. 

'  A  corporation  is  none  the  less  a  domestic  corporation,  because  having  a  charter 
from  another  State.    Muller  v.  Dows,  94  U.  S.  444  ;  also  Ang.  <fe  A.  §  G43,  7,  a. 

7  Star  Brick  Co.  v.  Ridsdale,  36  N.  J.  L.  229. 

8  Gott  v.  Adams  Express  Co.  100  Mass.  320,  s.  c.  1  Withr.  Corp.  Cas.  623 ;  Chance 
V.  Indianapolis  11.  R.  Co.  32  Ind.  422,  s  c.  1  Withr.  Corp.  Cas.  385. 

9  L.  1875,  p.  588,  c.  508,  am'd'g  L.  1864,  p.  1006,  c.  422;  2  R.  S.  458,  §  3.     The 
original  statute  applied   only  to  Buits  at  law.     See  13  N;.Y.  309.     Whether  such 
special  denial  is  a  mere  denial  or  "new  matter,"  see  12  Barb.  573;  40  N.  Y.  410. 
The  rules  as  to  pleading  and  the  necessity  or  burden  of  proof  of  incorporation  are 
much  modified  by  local  statutes  relaxing  the  common-law  requirements. 

10  The  short  method  of  pleading  incorporation,  given  by  2  R.  S.  of  N.  Y.  459, 
§  13,  in  actions  by  or  against  corporations  created  under  a  law  of  the  State,  by  recit- 
ing the  title  of  the  act,  and  date  of  its  passage,  without  reciting  the  act  or  proceed- 
ings of  incorporation,  or  setting  forth  the  substance  thereof,  dues  not  relieve  corpo- 
rations from  proving  their  existence.     Onondaga  County  Bank  v.  Carr,  17  Wend. 
443.     In  several  States  statutes  exist  still  further  reducing  the  common-law  require- 
ment of  proof. 

11  Moak's  Van  Santv.  PI.  519. 


PROVING  CORPORATE  EXISTENCE.  19 

is  enough  to  prove  existence  under  color  of  law,  without  proving 
a  regular  origin  of  existence  in  conformity  to  law.     If  the  com- 
pany had,  in  form,  a  charter  authorizing  it  to  act  as  a  body  cor- 
porate, or  acted  under  color  of  a  general  law  sanctioning  its  pur- 
poses, and  if  it  was,  in  fact,  in  the  exercise  of  corporate  powers  at 
the  time  of  the  dealings  in  question,  and  at  the  time  of  litigation, 
then  it  was  and  is,  as  to  all  except  the  State,  a  corporation  de  ; 
facto.1    This  rule  applies  alike  to  actions  brought  by  corporations  i 
as  plaintiffs,  whether  upon  contracts8  or  against  wrong-doers, 
and  to  actions  brought  against  corporations,  whether  upon  con- 
tracts made  or  wrongs  committed  by  them.4 

The  three  elements  of  strict  proof  of  incorporation  are :  1. 
Legislative  sanction  ;  2.  Existence  under  color  of  such  sanction  ; 
3.  ^Regularity  of  origin  conforming  to  the  sanction.  The  first  may 
now  be  generally  supplied,  in  the  case  of  domestic  corporations, 
by  the  doctrine  of  judicial  notice,  and,  in  the  case  of  foreign  cor- 
porations, by  the  statute  book ;  the  second  and  third  are  often 
dispensed  with  by  an  estoppel ;  the  third  is  not  required  save 
where  the  nature  of  the  action  demands  strict  proof. 

3.  Exceptional  Cases. ~\ — The  cases  in  which  it  is  necessary  to 
give  strict  proof  of  incorporation,  that  is,  to  prove  not  only  the 
being,  but  the  right  to  be,  are :  1.  Actions  by  the  State  to  ascer- 
tain, or  to  put  an  end  to  corporate  existence ; 5  2.  Proceedings  by 
a  private  corporation,  *in  the  'exercise  of  a  franchise  in  derogation 
of  common  right ;  for  instance,  to  divest  title  to  private  property  ; 6 

3.  Proceedings  of  a  penal  character  by  a  private  corporation;7 

4.  Actions  on  contracts  like  subscriptions  for  stock,  if  the  very 
consideration  is  the  legal  organization  of  a  corporation  having  a 
right  to  existence.8    In  such  cases  the  inquiry  may  extend  to  the 
due  compliance  with  all  the  requirements  of  the  law  ;  but  often, 
even  in  these  cases,  it  is  narrowed  or  precluded  by  estoppel  or  ad- 
mission.   5.  Where  the  question  is  whether  there  is  corporate 
power  to  take  by  will,  sufficient  regularity  of  origin  to  show  an 
attempt  in  good  faith  to  comply  with  the  law  may  be  required. 

1  Jones  v.  Dana,  24' Barb.  399,  ALLEN,  J. 

2  In  Methodist  Ep.  Ch.  v.  Pickett,  19  N.  Y.  482,  and  Slocum  v.  Warren,  10  R.  I. 
124,  this  rule  is  laid  do.wn  in  terms  applicable  only  to  actions  on  contracts  made  by 
the  other  party  with  the  supposed  corporation;  but  the  reasons  of  the  rule  (which 
are  explained  in  those  cases,  and  in  Narragansett  Bank  v.  Atlantic  Silk  Co.,  cited  be- 
low), are  equally  applicable,  and  in  practice  the  rule  is  actually  applied,  to  all  actions 
in  the  nature  of  private  remedies,  with  the  exceptions  indicated  in  paragraph  3. 

3.Searsburgh  Turnpike  Co.  v.  Cutler,  6  Vt,  315. 

4  Narragansett  Bank  v.  Atlantic  Silk  Co.  3  Mete.  288,  SHAW,  Ch.  J.     "Whatever 
the  alleged  corporation  would  have  to  prove  in  an  action  brought  by  it,  on  an  is^tie 
of  "no  such  corporation,"  may  be  controverted  in  an  action  against  the  supposed 
corporation,  for  relief  based  on  the  corresponding  allegation  that  no  such  corporation 
ever  existed;  but  beyond  this  the  party  contesting  the  claim  of  corporate  existence 
cannot  go.     ALLEX,  J.,  Jones  v.  Dana,  24  Barb.  398. 

5  Ang.  <fc  A.  §  94 ;  N.  Y.  Code  of  Pro.  £§  430,  432. 

8  See  Searsburgh  Turnpike  Co.  v.  Cutler,  6  Vt.  314.     Contra,  Matter  of  N.  Y. 
Elevated  Rw.  Co.,  3  Abb.  New  Cases. 

7  Commonwealth  v.  U.  S.  Bank,  2  Ashm.  849. 

8  See  Railw.  Co.  V.  Allerton,  18  Wall.  233. 


20  ACTIONS  BY  AND   AGAINST  CORPORATIONS. 

4.  Incorporation  Incidentally  in  Issue.'] — If  the  corporation  is 
not  a  party,  and  its  existence  is  only  collaterally  in  question,  as 
for  instance,  on  indictment  for  counterfeiting  bank  notes,  or  in  an 
action  on  a  stockholder's  contract  for  sale  of  stock  in  a  reputed 
corporation,  where  fraud  is  not  alleged,  less  proof  suffices  than  in 
actions  by  or  against  the  corporation  ;  but,  if  its  existence  is  di- 
rectly in  issue,  even  where  it  is  not  a  party,  as,  for  instance,  wfcere 
an  individual  defends  on  the  ground  that  a  private  corporation 
was  the  real  party  in  interest,  and  liable  in  his  stead,1  the  rules 
stated  in  this  chapter  will  apply.     In  proceedings  to  enforce  ordi- 
nances of  a  municipal  corporation,  the  illegality  of  the  corporate 
organization  cannot  be  shown  to  defeat  a  recovery  ;  in  such  a  col- 
lateral proceeding,  evidence  that  the  corporation  is  acting  as  such 
is  all  that  is  required.2 

5.  Legislative  Sanction  Necessary.] — By  the  American  law, 
evidence  of  mere  user,  however  long  continued,  is  not  enough  to 
prove  the  existence  of  a  private  corporation.8    There  must  be 
legislative  sanction,4  usually  to  be  shown  only  by  the  existence  of 
a  charter,6  or  some  statute  under  which  the  supposed  corporation 

/  might  lawfully  be  created ;  and  the  better  opinion  is  (although 
/  many  of  the  cases  fail  to  indicate  the  distinction),  that  the  familiar 
i  rule  forbidding  one  who  has  dealt  with  a  body  as  incorporated,  to 
question  its  corporate  character,  does  not  apply  to  the  question  of 
/   legislative  sanction.     The  estoppel  Serves  •  only  in  place  of  evi- 
dence of  the  existence  and  regularity  of  organization,  it  does  not 
preclude  denying  the  existence  or  validity  of  a  law  affording  the 
necessary  sanction.6    Otherwise  corporations  could  be  formed  by 
contract.     But  a  legislative  recognition  of  the  existence  of  a  cor- 
poration— as,  for  instance,  by  a  statute  even  modifying  its  name 
— is,  if  coupled  with  some  evidence  of  user,  or  admission,  conclu- 
sive evidence  of  its  existence,  as  against  every  one  but  the  State.7 

1  Williams  v.  Sherman,  7  Wend.  109. 

•  1  Dill.  Mun.  C.  440,  §  351. 

s  Per  SELDEX,  J.,  Methodist  Ep.  Ch.  v.  Pickett  (above).  Especially  if  the  acts  are 
such  as  an  unincorporated  body  might  perform.  Greene  v.  Dennis,  6  Conn.  292. 
For  statutory  exception  in  the  case  of  Plank  Road  Companies,  see  L.  of  N.  Y.  1855, 
c.  546,  §  1 ;  Belfast,  <fcc.  Plank  Road  Co.  v.  Chamberlain,  32  N.  Y.  651.  That  a 
charter  was  once  granted  to  a  municipal  corporation  may  be  presumed  from  very 
long  user.  1  Dill.  M.  C.  168;  Robie  v.  Sedgwick,  35  Barb.  327. 

4  Such,  for  instance,  as  that  it  claimed  to  be  and  acted  as  a  town  with  the  knowl- 
edge and  assent  of  the  legislature.     Bow  v.  Allenstown,  34  N.  H.  365,  and  cases  cited ; 
but  see  Welch  v.  Ste.  Genevieve,  1  Dill.  C.  Ct.  136.    But  the  recognition  must  be  legis- 
lative. Recognition  by  the  executive  is  not  enough.   People  v.  Phoenix  Bank,  24  Wend. 
431. 

5  Proof  of  the  destruction  of  public  records  in  the  same  repository  as  the  charter 
is  admissible  to  explain  the  omission  to  produce  a  charter.    Bow  v.  Allenstown,  34 
N.  H.  351 ;  and,  in  such  a  case,  evidence  of  reputation  and  forty  years'  user,  maybe 
sufficient.     Dillingham  v.  Snow,  5  Mass.  547. 

6  Heaston  v.  Cincin.  R.  R.  Co.  16  Ind.  275.    There  can  be  no  estoppel  in  the  way 
of  ascertaining  the  existence  of  a  law.     Town  of  South  Ottawa  v.  Perkins,  94  U.  S. 
267;  Snyder  v.  Studebaker,   19  Ind.  462.     Compare  Phoenix  Warehousing  Co.  v. 
Badger,  6  Hun,  293,  where  the  estoppel  was  extended  to  the  question  whether  the 
corporate  object  was  within  the  scope  of  the  statute. 

7  Green's  Brice's  Ultra  V.  21,  n.  f,  and  cases  cited. 


PROVING  CORPORATE  EXISTENCE.  21 

6.  Domestic   Corporation — General  Law  or  Charter. .] — The 
courts1  take  judicial  notice,  not  only  of  the  general  laws  under 
which  corporations  are  now  usually  formed,3  but  also  of  the  ex- 
istence and  contents  of  special  charters  of  municipal  corporations. 
They  may  do  so  respecting  other  public  corporations,  but  the 
line  of  distinction  between  public  and  private  corporations  is  ill- 
defined,    and,  in  practice,  a  special  charter,  or  so  much  of  it  as  is 
material,  should  be  put  in  evidence.     It  may  be  read  from  the 
volumes  printed  by  authority  of  the  government,5  or  (as  is  more 
convenient  for  inserting  the  charter  in  the  record  as  an  exhibit), 
by  producing  a  certified  copy.6 

7.  Evidence  of  Authenticity  of  Statute.] — The  presumption  is 
that  a  statute  published  by  authority  of  the  government  was  cor- 
rectly passed  in  respect  to  form.     The  objection  that  the'requisite 
forms  were  not  observed — e,  <?.,  that  three-fifths  were  not  present, 
<fec., — must  be  pleaded,  where  the  course  of  pleading  requires 
the  statute  to  be  pleaded,  and  .must  be -affirmatively  proved.7    The 
court  may,  and  should,8  if  necessary,  look  beyond  the  printed  statute 
book  and  examine  the  original  engrossed  bill  on  file  in  the  officeiof 
the  Secretary  of  State,  to  ascertain  if  a  bill  had  a  constitutional 
vote.9    Whenever  the  existence  of  a  statute,  or  the  time  when  a 
statute  took  effect,  or  the  precise  terms  of  a  statute,  are  in  ques- 
tion, the  judges  have  a  right,  unless  a  different  rule  has  been  en- 
acted, to  resort  to  any  source  of  information  which,  in  its  nature, 
is  capable -of  conveying  to  the  judicial  mind  a  clear  and  satisfac- 
tory answer  to  such  questions  ;  al way  s«  seeking  first  for  that  which, 
in  its  nature,  is  most  appropriate.10    Hence  they  may  look  to  other 
connected  records  to  ascertain  the  date  of  enactment,  if  no  date 
appears  in  the  official  certificate.11    So  they  may  look  beyond  the 
authentication  of  the  act,  to  the  journal  of  either  branch,  to  see 
if  the  bill  passed  by  the  constitutional  vote.12    But  the  better 

1  Including  courts  of  United  States  held  within  the  State.     Covington  Draw- 
bridge v.  Shepherd,  20  How.  U.  S.  227. 

2  But  not  of  the  organization  of  the  company  under  it.     Danville,  Ac.  Co.  v. 
State,  16  Ind.  456. 

3  Prell  v.  McDonald,  7  Kans.  426,  s.  c.  12  Am.  R.  423,  and  cases  cited;  and  see 
25  Ind.  612. 

4  See  Abb.  Dig.  Corp.  tit.  Pub.  C.  Priv.  C. ;  1  Whart.  Ev.  §  294. 

5  Wood  v.  J  efferson  County  Bank.  9  Cow.  194;  People  v.  Supervisors  of  Che- 
nango,  8  N.  Y.  317  ;  Howell  v.  Ruggles,  5  Id.  444  ;  N.  Y.  L.  of  1843,  p.  80,  c.  98,  g  2; 
N.  Y.  Code  of  Civ.  Pro.  §  932,  or  within  six  months  after  the  close  of  the  session  at 
which  it  was  passed,  it  may  be  read  from  a  newspaper  officially  designated  to  publish, 
the  laws. 

6  Duncan  v.  Duboys,  3  Johns.  Cas.  125. 

'  People  v.  Supervisors  of  Chenango,  8  N.  Y.  31*7. 

8  But  see  4  Centr.  Law  J.  132. 

9  Purdy  v.  People,  4  Hill,  384,  rev'g  2  Id.  31. 

10  Gardner  v.  The  Collector,  6  Wall.  511. 

11  Id.  509. 

12  Osburn  v.  Staley,  5  W.  Va.  85,  s.  o.  13  Am.  R.  640,  and  cases  cited ;  Skinner 
v.  Deming,  2  Ind.  558 ;  Purdy  v.  People  (above).     Contra,  Grob  v.  Cushman,  45  111. 
119 ;  Louisiana  State  Lottery  Co.  v.  Richoux,  23  La.  An.  743,  B.  c.  8  Am.  II 
Sherman  v.  Story,  30  CaL  253 ;  State  ex  rel.  Pangborn  v.  Young,  3  Yroom  (N.  J.)  29. 


22  ACTIONS  BY   AND  AGAINST  CORPORATIONS. 

opinion  is  that  this  inquiry  for  more  cogent  evidence  than  the 
promulgated  form  of  the  law  can  go  no  further  than  to  ascertain 
the  facts  of  enactment  and  taking  effect.  If  the  act  is  found  to 
have  been  passed  by  a  constitutional  vote,  the  legislative  journals, 
or  other  sources  of  information,  are  not  competent  to  impeach  it 
on  the  ground  of  irregularity  or  departure  from  parliamentary 
usage  in  the  proceedings  of  the  legislature,1  nor  to  show  that  the 
contents  of  the  act  had  been  changed  by  a  mistake  of  the  engross- 
ing clerk.2  For  qualifications  of  these  rules  the  local  statutes 
should  be  consulted.3 

8.  National  Bank.~\ — The  existence  and  organization  of  a  na- 
tional bank  may  be  proved  by  producing  the  certificate  of  the 
comptroller  of  the  currency,  under  his  hand  and  seal,  reciting 
that  it  had  been  made  to  appear  that  the  bank  had  been  duly  or- 
ganized, and  certifying  that  it  was  duly  authorized  to  commence 
business  (without  producing  the  record  of  organization),  together 
with  testimony  to  user  by  a  witness  cognizant  of  the  fact  of  their 
carrying  on  business.4 

9.  Corporation  of  Sister  State.'] — To  prove  the  general  law  of 
incorporation,  or  the  charter  of  a  corporation  of  another  State  or 
territory  of  the  Union,  the  practitioner  may  either  pursue  the 
mode  provided  by  the  law  of  the  forum,  which  usually  permits 
the  law 5  of  a  sister  State  or  territory  to  be  proved  by  producing 
a  book  or  publication,  purporting  or  proved  to  have  been  pub- 
lished by  its  authority,  or  proved  to  be  commonly  admitted  as  evi- 
dence of  the  existing  law,  in  the  tribunals  thereof  (and  such 
evidence  may  be  admitted  on  general  principles  without  an  en- 
abling statute) ; 6  or  he  may  pursue  the  mode  prescribed  by  the 
act  of  Congress,7  and  produce  a  copy  certified  to  by  the  Secretary 
of  such  State,  under  the  seal  of  the  State  ;8  and  in  strictness  a  copy 


1  People  v.  Devlin,  33  N.  Y.269;  Elevated  R.  R.  cas.  3  Abb.  New  Cas.  301,  372,  n. 

s  Mayor,  Ac.  of  Annapolis  v.  Harwood,  32  Md.  471,  s.  c.  8  Am.  R.  161. 

8  By  the  N.  Y.  law,  the  Secretary  of  State's  certificate  upon  the  original  bill  of  the 
date  of  passage  is  conclusive.  1  R.  S.  157,  §  11 ;  People  v.  Devlin  (above).  No  bill 
can  be  deemed  passed  by  two-thirds  vote  (1  R.  S.  157,  §  3),  nor  when  three-fifths 
were  present  (L.  1847,  c.  253),  unless  so  certified  by  the  presiding  officers  of  both 
houses ;  but  the  Secretary  of  State's  statement,  in  the  title  of  the  published  law,  that 
it  was  passed  in  either  way,  is  presumptive  evidence  that  the  bill  was  certified  by  the 
presiding  officers  as  so  passed,  and  his  omission  to  insert  such  statement  is  presump- 
tive evidence  that  it  was  not  so  passed.  L.  1847  (above) ;  L.  1842,  c.  306.  §  3  ;  and 
by  L.  1837,  c.  140,  certified  copies  of  petitions  and  papers  presented  to  the  legisla- 
ture, areprima  facie  evidence. 

4  Merchants'  Bank  v.  Glendon  Co.  120  Mass.  97. 

6  Persse  &  Brooks  Paper  Works  v.  Willett,  1  Robt.  131,  s.  c.  19  Abb.  Pr.  416; 
Barrett  v.  Mead,  10  Allen,  339;  Paine  v.  Lake  Erie,  <fec.  Co.  31  Ini  310,  354, 
B.  c.  1  Withr.  Corp.  Cas.  88fi,  408. 

8  See  People  v.  Calder,  80  Mich.  85,  and  cases  cited.  But  a  statute  book  of  another 
State,  not  purporting  nor  proved  to  be  published  by  authority,  nor  proved  to  be 
commonly  admitted  and  read  as  evidence  in  the  courts  of  that  State,  is  not  admissi- 
ble. Matter  of  Belt,  1  Park.  Cr.  169. 

1  U.  S.  R.  S.  170,  §  905. 

8  Grant  v.  Henry  Clay  Co.  80  Pa.  St.  208. 


PROVING  CORPORATE  EXISTENCE.  23 

under  the  seal  of  the  State  whose  law  it  is,  is  competent  in  the 
courts  of  another  State l  and  in  the  courts  of  the  L  nited  States,2 
without  any  certificate  that  it  is  a  copy,  and  without  proof  of  the 
seal,  or  of  the  official  character  of  the  secretary.3  Or  in  the  case 
of  a  special  charter,  he  may  produce  a  copy,  with  proof  by  a  wit- 
ness who  has  examined  and  compared  the  copy  with  the  original 
in  its  proper  place  of  custody ; 4  and  if  proof  by  an  authenticated 
copy  fails,  from  a  defect  in  the  authentication,  he  may  fall  back 
upon  this  mode.5 

10.  Corporation  of  foreign  State.~\ — In  the  case  of  a  corpora- 
tion of  a  foreign  nation  or  country,  an  exemplified  copy  may  be 
produced,  certified  in  the  manner  prescribed  by  the  law  of  the 
forum ; 6  or  the  statute  or  charter  may  be  read  from  the  officially 
promulgated  publication  of  the  laws  or  edicts  of  the  foreign  State 
containing  the  charter ; 7  or  a  copy  may  be  proved  by  a  witness  as 
stated  in  the  last  paragraph.8 

11.  Modes  of  Proving  De  Facto  Existence.'] — Legislative  sanc- 
tion having  been  shown,  there  are  four  principal  ways  in  which 
the  practical  existence  of  the  corporation  on  that  foundation  is 
shown :  1.  By  evidence  of  the  formal  acceptance  of  the  charter, 
or  the  organization  of  the  incorporators  under  the  statute ;  2.  By 
evidence  that  the  executive  officers  of  the  State  have  authorized 
the  company  to  proceed  with  corporate  business,  upon  the  as- 
sumption that  they  were  duly  organized  and  entitled  to  act ;  3. 
By  evidence  that  they  have  actually  proceeded  to  exercise  cor- 
porate franchises  ;  4.  By  evidence  that  the  very  dealings  between 
them  and  the  adverse  party,  which  gave  rise  to  the  action,  were 
had  on  the  basis  of  a  supposed  incorporation,  and  amount  to  an 
admission  which  ought  to  conclude  the  question. 

It  is  best  to  be  prepared  with  some  evidence  both  of  organi- 
zation and  of  user,  but  the  requisite  cogency  of  proof,  and  the 


1  Coit  v.  Millikin,  1  Den.  376 ;  State  v.  Carr,  5  N.  H.  369. 
8  Id. ;  U.  S.  v.  Johns,  1  Wash.  C.  369. 

3  See  Dorsey  Harvester  Rake  Co.  v.  Marsh,  6  Fish.  Pat.  Cas.  887.     In  the  absence 
of  evidence  to  the  contrary,  the  letters  patent  issued  by  the  executive  of  another 
State,  reciting  the  passage  of  the  charter,  and  certifying  the  performance  of  its  con- 
ditions, have  been  held  sufficient  evidence  of  the  existence  of  a  charter.     Wellers- 
burgh,  <fec.  Co.  v.  Young,  12  Md.  476.     The  seal  is  judicially  noticed;  but  if  it  is  not 
a  common-law  seal,  be  prepared  to  prove  the  foreign  law  as  to  seal.   Courts  requiring 
a  common-law  seal  have  refused  to  take  notice  of  foreign  statutes  allowing  public 
seals  to  be  a  mere  impression  on  paper.     Coit  v.  Millikin,  1  Den.  376. 

4  For  objections  which  may  perhaps  be  raised,  unless  there  are  two  witnesses,  one 
of  whom  has  read  one,  while  the  other  read  the  other,  <fec.,  see  1  Whart.  Ev.  §  94. 

*  Soc.  for  Prop,  of  the  Gospel  v.  Young,  2  N.  H.  312.  The  testimony  of  an  at- 
torney  at  law  of  a  sister  State  is  not  legal  evidence  of  the  statute  law  of  that  State 
where  it  affects  the  merits  of  the  case  ;  but  the  statute  being  proved,  an  attorney  may 
testify  as  to  its  interpretation  by  the  law  of  the  State.  1  GreouL  Ev.  13th  ed  535, 
§  486,  Ac.,  and  cases  cited. 

«  N.  Y.  Code  of  Pro.  §  426 ;  Code  of  Civ.  Pro.  g§  956-8. 

7  N.  Y.  Code  of  Pro.  §  426 ;  Code  of  Civ.  Pro.  §  942. 

8  National  Bank  v.  Do  Bernales,  1  Car.  <fe  P.  569. 


24  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

question  how  far  proof  of  either  of  these  facts  is  enough  without 
the  others,  depends  on  some  considerations  which  have  given  rise 
to  much  apparent  diversity  in  reported  cases,1  and  attention  to 
which  is  necessary  to  guide  in  the  application  of  established  prin- 
ciples. 1.  If  the  record  of  the  organization  is  put  in  evidence,  in 
proportion  as  it  is  full  and  regular,  the  necessity  of  proving  user 
is  reduced.  2.  He  who  has  participated  in  acts  of  user  must 
yield  to  much  slighter  evidence  of  organization  than  he  who  is  a 
stranger  to  the  corporation.  3.  He  who  has  participated  in  the 
steps  of  organization  cannot  usually  avoid  responsibility  by  ob- 
jecting to  tiie  regularity  of  those  steps,  and  must  yield  to  slighter 
evidence  of  user  than  a  stranger.  4.  He  who  has  received  and 
enjoyed  a  consideration  from  the  company  cannot  require  fur- 
ther proof  of  its  corporate  power  to  contract,  or  to  require  him 
to  respond.  5.  One  who  has  in  any  way  dealt  witli  the  company 
as  a  corporation  is  taken  to  have  admitted  its  existence,  and  this 
admission,  though  alone  slight  evidence,  comes  in  aid  of  other 

, ,  proof.      6.  A  mere  trespasser,  claiming  no  title,  cannot  require 

I  evidence  of  regular  organization.2 

12.  Acceptance  of  Charter '.] — Acceptance  of  a  special  charter 
may  be  proved  by  producing  the  corporate  minutes,3  duly  authen- 
ticated,4 containing  a  vote  of  acceptance  ;  and  the  notice  of  the 
first  meeting  need  not  be  proved  in  the  first  instance,  but  may  be 
presumed  after  a  lapse  of  time,5  or  after  user.6  Or  the  accept- 
ance may  be  shown  by  indirect  evidence,  such  as  official  notice  of 
acceptance  given  to  the  State  officers,7  or  a  notice  calling  a  meet- 
ing to  organize,  signed  by  the  defendant  as  a  corporator.8  In 
general,  evidence  that  the  body  in  its  organic  capacity  (as  distin- 
guished from  the  individual  conduct  01  the  corporators),  acted 
under  the  charter,  is  sufficient  evidence  of  acceptance,  unless  the 
charter  prescribes  a  different  method.9  Any  unequivocal  or  de- 
cisive corporate  act 10  is  competent  evidence  of  acceptance.11  And 

1  Soon  after  the  introduction  of  the  method  of  incorporation  by  general  law, 
moreover,  the  courts  relaxed  the  stricter  rules  of  proving  regular  incorporation, 
which  were  often  formerly  applied. 

2  But  this  consideration  does  not  apply  in  ejectment  by  a  corporation,  so  as  to 
make  an  exception  to  the  rule  that  the  plaintiff  must  recover  on  the  strength  of  hia 
own  title.     Goulding  v.  Clark,  84  N.  H.  148. 

It  is  the  varying  effect  of  such  considerations  as  these  which  explains  the  want  of 
any  well  defined  line  as  to  the  requisite  cogency  of  proof  of  user  referred  to  in  De 
Witt  v.  Hastings,  40  Super.  Ct.  (J.  &  8.)  4j63. 

8  Middlesex  Husbandmen,  <fcc.  v.  Davis,  3  Mete.  133. 

4  See  paragraphs  66-59,  below. 

*  Grays  v.  Turnpike  Co.  4  Rand.  5*78. 

*  Middlesex  Husbandmen  v.  Davis,  3  Mete.  133. 

7  Philadelphia  Bank  v.  Lambeth,  4  Rob.  (La.)  463. 

8  Gleaves  v.  Brick  Church  Turnpike  Co.,  1  Sneed,  491. 

9  Bangor,  <fec.  R.  R.  Co.  v.  Smith,  4Y  Me.  34 ;  Taylor  v.  Cocrairs.  of  Newberne,  2 
Jones  Eq.  141. 

10  Thus  acceptance  of  an  act  allowing  a  resurvey  and  alteration  of  route,  is  not 
proved  by  evidence  of  resurvey,  without  alteration.    Pingry  v.  Washburn,  1  Aik.  264. 

11  Abb.  Dig.  Corp.  147. 


PROVING  CORPORATE  EXISTENCE.  25 

acceptance  may  be  presumed  from  the  fact  that  the  corporators 
applied  for  the  charter,1  unless  it  appears  that  no  proceedings 
were  ever  taken  under  it.2  The  rule  requiring  some  evidence 
of  the  acceptance  of  a  charter  does  not  apply  to  municipal  corpo- 
rations,8 nor  to  any  charters  which  are  so  expressed  as  to  take 
effect  in  creating  the  body  corporate  independently  of  any  acts 
on  the  part  of  the  corporators ; 4  but  if  a  charter  of  even  a  mu- 
nicipal corporation  be  made  expressly  to  depend  on  acceptance, 
there  must,  when  incorporation  is  properly  in  issue,  be  some  evi- 
dence of  acceptance.5  Acceptance  may  be  disproved  by  evidence 
of  proceedings  of  the  body  declining  the  charter,  and  resisting  a 
quo  warranto  on  the  ground  that  they  had  never  accepted  it.8 

13.  Organisation  under  General  Lawl\ — If  the  legislative 
sanction  relied  on  is  a  general  law,  the  existence  of  the  corpora- 
tion under  it  may  be  proved,  unless  the  law  otherwise  provides, 
by  producing  the  certificate  of  organization  which  the  law  re- 
quired to  be  filed,7  with  proof  of  its  filing.8  "Where  strict  proof 
is  not  required,  parol  evidence  of  filing  has  been  received  in  lieu 
of  official  certificate.9  The  statutes  now  in  force  usually  make 
the  record  of  the  certificate,  or  a  certified  copy,  evidence  equally 
with  the  original;  but  in  the  absence  of  such  a  provision  the 
original  is  the  best  evidence,10  but  a  certified  copy  is  admissible 
against  the  company,  if,  on  notice,  they  fail  to  produce  the 
original.11  If  the  statute  requires  filing  a  duplicate  in  another 
office,  it  is  the  better  practice  to  prove  both ; u  but  in  all  the 


1  Middlesex,  <fec.  Soc.  v.  Davis,  3  Mete.  133 ;  State  v.  Dawson,  22  Ind.  272. 
8  Newton  v.  Carberry,  6  Cranch  C.  Ct.  632. 

8  Gorham  v.  Springfield,  21  Me.  58  ;    Berlin  v.  Gorham,  34  N.  H.  266  ;    Mining, 
<fec.  Co.  v.  Windham  Co.  Bk.  44  Vt.  497. 

4  Some  authorities  treat  the  question  as  if  it  depended  on  whether  the  act  was  to 
take  effect  immediately  or  not ;  but  the  true  test  is,  Is  its  language  alone  enough  to 
constitute  the  body  a  corporation  (either  immediately  or  at  a  subsequent  day),  or  is 
it  such  as  to  require  the  performance  of  a  condition  to  effect  the  creation  ? 

6  See  City  ot'Paterson  v.  Society,  4  Zabr.  386. 

•  Thompson  v.  Harlem  R.  R.  Co.  3  Sandf.  Ch.  625. 

7  Chamberlin  v.  Huguenot  Manuf.  Co.  118  Mass.  532;  Fortin  v.  U.  S.  Wind  En- 
gine,  &c.  Co.  48  111.  451,  s.  c.  1  Withr.  Corp.  Cas.  437. 

B  Meriden  Tool  Co.  v.  Morgan,  1  Abb.  New  Cas.  125.  The  duplicate  filed  in  the 
Secretary  of  State's  office  need  not  be  proved  where  strict  proof  is  not  required. 
Id. ;  s.  P.  25  N.  Y.  574;  14  Cal.  424.  Proof  of  filing  aftt-r  suit  brought  has  been 
held  enough  in  an  action  on  a  contract  with  the  corporation.  Augur,  «tc.  Co.  v. 
\Vhittier,  117  Mass.  451 ;  and  see  20  N.  Y.  157.  Otherwise  in  an  action  to  enforce 
an  assessment  on  land*.  New  Eel  River  Draining  Assoc.  v.  Durbin,  30  Ind.  173, 
s.  c.  1  Withr.  Corp.  Cas.  353.  As  to  the  cases  in  which  failure  to  provu  filing  may 
be  fatal,  see  Hawes  v.  Anglo-Saxon  Petroleum  Co.  101  Mass.  385,  and  cases  cited. 
In  what  case  the  certificate  is  conclusive,  see  Priest  v.  Essex  Hat  Co.  115  Id.  880. 
For  an  opinion  insisting  on  the  proof  of  performance  of  the  statute  conditions,  in 
case  of  organization  under  a  general  law,  see  Mokelumne,  <fec.  Co.  v.  Woodbury,  14 
Cal.  424. 

9  Miller  v.  Wild  Cat,  <tc.  Co.  52  Ind.  61. 

10  Jackson  v.  Leggett,  7  Wend.  377  ;  Evans  v.  Southern,  <tc.  Co.  18  Ind.  101. 

11  Chamberlin  v.  Huguenot  Mfg.  Co.  118  Mass.  632. 

11  A  sworn  copy  of  the  original,  with  proof  of  filing  in  the  county  clerk's  office, 


26  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

classes  of  cases  where  strict  proof  of  incorporation  is  not  requi- 
site, evidence  of  the  filing  of  either  is  enough  to  go  to  the  jury, 
whether  in  favor  of  or  against  the  company,  if  there  is  evidence 
either  of  user  or  that  the  defendant  has  admitted  the  fact  of  or- 
ganization.1 If  the  certificate  states  all  that  the  statute  requires 
it  to  state,  other  facts,  though  made  by  the  statute  conditions 
precedent  to  its  validity,  may  be  presumed.2  In  the  case  of  a 
corporation  of  a  sister  State,  formed  under  its  general  statute,  the 
evidence  of  incorporation  which  such  statute  declares  shall  be 
deemed  sufficient  to  prove  the  fact  of  such  incorporation,  should 
be  deemed  sufficient  in  the  courts  of  the  State  where  the  case 
arises,  provided  that  due  proof  of  the  existence  and  contents  of 
such  statute  is  also  given/ 

14.  Official  Permission  to  do  Corporate  BnsinessJ] — If  the 
statute  requires  an  official  certificate  by  supervising  State  officers 
to  authorize  a  corporation  to  commence  business,  a  certificate  that 
it  is  so  authorized,  founded  on  a  professed  compliance  with  the 
law  and  accompanied  with  proof -of  user,  is  sufficient,  but  not  ex- 
clusive 4  evidence  of  its  corporate  existence,5  at 6  and  after  the 
time  when  it  was  given,7  without  further  proof  of  organization.8 
Where  the  adverse  party  has  dealt  with  the  company  as  a  corpo- 
ration— for  instance  as  its  collecting  agent, — its  existence  is  suffi- 
ciently proved  by  the  general  law  and  the  certificate  of  organiza- 
tion, without  the  certificate  that  it  was  authorized  to  commence 
business.9  But  in  an  action  for  tolls,  the  official  certificate  is  the 
only  and  conclusive  evidence  of  the  condition  of  the  way.10 

!5.  Disregard  of  Statute  Conditions.] — "Where  the  question  is 
not  raised  by  or  against  the  State,  nor  upon  a  subscription  con- 
tract such  as  requires  for  its  consideration  a  legal  organization,  the 

and  loss  of  the  original,  and  production  of  a  certified  copy  of  the  duplicate  filed  in 
the  Secretary  of  State's  office,  is  sufficient.  N.  Y.  Car  Oil  Co.  v.  Richmond,  6  Bosw. 
213,  s.  c.  10  Abb.  Pr.  185. 

1  Leonardsville  Bank  v.  Willard,  25  N.  Y.  574 ;  Bank  of  Toledo  v.  International 
Bank,  21  Id.  542 ;  De  Witt  v.  Hastings,  40  Super.  Ct.  (J.  &  S.)  475. 

4  All  Saints'  Ch.  v.  Lovett,  1  Hall,  191. 

8  Eagle  Works  v.  Churchill,  2  Bosw.  166  ;  Ang.  <fe  A.  on  Corp.  §  635.  Produce 
an  exemplified  copy  of  the  papers  on  file,  with  authentication  of  the  certifying 
officer's  act  and  power,  either  according  to  R.  S.  U.  S.  §  W06,  or  according  to  the  law 
of  the  forum.  And  by  a  recent  statute  of  New  York,  if  the  certificate  of  organiza- 
tion of  incorporation  in  any  other  State  or  territory,  or  in  Canada,  is  by  the  local 
laws  prima  fade  evidence  of  its  existence,  the  certificate  duly  exemplified,  or  an 
exemplified  copy,  is  equally  evidence  in  the  New  York  courts.  L.  1877,  p.  333,  c. 
811 ;  see  N.  Y.  Code  of  Civ.  Pro.  §§  957,  958. 

4  Duke  v.  Cahawba  Nav.  Co.  10  Ala.  N.  S.  87,  91. 

8  Jones  v.  Dana,  24  Barb.  402,  ALLEN,  J.     At  least  to  go  to  the  jury. 

«  Hyatt  v.  Esmond,  37  Id.  601. 

1  Williams  v.  Babcock,  25  Barb.  109. 

8  Grubb  v.  Mahoning  Nav.  Co.  14  Pa.  St.  302.     In  Pill  v.  Great  W.  Turnpike  Co. 
14  Johns.  416,  it  was  held  that,  as  against  a  subscriber  for  stock,  the  executive  certif- 
icate of  authority  to  commence  business  was  not  sufficient  evidence  of  organization. 
The  records  should  be  produced. 

9  So  held  in  case  of  a  foreign  corporation.     Bank  of  Toledo  v.  International 
Bank,  21  N.  Y.  542. 

10  Duke  v.  Cahawba  Nav.  Co.  10  Ala.  N.  S.  87,  91. 


PROVING  CORPORATE  EXISTENCE.  27 

fact  that  the  steps  of  organizing,  and  proceeding  to  business,  did 
not  comply  with  express  conditions  of  the  charter  or  general  law,  I 
does  not  necessarily  affect  the  case,  if  there  is  color  of  organiza- 
tion and  proof  of  user.1    Compliance  is  presumed  in  the  absence 
of  evidence  to  the  contrary ; 2  and  so  long  as  the  State  does  not  • 
interfere,  the  question  cannot  be  raised  by  an  individual,  unit 
the  statute  makes  it  a  peremptory  condition  precedent,  plainly 
intended  as  such.8 

16.  Effect  of  Proof  of  User.] — As  a  general  rule,  alike  in  ac- 
tions by  and  against  corporations,  the  other  party  sufficiently  sup- 
ports his  allegation  of  incorporation  by  showing  the  charter,  or 
the  general  law  and  certificate  filed,  together  with  actual  use  of 
the  powers  and  privileges  of  an  incorporated  company  under  the 
name  designated  in  the  charter  or  certificate.4     User  duly  thus 
proved  is  enough,  without  proving  a  formal  acceptance  of  the 
charter;5  and  where  there,  is  proof  of  user,  the  certificate  is  ad-// 
missible,  though  defective;6  and  if  the  steps  taken  for  organiza-l , 
tion  are  so  detective  as  to  be  merely  colorable,  the  corporate  ex-f , 
istence  may  still  be  shown  by  proof  of  user.7    If  performance  or  • 
conditions  be  necessary,  proof  of  user  raises  a  presumption  of 
performance.8    One  who  participated  in  the  acts  of  user  cannot 
object  that  there  was  no  due  incorporation.9 

17".  Mode  of  Proving  User.] — A  single  act  may  not  be  suffi- 
cient to  establish  user,10  but  any  evidence  is  competent  showing 
the  repeated  performance  of  characteristically  corporate  acts ; 
that  is  to  say,  acts  which  involve  franchises  which  partnerships 
and  associations  have  no  right  to  assume, — for  instance,  presum- 
ing to  sue  by  a  name  of  incorporation ;  or  to  have  and  use  a  com- 
mon seal ;  or,  without  any  joint  stock  company  law,  to  claim  a 
perpetual  succession  by  which  to  hold  lands,  or  permit  shares  to 
be  transferable  ;  or  the  acquisition  and  enjoyment  of  the  neces- 
sary property  for  a  corporate  use ; n  expenuing  money  and  incur-- 
ring  liabilities  in  preparation  for  corporate  transactions ; 12  main- 

1  Gaines  v.  Bank  of  Miss.  12  Ark.  (Ens.)  769 ;  Bank  of  Manchester  v.  Allen,  11 
Vt.  302 ;  Leonardsville  Bank  v.  Willard.  25  N.  Y.  574. 

J  Williams  v.  Cheney,  3  Gray,  220 ;  and  see  17  Mete.  592,  and  cases  cited  ;  Co- 
lonial Bank  of  Australasia  v.  Willan,  L.  R,  5  P.  C.  417,  s.  c.  9  Moak's  Ens:.  2'J:>. 

3  Union  Horse  Shoe  Works  v.  Lewis,  1  Abb.  U.  S.  518,  s.  c.  1  Withr.  Corp. 
Cas.  73. 

4  Narragansett  Bank  v.  Atlantic  Silk  Co.  3  Mete.  282,  288. 

5  Trott  v.  Warner,  11  Me.  227;  Came  v.  Brigham,  39  Id.  85. 
*  Danneborge  Mining  Co.  v.  Barrett.  26  Cal.  286. 

I  Even  in  an  action  on  a  subscription  for  stock.    Buffalo,  <fcc.  R.  R.  Co.  v.  Cary, 
26  N.  Y.  75. 

8  \\illiams  v.  Union' Bank.  2  Humph.  339. 

9  Aspinwall  v.  Sacchi,  67  N.  Y.  338,  nnd  cases  cited. 

10  Per  ALLEN,  J..  Buffalo,  Ac.  R.  R.  Co.  v.  Cary,  26  N.  Y.  79. 

II  Buffalo,  <fec.  R.  R.  Co.  v.  Cary,  26  N.  Y.  76;  All  Saints'  Church  v.  Lovett,  1 
Hall,  191. 

u  Buffalo,  <tc.  R.  R.  Co.  v.  Gary,  above ;  but  compare  Do  Witt  v.  Hustings,  40 
Super.  Ct  (J.  &  S.)  463, 475. 


28  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

taining  a  place  of  business  where  the  company  continually  car- 
ried on  the  corporate  business  specified  ; l  and  the  fact  that  their 
business  was  managed  by  directors  chosen  from  time  to  time ; 3 
the  fact  that  they  issued  or  received,  and  acted  on  documents 
such  as  insurance  policies,  bonds  for  fidelity  of  officers ; 3  and  the 
like. 

18.  Admission  of  Incorporation^ — A  mere  parol  admission 
that  the  body  was  incorporated  is  competent  evidence,  against 
the  party  who  made  it,  of  the  fact  of  acceptance  of  the  charter 
or  of  organization  under  a  general  law,4  but  is  never  conclusive 
unless  connected  with  circumstances  raising  an  equitable  estoppel 
against  him.5    To  give  cogency  to  such  an  admission  or  estoppel 
it  should  clearly  import  corporate  as  distinguished  from  associate 
character.6    The  estoppel  does  not  conclude  the  party  as  to  the 
existence  of  legislative  sanction,  but  only  as  to  matters  of  fact, 
such  as  organization  and  user.7    And  when  the  estoppel  exists,  it 
need  not  be  pleaded,  but  is  to  be  given  in  evidence  in  aid,  or  in- 
stead, of  direct  proof.8 

19.  Estoppel  against  the  Company.'] — It  is  a  general  principle 
that  at  least  where  there  is  an  act  or  charter  in  existence  under 
which  a  company  by  taking  the  proper  steps  can  become  a  cor- 
poration, if  a  company  does  de  facto  organize  and  hold  itself  out 
as  a  corporation,  contracting  obligations  as  such,  it  cannot,  when 
sued  upon  such  obligations  by  persons  who  have  dealt  with  it  as 
such,  in  good  faith,  be  permitted  to-  avoid  a  corporate  liability 
thereon,  by  setting  up  that  it  has  not  taken  all  the  steps  pre- 


1  U.  S.  Bank  v.  Stearns,  15  Wend.  314;  Commonro  r.  Bakeman,  105  Mass.  56,  60. 
8  Utica  Ins.   Co.  v.  Tillman,  1  Wend.  556 ;  Wilmington,  «fec.  R.  R.  Co.  v.  Saun- 
dera,  3  Jones  L.  R.  126. 

3  Cahill  v.  Kalamazoo  Ins.  Co.  2  Dougl.  124. 

4  Thus  defendant's  letters,  admitting  that  he  held  the  money  of  the  bank,  plaintiff, 
were  admitted  in  evidence  by  Abbott,  C.  J.,  in  connection  with  a  charter  raising  a 
question  of  misnomer,  and  it  was  left  to  the  jury  to  say  that  the  bank  was  the  same. 
Nat.  Bk.  v.  De  Bernales,  1  Car.  &  P.  569. 

6  Welland  Canal  Co.  v.  Hathaway,  8  Wend.  480.  This  case  is  sound  in  its  con- 
clusion; although  some  of  the  reasons  assigned — as  that  a  corporation  could  not  be 
estopped,  and  that  an  ambiguous  admission  would  not  be  competent, — are  not  now 
safe  guides.  The  fact  that  the  note  in  suit  was  made  payable  at  a  specified  national 
•bank,  who  are  plaintiffs,  does  not  raise  a  presumption  of  law  that  they  are  a  corpora- 
tion, but  is  only  evidence  for  the  jury.  Hungerford  Nat.  Bk.  v.  Van  Nostrand,  106 
Mass.  559.  So  defendant's  correspondence  with  a  bank  as  its  collecting  agent  is  com- 
petent, together  with  user  of  corporate  franchises,  under  color  of  au  act  authorizing 
the  incorporation.  Bank  of  Toledo  v.  International  Bank,  21  N.  Y.  542. 

Contra,  1  Greenl.  Ev.  13th  ed.  240,  §  203.  Many  cases  in  the  books  lay  down 
the  rule  in  unrestrained  language  to  the  effect  that -he  who  deals  with  a  corporation 
cannot  deny  its  character  when  sued  on  the  contract,  but  the  rule  depends  on  the 
existence  of  facts  constituting  an  equitable  estoppel.  In  the  leading  case,  Henriquez 
v.  Dutch  West  India  Co.  2  Ld.  Raym.  1535,  the  cause  of  action  was  a  bail  bond  given 
by  defendants  to  the  company,  plaintiff,  in  a  name  explicitly  importing  incorpora- 
tion, and  in  an  action  in  which  the  incorporation  was  proved. 

6  Id.     Contra,  McBroon  v.  Lebanon,  31  Ind.  268,  s.  o.  1  Withr.  Corp.  Caa.  873. 

T  See  paragraph  5,  above. 

£  NELSON,  J.,  Welland  Canal  Co.  v.  Hathaway,  8  Wend.  482. 


PROVING  CORPORATE  EXISTENCE.  29 

scribed  as  conditions  precedent  to  its  legal  existence.1  When 
such  a  defense  is  set  up,  it  is  for  those  who  rely  on  it  to  show 
that  they  acted  under  an  honest  mistake,  and  that  the  other  party 
was  not  misled  to  his  prejudice  thereby.2  And  upon  the  same 
ground  a  corporation  which  has  dealt  in  excess  of  its  powers,  and 
retains  the  fruit  of  its  dealing,  cannot,  nor  can  any  one  in  its 
place,  refuse  to  pay  the  consideration  to  one  who  acted  in  good 
faith.8 

20.  Estoppel  against  those  Dealing  with  the  Company. ~\ — Upon 
the  same  principle  one  who  has  contracted  with  a  de  facto  cor- 
poration, either  directly  or  through  an  agent  designated  as  such 
in  an  obligation  naming  the  corporation,  and  who  retains  or  has 
applied  the  fruits  of  his  dealings  with  it,5  or  who  has  accepted 
from  the  company  a  corporate  office  and  so  received  its  property,6 
cannot  contest  his  liability  in  respect  to  such  dealings  on  the 
ground  of  any  defect  in  its  organization,7  noi^on  the  ground  that 
the  dealings  in  question  wej^ultra  vires?  or  even  forbidden  by 
the  charter.9    This  estoppel,  it  is^tfueTls  conclusive  only  as  to 
the  existence  and  power  at  the  time  the  transactions  were  had, 
but  the  existence  is  presumed  to  continue  so  that  corporate  power 
to  sue  and  be  sued  is  conclusively  implied,  unless  dissolution  by 
the  State  is  shown. 

21.  Estoppel  against  Members  and  Subscribers^ — It  is  often 
said  that  one  who  subscribes  for  stock  in  a  company  cannot,  when 
sued  on  his  subscription,  or  on  the  corporator's  individual  lia- 
bility for  the  debts  of  a  corporation,  question  the  corporate  char- 
acter and  power  to  contract  which  he  has  thus  admitted ; 10  but  the 
true  rule  in  regard  to  members  and  subscribers  is  the  same  that 
has  already  been  stated  in  respect  to  other  persons,  that  the  ad- 
mission is  not  conclusive  unless  there  is .  ground  for  an  equitable 
estoppel — as,  for  instance,  where  one  becomes  a  member  of  a  mut- 
ual insurance  company,  and,  on  giving  a  premium  note,  receives 
a  policy,11  or  where  one  not  only  receives  certificates  for  shares,12 

1  Slocum  v.  "Warren,  10  R.  I.  124,  and  cases  cited. 

*  Callender  v.  Painesville,  <fcc.  R.  R.  Co.  11  Ohio  St.  516,  626. 
8  Parish  v.  Wheeler,  22  N.  Y.  494. 

4  Vater  v.  Lewis,  36  Ind.  283,  s.  c.  10  Am.  R.  29. 
6  Palmer  v.  Lawrence,  3  Sandf.  161,  and  cases  cited. 

6  All  Saints  Ch.  v.  Lovett,  1  Hall,  197. 

7  Palmer  v.  Lawrence,  above. 

*  Parish  v.  Wheeler,  22  N.  Y.  494. 

»  Steam  Nav.  Co.  v.  Weed,  17  Barb.  378,  A.  J.  PARKER,  J. 

10  So  held  on  demurrer  in  a  frequently  cited  case.     Dutchess  Cotton  Manuf.  v. 
Davis,  14  Johns.  238;  and  see  Chubb  v.  Upton,  Sup.  Ct.  U.  S.  Oct.  1877;  17  Alb. 
L.  J.  77. 

11  White  v.  Ross,  4  Abb.  Ct.  App.  Dec.  590;  Trumbull  Co.  Mat.  F.  Ins.  Co.  v. 
Homer,  17  Ohio,  407. 

13  De  Witt  v.  Hastings,  40  Super.  Ct.  (J.  <fe  S.)  475.  The  bare  receipt  of  a  cer- 
tificate  does  not  prove  membership,  much  less  corporate  existence,  2  Whart.  Kv. 
§  1152,  citing  Challis"  Case,  L.  R.  6  Ch.  266  ;  but  an  acknowledgment  of  receiving  or 
holding  them  may.  Id. ;  Chubb  v.  Upton,  above  cited. 


30  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

but  holds  or  appropriates  the  stock ; l  or  where  he  participates  in 
acts  of  user,  thus  aiding  to  hold  out  the  company  to  the  world  as 
a  corporation. 

22.  The  Estoppel  Liberally  Applied^ — This  rule  of  equitable 
estoppel  is  freely  applied  in  furtherance  of  justice,  both  against 
companies  and  in  their  favor,  and  in  favor  of  their  receivers  or 
others  claiming  under  them.2     The  same  general  principles  of  es- 
toppel which  preclude  contesting  corporate  existence,  preclude 
contesting  the  fact  of  acceptance  of  a  new  power,  though  con- 
ferred by  law  upon  condition.3    The  equitable  estoppel,  ii  raised 
by  an  undisputed  state  of  facts,  is  for  the  court  to  pass  on,  and 
submission  to  the  jury  is  not  necessary.4    Where  there  are  several 
parties  contesting  the  question,  and  some  are  estopped,  a  want  of 
proof  that  the  others  participated  personally  in  the  dealings  with 
the  corporation  as  such,  must  be  objected  to  at  the  trial.5 

23.  The  General  Principle  as  to  Proof  of  Incorporation^} — 
In  conclusion,  the  rule  of  requisite  proof  of  incorporation  which 
I  deduce  from  the  best  considered  cases,  is,  that  where  the  issue 
of  corporation  or  no  corporation  arises  only  on  the  question  of 
power  to  make  the  particular  contract,  or  appear  as  a  party  in  the 
particular  action  in  controversy,  it  is  necessary,  and  unless  inter- 
ference by  the  State  is  shown,  it  is  sufficient  to  show  a  charter, 
and,  under  that  charter,  user  of  corporate  powers,  on  other  occa- 
sions reasonably  contemporaneous  with  the  one  in  suit ;  or  to  show 
a  general  law,  and  user,  by  a  professed  organization  under  the  law,6 
01  corporate  powers,  on  other  occasions  reasonably  contempora- 
neous with  those  in  suit ;  and,  in  either  class  of  cases,  proof  of 
user  is  aided  by  an  admission  of  the  fact  of  incorporation,  and  is 
dispensed  with  by  circumstances  which  equitably  estop  the  party 
from  denying  what  he  has  admitted. 

24.  Materiality  of  Date.'] — The  evidence  should  be  viewed 
not  merely  with  reference  to  the  time  of  commencement  of  suit, 
in  which  regard  it  only  affects  the  power  to  appear  as  a  party  on 
the  record,  but  also  with  reference  to  the  time  when  the  corpo- 
rate power  is  alleged  to  have  been  exercised,  in  which  regard  it 
may  affect  the  substance  of  the  cause  of  action.     For  either  pur- 


1  See  Palmer  v.  Lawrence,  3  Sandf.  161 ;  Parish  v.  Wheeler,  22  N.  Y.  494. 

2  In  an  action  by  the  company's  indorsee  of  premium  notes  made  by  defendant, 
expressed  to  be  payable  to  the  insurance  company,  the  production  of  the  notes  is 
prima  facie  evidence  against  him  that  the  corporation  was  duly  organized  and  com- 
petent to  transact  the  business  in  question.     Nor  need  the  indorsee  show,  in  the  first 
instance,  that  the  corporation  had  complied  with  the  law  of  its  own  State,  or  that  of 
the  State  where  the  contract  was  made.     Williams  v.  Cheney,  3  Gray,  220 ;  Top- 
ping v.  Bickford,  4  Allen,  120. 

*  Zabriskie  v.  Cleveland,  <fec.  R.  R.  Co.  23  How.  U.  S.  39"7,  and  cases  cited. 

4  Graff  v.  Pittsburgh,  <fcc.  R.  R.  Co.  31  Pa.  St.  496. 

5  Leonardsville  Bank  v.  Willard,  25  N.  Y.  574,  affi'g  16  Abb.  Pr.  111. 

6  The  same  principle  applies  in  case  of  consolidation  of  corporations,  as  in  orig- 
inal creation.    Mitchell  v.  Deeds,  49  111.  416,  464,  s.  c.  1  Withr.  Corp.  Cas.  460. 


CORPORATE  POWERS  IN  GENERAL.  31 

pose  the  mode  of  proof  is  the  same.  If  the  existence  of  incorpo- 
ration before  the  exercise  of  corporate  power  is  shown,  there  is  a 
presumption  of  law  that  the  incorporation  continued,  unless  evi- 
dence tending  to  show  the  contrary  is  given  ;  but  if  existence  at  a 
later  period  only  is  shown,  there  is  no  presumption,  without  other 
evidence,  that  incorporation  was  had  before  the  exercise  of  the 
power.1  In  ordinary  cases,  it  is  well  to  present  testimony  to  user 
covering,  in  a  general  way,  the  whole  period  involved. 

25.  MisnomerJ] — An  error  in  the  corporate  name  used  on  the 
record,  goes  only  in  abatement,2  and  in  modern  practice  is  freely 
amendable  in  furtherance  of  justice,  on  proof  of  the  true  name;8 
and  where  there  is  an  error  in  the  name  used  in  a  deed  or  will, 
the  corporation  should  appear  in  its  true  name  and  aver  that  the 
instrument  intended  them  by  using  the  wrong  name.4    And  the 
instrument  produced  by  the  corporation,  with  prima  facie  evi- 
dence of  delivery  to  tnem,  is  competent  evidence  against  the 
grantor  and  those  claiming  under  him,  that  the  corporation  were 
known  and  intended  by  the  name  used.5 

26.  Fraud,  Forfeiture  or  ATon-user.'] — Upon  the  mere  ques- 
tion of  corporate  existence  it  is  not  competent  (except  in  some 
cases  where  strict  proof  is  required)  to  give  evidence  that  the 
charter  was  obtained  by  a  fraud,  not  infecting  the  very  cause  of 
action  itself,  nor  that  by  misuser  or  non-user  the  corporation  have 
become  amenable  to  a  forfeiture  of  their  franchises,6  nor  even 
that  there  has  been  such  a  cessation  of  business  as  had  been  pre- 
viously declared  by  statute  should  have  the  effect  to  terminate  the 
corporate  powers,  nor  that  there  has  been  a  voluntary  dissolution 
without  judicial  proceedings.7 

II. — CORPORATE  POWERS  IN  GENERAL. 

27.  New  PowersJ] — The  acceptance  of   an  apparently  bene- 
ficial grant  of  additional  power,  subsequent  to  the  charter,  may  be 
inferred  as  against  the  body  as  a  whole,  and  equally  in  its  favor 
where  strict  proof  is  not  required,  from  slight  evidence  of  ac- 


1  In  the  case  of  a  municipality,  if  the  date  of  first  incorporation  is  material,  the 
mere  fnct  that  a  charter  is  put  in  evidence  does  not  raise  a  presumption  of  law  that 
there  was  no  prior  incorporation.  It  is  at  most  a  question  for  the  jury.  Bow  v.  Al- 
lenstown,  34  N.  H.  351. 

8  2  N.  Y.  R.  S.  549,  §  14 ;  Christian  Soc.  in  Plymouth  v.  Macomber,  3  Mete. 
(Mass.)  235. 

8  Bank  of  Havana  v.  Magee,  20  N.  Y.  355,  affi'g  Bank  of  Havana  v.  "Wickham,  7 
Abb.  Pr.  134.  Compare  Hallett  v.  Harrower,  33  Barb.  537.  For  a  strictrule  against 
misnomer,  where  a  corporation  proceeds  under  statute  adversely  to  common  right, 
see  Glass  v.  Tipton,  <fec.  Co.  1  Withr.  Corp.  Cas.  377,  s.  o.  32  Ind.  876.  Compare 
Bank  of  Commerce  v.  Mudd,  32  Mo.  218. 

4  See  will  cases  in  chapter  on  A  ctions  by  and  against  Heirs,  <tc. 

8  Mayor,  <tc.  v.  Blaniire,  8  East,  493. 

8  Nor  even  that  the  corporation  were  not  organized  within  the  time  limited  by 
the  charter.  County  of  Macon  v.  Shores,  97  U.  S.  (7  Otto)  272. 

1  2  Abb.  N,  Y.  Dig.  339-841;  Ang.  <t  A.  on  Corp.  £  (536,  and  cases  cited.  Re- 
ceivership does  not  necessarily  bar  sulk  Willitts  v.  Waite,  25  N.  Y.  577;  aud  see  20 
Wall.  1. 


82  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

ceptance  or  acquiescence  by  a  majority  of  the  corporators  or  of 
the  directors,  as  the  case  may  require ;  in  some  form  such  evi- 
dence is  requisite ;  and  even  then  it  does  not  necessarily  prove 
the  act  to  be  binding  on  a  particular  associate.1 

28.  Distinction  between  Original  Powers  of  Corporation  and 
Delegated  Powers  of  Officers.'] — The  rules  of  pleading  and  evi- 
dence both  recognize  the  distinction  between  the  original  powers 
of  a  corporation,  which  are  such  as  are  expressly  conferred  or 
reasonably  implied  in  the  statute,  viewed  in  relation  to  the  re- 
quirements and  usages  of  the  business  for  which  incorporation 
was  granted,  and  the  authority  to  act  in  the  exercise  of  such 
powers  which  is  conferred  by  the  corporation  or  managing  board 
on  its  officers  and  agents.     Under  an  allegation  merely  of  want  of 
corporate  power  to  do  the  act,  evidence  that  an  act  the  corpora- 
tion had  power  to  do,  was  done  by  officers  whom  the  board  had 
not  authorized,  is  inadmissible,2  except  by  amendment ;  and  un- 
der an  allegation  merely  that  the  officer  was  not  authorized  by 
the  corporation,  evidence  merely  that  the  act  was  not  within  the 
corporate  power  would  be  equally  objectionable.      But  the  vari- 
ance must  be  substantial  and  misleading  to  have  the  effect  to  ex- 
clude the  evidence.     The  proper  authority  to  the  officer  or  agent 
by  whose  hand  the  act  is  shown  to  have  been  done,  may  be  proved 
under  a  general  allegation  that  the  corporation  did  the  act,3  and 
under  an  allegation  of  authority  in  the  agent,  evidence  of  subse- 
quent ratification  equivalent  in  effect  is  admissible.4    Where  the 
allegation  is  merely  general,  that  the  corporation  did  the  act,  a 
denial  of  the  act  admits  evidence  of  the  want  of  authority.5 

29.  Evidence  of  Delegation  of  Power. ~] — To  charge  a  corpora- 
tion upon  the  act  of  an  officer  or  agent,  it  must  be  shown  directly 
or  presumptively,  either  that  the  act  was  performed  while  in  the 
discharge  of  his  ordinary  duty  in  the  usual  course  of  business,  and 
was  within  the  general  scope  and  apparent  sphere  of  such  duty, 
or  that  it  was  expressly  authorized,  or  that  it  was  performed  with 
the  knowledge  and  implied  assent  of  the  directors  or  of  the  cor- 
poration or  its  authorized  officers,  or  was  subsequently  ratified  by 
them.6 

Where  there  was  a  consideration,  and  not  an  absolute  want  of 
authority  in  the  officers  to  do  any  act  of  the  nature  of  that  in 
question,  but  only  a  want  of  authority  in  the  particular  instance, 

1  Ang.  <fc  A.  63-69,  §§  81-86 ;  Railway  Company  v.  Allerton,  18  Wall.  233. 

*  Ogden  v.  Raymond,  5  Bosw.  16;  3  Abb.  Ct.  App.  Dec.  396. 

3  Partridge  v.  Badger,  25  Barb.  146;  Nelson  v.  Eaton,  26  N.  Y.  410.     An  allega- 
tion that  a  contract  was  made  by  the  president  and  directors  of  the  company,  is 
equivalent  to  saying  that  it  was  made  by  the  corporation.     Insurance  Co.  of  S.  A.  v. 
McDowell,  50  111.  120,  s.  c.  1  Withr.  Corp.Cas.  438;  Soulby  v.  Smith,  3  Barn.  &  Ad. 
929.     Compare  65  N.  Y.  278. 

4  Hoyt  v.  Thompson,  19  N.  Y.  207. 

8  Baleman  v.  Midwales  Co.,  L.  B.  1  C.  P.  499.    Compare  p.  399  of  this  TO!. 

•  First  Nat.  Bank  v.  Ocean  Nat.  Bank,  60  N.  Y.  290,  and  cases  cited. 


CORPORATE  POWERS  IN  GENERAL.  33 

he  who  would  impeach  the  power  must  show,  either  by  direct  ev- 
idence or  presumptively,  that  the  want  of  authority  was  known 
to  the  other  party  as  well  as  to  the  officers.1 

.  30.  General  Presumptions  as  to  Corporate  Acts.~\ — The  same 
presumptions,  whether  of  law  drawn  by  the  court,  or  of  fact, 
allowed  to  be  drawn  by  a  jury,  arise  in  respect  to  the  conduct  of 
corporations,  and  their  officers  and  agents,  as  in  respect  to  that  of 
individuals  and  their  agents,  except  where  statutes  impose  a  dif- 
ferent rule.2  It  will  be  presumed  that  they  conduct  their  opera- 
tions, as  to  details,  substantially  upon  the  same  principles  and  in 
the  same  manner  as  individuals  engaged  in  like  business.8  The 
principle  is  well  settled  that  dealings  which  are  not  apparently 
beyond  the  scope  of  the  incorporation,  and  are  not  expressly  or 
by  necessary  implication  forbidden  by  law,  are  presumed  to  be 
valid  until  the  contrary  is  shown ; 4  and  the  later  decisions  of  the 
highest  authority  go  far  to  support  the  rule,  that  any  formal  con- 
tract of  a  corporation,  not  expressly  or  by  necessary  implication 
forbidden  or  illegal,  is  valid  against  the  corporation,  when  there 
is  ground  either  for  an  equitable  estoppel,  or  for  holding  that  the 
parties  are  are  not  in  pari  delicto  in  exceeding  the  limits  of  the 
law.5  Illegality  is  not  presumed  of  the  action  of  a  corporation.8 
Acts  done  by  them  which  presuppose  the  existence  of  other  facts 
to  make  them  legal,  are  presumptive  proof  of  such  other  facts ; 7 
and  the  burden,  both  of  allegation 8  and  of  proof,9  is  on  the  party 

1  See  1  Redf.  on  Rw.  603  (4). 

J  Bank  of  the  U.  S.  v.  Dandridge,  12  Wheat.  70;  s.  p.  Union  Bank  v.  Ridgely,  1 
Ear.  &  G.  324. 

3  Mead  v.  Keeler,  24  Barb!  20. 

4  Green's  Brice's  Ultra  V.  40,  n.;  and  see  6  Moat's  En?.  IT,  n. 

6  Bissell  v.  Mich.  S.  &  N.  I.  R.  R.  Co.  22  N.  Y.  258;  Riche  v.  Ashbury  Rw.  Carr. 
Co.  L.  R.  9  Exch.  224;  7  H.  of  L.  653;  Green's  Brice's  Ultra  V.  379,  n.  A  part  of 
the  apparent  conflict  in  the  hostile  authorities  on  this  subject  is  removed  by  dis- 
tinguishing between  cases,  1.  where  the  objection  was  raised  by  the  company  to 
avoid  its  liability  upon  the  act  in  question,  upon  the  ground  that  the  act  was 
foreign  to  the  scope  of  incorporation ;  and,  2.  where  the  objection  from  the  same 
source  was  to  an  act  in  excess  of  the  officers'  authority ;  and,  8.  where  the  objection, 
was  raised  by  a  dissenting  shareholder,  or  by  a  creditor,  that  the  company  could  not. 
part  with  its  funds  for  a  purpose  foreign  to  the  scope  of  incorporation. 

8  Thus  power  to  acquire  a  patent  may  be  inferred  from  the  descriptive  title  of  the 
corporation.  Dorsey  Harvester  Rake  Co.  v.  Marsh,  6  Fish.  Pat.  Cas.  393,  citing 
Blanchard's  Gunstock  Turning  Factory  v.  Warner,  1  Blatchf.  271. 

1  Nelson  v.  Eaton,  26  N.  Y.  410,  s.  o.  16  Abb.  Pr.  113,  rev'g  7  Abb.  Pr.  SOB. 
This  is  a  presumption  of  law,  and  may  be  drawn  by  the  court  without  submission  to 
the  jury. 

Thus  if  a  loan  by  a  corporation  would  be  valid  if  made  from  one  fund,  bat  in- 
valid if  made  from  another,  the  presumption  is  that  it  was  made  from  the  former. 
Farmers'  Loan  &  Trust  Co.  v.  Clowes,  3  N.  Y.  470.  Or  if  the  acquiring,  holding  and 
conveying  of  real  property  would  be  valid  under  some  circumstances  or  for  some 
purposes,  but  not  otherwise,  the  presumption  is  that  it  was  valid.  Farmers'  Loan  <k 
Trust  Co.  v.  Curtis,  7  N.  Y.  466;  Chautauque  Co.  Bank  v.  Risley,  19  N.  Y.  369;  De- 
Groff  v.  Am.  Linen  Thread  Co.  21  N.  Y.  124,  rev'g  24  Barb.  875. 

8  Howard  v.  Boorman,  17  Wise.  459. 

9  Cases  cited  in  last  note  but  one.     And  these  presumptions  are  applied  to  foreign 
corporations.     N.  Y.  Floating  Derrick  Co.  v.  N.  J.  Oil  Co.  3  Duer,  648;    Star  Brick 
Co.  v.  Ridsdale,  86  "N.  J.  L.  229. 

3 


34  ACTIONS   BY  AND   AGAINST  CORPORATIONS. 

impeaching  the  transaction,  to  show  that  the  circumstances  giv- 
ing validity  to  the  exercise  of  the  power  did  .not  exist.1  This 
rule,  however,  relates  to  the  legality  of  the  power,  and  does  not 
.supply  the  want  of  evidence  that  the  officer  or  agent  who  as- 
sumed to  exercise  the  power  was  authorized  by  the  corporation 
to  do  so.2 

III. — CONTRACTS  BY  A  CORPORATION. 

31.  Implied  Promises.'] — When  a  corporation  acts  within  the 
scope  of  the  legitimate  objects  of  its  institution,  all  parol  con- 
tracts made  by  its  authorized  agents  are  express  promises  by  the 
corporation ;  and  upon  all  duties  imposed  upon  them  by  law,  and 
upon  all  benefits  conferred  at  their  request,  the  law  implies  the 
same  promises  of  the  principal  as  in  the  case  of  an  individual.3 
To  sustain  an  action  for  services,  or  goods  sold,  or  the  like,  it  is 
not  necessary  to  show  that  the  directors,  at  a  formal  meeting, 
authorized  or  ratified  the  employment  or  order.  It  is  enough  to 
show  either,  1.  that  the  officer  or  agent  who  made  the  engagement 
did  so  within  the  scope  of  his  duty  or  authority ;  or,  2.  that  the 
engagement  was  performed  with  the  knowledge  of  the  directors, 
and  they  received  its  benefit  without  objection.4  The  law  raises 
the  same  presumption  as  to  assent,  &c.,  against  corporations  as 
against  natural  persons ;  and  in  such  a  case,  where  the  corporation 
have  enjoyed  performance,  they  will  be  presumed  to  have  ratified 
the  contract,  and  will  not  be  permitted  to  deny  the  authority  of 
the  agent.5 

32.  Simple  Contracts  in  Writing.'] — The  unsealed  contracts  of 
corporations  are  often  made  by  the  adoption  of  a  resolution,  com- 
municated to  and  accepted  by  the  other  party.  A  contract  in 
this  form  is  a  sufficient  memorandum  to  satisfy  the  statute  of 
frauds  as  against  the  corporation,  if  the  minutes  of  the  corpora- 
tion, signed  by  the  clerk,  contain,  either  expressly  or  in  part  by 
reference  to  other  documents,  the  terms  agreed  on.6  Where  the 
contract  is  made  in  such  a  mode,  the  writing  should  bo  deemed 
within  the  rule  requiring  it  to  be  produced  as  the  best  evidence  of 
its  contents,  or  accounted  for ; 7  and  the  rule  forbidding  parol  evi- 
dence to  vary  a  writing,  as  between  the  parties  to  it,  applies. 


1  And  the  better  opinion  is,  that  if  the  contract  is  only  collaterally  in  question, 
»nd  the  party  impeaching  it  is  not  the  one  sought  to  be  charged  on  it,  he  caunot  do 
even  that.  Farmers',  <fec.  Bank  v.  Detroit,  <fcc.  R.  R.  Co.  17  Wise.  372,  DIXON,  J. 

8  See  Partridge  v.  Badger,  25  Barb.  146. 

3  Dunn  v.  Rector  of  St.  Andrews,  14  Johns.  118. 

4  Hooker  v.  Eagle  Bank,  <fcc.  30  N.  Y.  86,  and  cases  cited. 
•  Fister  v.  La  Rue,  15  Barb.  323. 

'  Argus  v.  Mayor,  <kc.  of  Albany,  65  N.  Y.  495,  affi'g,  iu  effect,  7  Lans.  264  ;  and 
Bee  22  Ohio  St.  451. 

1  Whitford  v.  Tutin,  10  Bing.  395.  Contra,  where  the  proposal  does  not  contain 
all  the  terms,  and  is  modified  on  a  parol  acceptance.  Pacific  Works  v.  Newhall,  84 
Conn.  67. 


CONTRACTS  BY  A  CORPORATION.  35 

Where  a  formal  instrument  is  executed  without  seal,  such  as  /  / 1 
an  assignment,  or  a  note  or  bill,  there  must  be  some  evidence  of  | , 
the  authority  of  the  person  executing  it.  To  prove  a  sale  which 
is  not  a  transaction  in  the  ordinary  course  of  business  of  the  cor- 
poration— e.  g.,  an  executory  contract  to  sell  bonds  of  the  com- 
pany,1 or  to  cancel  a  mortgage  without  consideration,2  the  author- 
ity of  the  officers  will  not  be  presumed.  A  power  of  attorney 
from  the  president  is  not  enough.  The  president's  authority 
must  be  shown.  If  there  is  a  board  of  directors,  authority  from 
them  is  presumptively  enough.3  If,  however,  the  statute  pro- 
vides that  specified  officers  shall  sign  the  contracts  of  the  cor- 
poration, their  signatures  are  presumptive  evidence  that  such 
contract  is  the  act  of  the  corporation.4 

33.  Sealed  Instruments.] — An  instrument  executed  under  the 
seal  of  a  corporation  may  be  put  in  evidence  without  further 
proof,  if  it  has  been  proved  or  acknowledged  as  required  for  a 
deed  of  lands  to  be  recorded ;  and  if  it  has  been  also  recorded, 
under  the  statute,  the  record  or  a  certified  copy,  according  to  the 
statute,  is  equally  admissible  as  the  original.5  This,  as  in  the 
case  of  a  deed  of  an  individual,  raises  a  legal  presumption  that 
the  seal  was  the  seal  of  the  corporation,  and  that  it  was  affixed 
by  its  authority,6  even  where  the  law  requires  express  authority 
from  the  corporation  or  board  to  sanction  the  grant  in  question. 
But  this  presumption  is  rebutted  by  an  admission  or  proof  that 
the  act  was  not  authorized  nor  ratified  by  the  board,  and  in  such 
case  it  is  void,7  unless  the  use  of  a  seal  was  unnecessary  and  super- 
fluous. If  the  instrument  is  not  thus  authenticated,  the  seal 
(unless  it  be  that  of  a  domestic  municipal  corporation  which  the 
court  mav  judicially  notice) 8  must  be  proved  to  be  genuine,  by 
calling  either  one  who  saw  it  affixed,  or  equally  well  any  one 
who  knows  the  seal.9  But  the  testimony  of  a  witness  that  he  had 
been  told  by  corporate  officers  that  it  was  the  seal  of  the  corpora- 
tion, is  not  enough.10 

The  seal  being  thus  proved,  upon  a  corporate  deed  regular  on 
its  face,  and  apparently  executed  in  due  form,  the  law  presumes 

1  Ang.  &  A.  on  C.  §§  297-299 ;  Titus  v.  Cairo,  Ac.  R.  R.  Co.  37  N.  J.  L.  102. 
1  Smith  v.  Smith,  117  Mass.  72. 

*  See  Hoyt  v.  Thompson,  5  N.  Y.  320 ;  3  Bosw.  267,  285.     But  the  power  is  now 
often  presumed  in  favor  of  third  persons  dealing  in  good  faith. 

4  BRONSOX,  J.,  Gillett  v.  Campbell,  1  Den.  520. 

6  Lovett  v.  Steam  Mill,  <fec.  Co.  6  Paige,  60 ;  Kelly  v.  Calhonn,  U.  S.  Supm.  Ct 
17  Alb.  L.  J.  55 

•  Id. ;  Chamberlain  v.  Bradley,  101  Mass.  188,  s.  c.  3  Am.  R.  331 ;    Sheehan  T. 
Davis,  17  Ohio  St.  571,  581. 

1  Hoyt  v.  Thompson,  5  N.  Y.  385 ;  19  Id.  207  ;  Eureka  Co.  v.  Bailey,  11  Wall.  491. 

8  The  court  does  not  judicially  notice  the  seal  of  a  foreign  corporation.  Ang.  A 
A.  on  Corp.  201,  §  216. 

»  Jackson  v.  Pratt,  10  Johns.  381 ;  An<*.  <fe  A.  on  Corp.  200,  §  216;  Moises  v. 
Thornton,  8  T.  R.  307  ;  Brounker  v.'Atkyns,  Skinn.  2,  cited  in  Rose.  N.  P.  146  ;  Finch 
v.  Gridley,  25  Wend.  469. 

10  Moises  v.  Thornton,  above. 


36  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

that  the  deed  was  executed  and  the  seal  affixed  by  competent  au- 
thority from  the  corporation.1  Hence,  alike  where  the  deed 
bears  a  due  certificate  of  acknowledgment,2  &c.,  and  where  the 
seal  is  proved  or  judicially  noticed,8  the  law  presumes  that  the 
deed  was  duly  executed  and  the  seal  affixed  by  a  competent 
authority  in  pursuance  of  whatever  power  the  corporation  has, 
or  maybe  presumed  to  have,4  to  convey;  and  it  is  not  neces- 
sary for  the  party  claiming  under  the  instrument  to  produce 
the  resolution  or  by-law  giving  authority,  but  the  burden  is  on 
the  party  resisting  it  to  show  that  the  officers  signing  were  not 
authorized  to  convey,  or  that  those  having  custody  of  the  seal 
were  not  authorized  to  affix  it.5  If  the  seal  is  an  ordinary  one, 
not  the  distinctive  seal  of  the  particular  corporation,  some  evi- 
dence must  be  adduced  (if  the  seal  is  necessary  to  the  instru- 
ment), that  it  was  used  as  a  corporate  seal,  and  that  the  instru- 
ment was  executed  by  the  proper  officers  by  authority  from  the 
board  or  corporation;6  and  this  will  admit  the  deed.7  A  cor- 
porate seal,  undisputed,  is  prima  facie  evidence  that  the  deed 
is  that  of  the  corporation.®  The  facts  necessary  to  show  au- 
thority on  the  part  of  the  agent  of  execution,  whoever  he  may 
be,  may  always  be  proved  by  extrinsic  evidence,  and  always  by 
parol,  unless  it  appears  that  the  best  evidence  is  in  writing,  or 
the  statute  requires  the  corporation  to  give  written  authority. 
Where  a  conveyance  is  made  by  a  corporation,  the  grantee's  at- 
torney usually  requires  a  certified  copy  of  the  resolution  author- 
izing its  execution,  and  this,  if  preserved,  affords  convenient 
primary  evidence  as  against  the  corporation,  and  secondary  evi- 
dence as  against  others,  of  authority,  where  direct  proof  of 
authority  is  necessary.  Proof  of  the  seal  on  an  instrument,  pro- 
duced by  one  claiming  under  it,  is  sufficient  proof  of  delivery, 
unless  it  appears  that  affixing  the  seal  was  not  intended  as  a  com- 
plete execution.9  The  officer  or  agent  who  signs  on  the  part  of 
the  corporation,  though  expressly  to  "  attest "  the  instrument,  is 
not  deemed  a  subscribing  witness  who  must  be  called,  unless  the 


1  Whitney  v.  Union  Trust  Co.  60  N.  T.  676 ;    Hoyt  v.  Thompson,  5  N.  Y.  320 ; 
Rose.  N.  P.  147,  and  cases  cited. 

2  Johnson  v.  Bush,  3  Barb.  Ch.  239. 

3  2  Dill.  M.  C.  550,  §  450. 

4  Paragraph  30,  above. 

6  Same  authorities.  For  a  stricter  rule,  see  People  ex  rel.  Town  of  Rochester  v. 
Deyoe,  2  Supm.  Ct.  (T.  <fe  C.)  142.  Proof  that  the  seal  was  affixed  by  the  printer  of 
corporate  bonds,  by  direction  of  the  proper  officers,  who  afterward  signed  and  de- 
livered the  bonds,  is  sufficient  Royal  Bank  v.  Grand  Junction  R.  R.  Co.  1  Withr. 
Corp.  Cas.  644.  s.  o.  100  Mass.  414. 

6  Miners'  Ditch  Co.  v.  Zellerbach,  37  CaL  543,  s.  c.  1  Withr.  Corp.  Cas.  250,  284, 
and  cases  cited. 

7  Phillips  v.  Coffee,  17  HI.  154,  and  cases  cited ;  Christie  v.  Gage,  2  Supm.  Ct.  (T. 
A  C.)  344. 

8  St.  John's  Church  v.  Steinmetz,  18  Pa.  St.  273. 
»  Aug.  <fc  A.  on.  Corp.  202,  §  227. 


TORTS  BY  A  CORPORATION.  37 

intent  is  clear  that  he  signed  not  on  the  part  of  the  corporation, 
but  as  an  indifferent  witness.1 

34.  Corporate  Acceptance  of  Deeds,  <&c,~\ — The  acceptance  of 
a  bond  or  deed  to  a  corporation  may  be  presumed  from  the  fact 
that,  after  it  was  submitted  to  the  board  for  approval,  it  was  re- 
tained by  the  corporation,  and  acted  on — as,  for  instance,  in  the 
case  of  a  cashier's  bond,  where  the  cashier  was  permitted  to  enter 
upon  or  continue  in  the  discharge  of  his  duties — and  the  fact 
that  it  was  presented  to  and  approved  by  the  board  may  be 
established  by  parol.2 

35.  Contract  Ambiguous  as  to  Party.~\ — The  act  or  contract 
of  an  agent  of  a  corporation  does  not  derive  its  efficacy  to  bind  or 
to  benefit  the  corporation,  from  professing  on  its  face  to  have 
been  done  in  the  exercise  of  the  agency.3    If  upon  the  face  of  the 
instrument  there  are  indications  suggestive  of  agency, — such  as 
the  addition  of  words  of  office  or  agency  to  the  signature,  or  the 
imprint  of  the  corporate  title  on  the  paper, — parol  evidence  is 
competent  to  show  who  the  parties  intended  should  be  bound  or 
benefited.4    And  even  where  the  contract  bears  no  such  sugges- 
tion on  its  face,  the  rule  as  now  generally  received  is  that  parol 
evidence  is  competent  either  in  favor  of  or  against  the  corpora- 
tion (except,  perhaps,  when  the  instrument  is  a  specialty) ;  but 
that  it  is  not  competent  for  the  purpose  of  exonerating  the 
signer  from  personal  liability  if  the  other  party  to  the  instru- 
ment chooses  to  hold  him  personally  liable,  unless  there  is  evi- 
dence that  the  signer  was  duly  authorized  to  contract  for  the 
corporation,  and  that  credit  was  actually  given  to  the  corporation 
alone.6    If  a  seal  is  not  essential  to  the  validity  of  the  act,  the 
authority  of  the  agent  may  be  proved  by  oral  evidence,7  or  by 
proof  of  ratification,  e.  g.,  the  payment  of  an  instalment  pursuant 
to  it.8 

IY. — TORTS  BY  A  CORPORATION. 

36.  false  Representations  T>y  Meeting.] — Fraudulent  repre- 
sentations by  the  corporate  body  may  be  proved  by  evidence  that 
an  official  report,  containing  material  misrepresentations  of  fact 
as  to  the  affairs  of  the  corporation,  was  presented  to  a  public  and 
general  meeting  of  the  corporators,  by  a  board  or  committee  act- 
ing in  the  course  of  its  duty,  and  eitner  that  it  was  tacitly  sanc- 

1  Compare  Deffell  v.  White,  L.  R.  2  C.  P.  144;  Kelly  v.  Calhoun,  U.  S.  Supm.  Ct 
17  Alb.  L.  J.  65. 

s  Bank  of  U.  S.  v.  Dandridge,  12  Wheat.  64;  Graves  v.  Lebanon  Nat.  Bank,  10 
Bush  (Ky.)  23,  s.  o.  19  Am.  R.  60,  and  cases  cited. 

a  Mech.  Bk.  v.  Bank  of  Columbia,  6  Wheat.  826. 

4  Id. ;  Vater  v.  Lewis,  86  Ind.  288,  and  cases  cited. 

8  2  Tayl.  Ev.  §  1054;  Briggs  v.  Partridge,  64  N.  Y.  367. 

6  See  An<*.  <fe  A.  on  Corp.  299,  §  294. 

7  See  paragraph  29,  above,  and  48,  below. 

8  Eureka  Company  v.  Bailey  Company,  11  "Wall.  491. 


38  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

tioned  by  the  meeting  and  subsequently  circulated  by  the  direct- 
ors for  the  benefit  of  the  company,1  or  that  it  was  expressly 
adopted  by  the  meeting  and  put  forth  to  the  public,  even 
although  no  vote  to  publish  it  were  passed.2  But  the  mere  ac- 
ceptance of  a  false  communication  from  an  officer  or  servant,8  or 
a  vote  "  accepting  "  a  report  of  a  committee,  does  not  alone  make 
the  statements  in  it  representations,  or  even  admissions,  compe- 
tent against  the  corporation.4 

37.  Frauds  by  Directors,  c&c.~\ — It  has  been  held  that  fraud 
by  the  board  of  directors,  or  by  the  managing  agent,  may  be 
proved  under  an  allegation  of  fraud  committed  by  the  corpora- 
tion, if  the  act  be  such  as  to  bind  the  company.5    False  repre- 
sentations in  correspondence  or  otherwise  by  officers  or  agents  of 
a  corporation,  if  brought  home  to  the  corporation  as  its  act,  will 
sustain  the  allegation,  and  the  large  latitude  given  to  the  admis- 
sion of  evidence  bearing  on  a  question  of  fraud  is  allowable 
against  a  corporation  as  well  as  against  individuals.6 

38.  Liability  for  Wrongs  ~by  Officers  or  Agents7\ — To  render  a 
corporation  liable  for  a  tort  committed  by  its  officers  or  agents, 
it  is  not  necessary  to  show  that  the  corporation  was  authorized  to 
do  the  act,7  but  it  must  be  shown  that  he  by  whom  it  was  done 
was  at  the  time  engaged  in  the  business  of  his  office  or  agency,  and 
acting  within  its  scope.    In  these  respects,  the  evidence  to  charge  a 
corporation  with  a  fraud  of  its  agent  or  officer  depends  on  the  gen- 
eral principles  of  agency.8    If  the  act  is  such  that  had  it  been 
done  without  malice,  the  corporation  would  have  been  bound  by 
it  (as  in  case  of  a  prosecution  instituted),  or  would  have  been  lia- 
ble for  injury  resulting  (as  in  case  of  a  carrier's  breach  of  duty), 
it  is  no  defense  for  the  corporation  to  show  that  it  was  the  willful 
and  malicious  act  of  the  agent  or  servant.9 

Y. — MEETINGS  AND  BY-LAWS. 

39.  Evidence  of  Regularity  of  Meetings^ — "WTien  the  books 
are  competent,  an  entry  in  the  usual  form,  that  after  due  notice 10 

1  Nat.  Exch.  Bk.  v.  Drew,  2  Macq.  H.  L.  103,  s.  c.  32  Eng.  L.  &  Eq.  1 ;  New 
Brunswick,  Ac.  Co.  9  Ho.  of  L.  Cas.  711. 

4  Green's  Brice's  Ultra  V.  245,  citing  Re  Nat.  Patent  Steam  Fuel  Co.  4  Drew.  629. 

3  Burns  v.  Pennell,  2  H.  L.  Cas.  497. 

4  1  Dill.  M.  C.  357,  §  242. 

6  Glamorganshire  Co.  v.  Irvine,  4  F.  <fc  F  947 ;  Barwick  v.  English  Joint  Stock 
Bank,  L.  R.  2  Ex.  (Ch.)  259;  Mackay  v.  Com.  Bk,  L.  R.  5  C.  P.  394,  8.  P.  King  v. 
Fitch,  2  Abb.  Ct.  App.  Dec.  608  ;  and  Fee  21  N.  Y.  238. 

6  See  Butler  v.  Watkins,  13  Wall.  464  ;  Marigny  v.  Union  Bank,  5  Rob.  (La.)  354; 
Upton  v.  Englehardt,  3  Biss.  343. 

1  N.  Y.  <fc  New  Haven  R.  R.  Co.  v.  Schuyler,  34  N.  Y.  30,  affi'g  38  Barb.  534. 

8  Id. ;  Hunter  v.  Hudson  River  Iron  Co.  20  Barb.  507 ;  and  see  46  N.  Y.  23. 

9  AVeed  v.   Panama  R.  R.  Co.  17  N.  Y.  362,  affi'g  6  Duer,  196,  and  cases  cited; 
Green's  Brice's  Ultra  V.  266,  nn.  *,  f.     Compare  Ang.  <fe  A.  Corp.  §  388;  1  Redf, 
Rw.  533,  and  Rounds  v.  Delaware,  <fec.  Co.  64  N.  Y.  133. 

10  The  principle  that  in  certain  cases  the  proceedings  of  a  meeting  are  not  valid 
without  due  notice  of  the  meeting,  is  confined  to  meetings  of  the  corporate  body,  aud 


MEETINGS  AND  BY-LAWS.  39 

the  members  met,  imports  that  the  statutory  quorum  was  pres- 
ent ; *  and  from  a  record  stating  a  proceeding,  but  silent  as  to  the 
mode  of  it,  the  law  presumes  that  the  legal  mode  was  pursued.2 
It  has  generally  been  held  that  to  prove  the  action  of  a  board  or 
committee,  there  should  be  evidence  that  there  was  a  meeting  of 
the  committee,  and  that  those  who  signed  the  report  were  to- 
gether when  they  signed  it,  or  that  the  absent  members  had  no- 
tice of  the  meeting,  or  an  opportunity  to  be  present ; 3  but  in  the 
case  of  private  corporations  this  rule  is  more  or  less  relaxed, 
according  to  the  common  usages  of  corporate  business  within  the 
jurisdiction.4 

40.  Acts  J)y  Parol.~\ — The  acts  of  a  private  corporation,  or  of 
its  board  or  committee,  may  generally  be  proved  by  parol  testi- 
mony of  a  witness,5  even  where  the  statute-  requires  a  fair  and 
regular  record  of  proceedings  to  be  kept,6  or  declares  the  books 
to  be  evidence,  if  it  does  not  declare  them  to  be  exclusive  evi- 
dence of  the  proceedings,7  for  acts  even  so  formal  as  a  by-law  or 
regulation  may  be  adopted  without  written  evidence  of  a  vote,8 
and  when  so  adopted  they  may  be  proved  by  direct  evidence,  or 
inferred  from  circumstances,  even  if  there  be  written  records  of 
other  acts ; 9  and  the  fact  that  no  record  was  made  of  the  act  in 
question  may  be  proved  by  calling  the  keeper  of  the  record,  with- 
out producing  or  accounting  for  the  book.10 


does  not  extend  to  meetings  of  directors  and  committees.  Samuel  v.  Holladay, 
Woolw.  C.  C.  400,  s.  o.  1  Withr.  Corp.  Cas.  145.  And  due  notice  of  a  meeting  of  the 
corporators,  if  not  in  issue,  may  be  presumed,  against  the  corporation  and  those 
claiming  under  them.  Cobleigh  v.  Young,  15  N.  H.  493.  For  requisites  of  proof  of 
notice,  where  the  action  of  the  meeting  is  directly  and  not  collaterally  in  question, 
see  Green's  Slice's  Ultra  V.  350-355 ;  People  v.  Bacheler,  22  N.  Y.  128,  affi'g  28 
Barb.  310;  Atlantic  Fire  Ins.  Co.  v.  Sanders,  36  N.  H.  269  ;  Clark  v.  Wardwell,  55 
Me.  61. 

1  Commonwealth  v.  Woelper,  3  Serg.  &  R.  32 ;  Grays  v.  Turnpike  Co.  4  Rand. 
578 ;  and  see  8  Allen,  217;  15  N.  H.  502. 

8  Hathaway  v.  Addison,  48  Me.  440;  and  see  2  B.  Monr.  177. 

»  See  City  of  Troy  v.  Winters,  2  Hun,  63. 

4  See  Re  Bouelli's  Telegraph  Co.,  L.  R.  12  Eq.  246 ;  Bradstreet  v.  Bank  of  Royal- 
ton,  42  Vt.  128,  cited  in  Field  on  Corp.  256,  §  237,  n.;  Edgerly  v.  Emerson,  28  N.  H.  566. 

8  Bk.  of  Lyons  v.  Demmon.  Hill  <fe  D.  Supp.  398  ;  Am.  Ins.  Co.  v.  Oakley,  9  Paige, 
496;  Partridge  v.  Badger,  25  Barb.  146,  and  casea  cited.  See  also  on  this  subject, 
31  How.  St.  Tr.  673,  cited  in  1  Phill.  Ev.  £91 ;  R.  v.  Hunt,  3  B.  &  Aid.  566. 

«  Bank  of  U.  S.  v.  Dandridcre,  12  Wheat.  64,  STORY,  J. 

7  Inglis  v.  Great  N.  Rw.  Co.  16  Eng.  L.  <fc  Eq.  55,  s.  c.  1  McQ.  H.  L.  112,  119, 
Ld.  ST.  LEONARDS;  Magill  v.  Kauffman,  4  Serg.  <fe  R.  317;  Ang.  &  A.  Corp.  159, 
§  186;  Waters  v.  Gilbert,  2  Cush.  31.     Contra,  in  case  of  a  municipal  corporation, 
Gilbert  v.  City  of  New  Haven,  40  Conn.  102. 

8  See  paragraphs  56-58. 

*  Lockwood  v.  Mechanics',  Ac.  Bk.  9  R.  I.  808,  s.  c.  11  Am.  R.  263,  and  cases 
cited;  U.  S.  Bank  V.  Dandridge,  12  Wheat.  64.  Where  there  are  no  books  to  resort 
to,  clear  and  satisfactory  evidence  of  another  sort  should  be  required.  SHAW,  Ch.  J., 
Central  Turnpike  Corp.  v.  Valentine,  10  Pick.  142. 

10  Smith  v.  Richards,  29  Conn.  232,  243.  Otherwise,  perhaps,  where  the  evidence 
is  offered  by  the  corporation.  "  We  must  take  notice  of  a  usage  so  general  as  that  of  a 
church  to  keep  a  record."  SHAW,  Ch.  J.,  Sawyer  v.  Baldwin,  1  Pick.  492 ;  and  see 
Narragansett  Bank  v.  Atlantic  Silk  Co.  3  Mete.  287. 


40  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

41.  Pleading  By-laws,  &c.~\ — The  courts  refuse  to  notice  ju- 
dicially tlie  by-laws  of  a  private  corporation,1  and  under  the  new 
practice  they  should  be  pleaded,  whenever  directly  in  question, 
as  the  foundation  of  an  action  or  defense.2     Nor  do  the  courts, 
unless  it  be  those  of  the  municipality,  judicially  notice  the  ordi- 
nances of  a  municipal  corporation,  if  not  directed  by  law  to  do  so. 
Therefore,  such  ordinances,  when  sought  to  be  enforced  by  ac- 
tion, or  when  set  up  by  the  defendant  as  a  protection,  should  be 
set  out  in  the  pleading.     It  is  not  sufficient  that  they  be  referred 
to  generally  by  the  title  or  sections.8 

42.  Proof  of  J3y-laws.~] — By-laws  or  ordinances  of  a  munici- 
pal corporation  will  be  usually  proved  pursuant  to  statute,  by 
producing  the  volume  in  which  they  are  officially  published,  or 
by  a  certified  copy.4    Where  they  are  proved  by  production  of 
the  minutes  of  the  common  council,  the  mayor's  approval  must 
be  also  shown.5    By-laws  adopted  by  other  than  municipal  corpo- 
rations are  valid,  although  no  written  record  of  the  vote  of  adop- 
tion was  made ;  and  hence  they  may  be  proved  by  production  of 
the  original  book  or  paper,  with  indirect  evidence  of  adoption, 
such  as  that  they  have  been  handed  down  from  officers  to  succes- 
sors, and  always  acted  on  as  the  rule  of  the  corporation.6    When 
collaterally  relevant,  parol  proof  is  usually  allowed,  without  pro- 
duction of  the  written  form,  especially  if  no  question  is  made  as 
to  the  terms  of  the  writing ;  and  juries  have  been  allowed  to 
infer  the  existence  of  a  supposed  by-law,  or  the  repeal  of  an  act- 
ual one,  from  long  usage.7 

YI. — AUTHORITY  OF  OFFICERS,  AGENTS  AND  MEMBERS. 

43.  Evidence  of  Appointment  of  Officers   and  Agents."] — 
Where  the  title  to  office  or  agency  is  involved  only  as  incidental 
to  the  right  or  liability  of  the  corporation  growing  out  of  the 
acts  of  the  officer  or  agent,  it  may  be  proved  not  only  by  the  cor- 
porate record  of  election,  if  any,  but  equally  well  by  parol  testi- 
mony, either  going  directly  to  the  fact  of  election,  or  showing 
that  the  person  in  question  acted  as  such  and  was  generally  re- 
puted so  to  be.     Proof  of  such  facts  by  the  adverse  party  throws 
npon  the  corporation  the  burden  of  disproving  the  alleged  au- 
thority.8   General  reputation  is  ilot  enough  alone,  except  perhaps 

1  Youngs  v.  Ransom,  31  Barb.  49. 

*  Compare  Atlantic  Fire  Ins.  Co.  y.  Sanders,  36  N.  H.  252. 
J  1  Dill.  M.  C.  167,  and  cases  cited;  436,  §  346. 

4  N.  Y.  Code  of  Civ.  Pro.  §  941  ;    Howe'll  v.  Ruggles,  6  N.  Y.  444;    1  E.  D. 
Smith,  398 ;  Porter  v.  Waring,  2  Abb.  New  Cas.  230. 

*  Kennedy  v.  Newman,  1  SSandf.  1 87. 

'  Union  Bank  v.  Ridgeley,  1  Har.  &  G.  824. 

7  Ang.  <fc  A.  Corp.  353,  §§  328,  329  ;  p.  894,  §  868. 

8  Pusey  v.  N.  J.  K.  R.  Co.  14  Abb.  Pr.  N.  S.  441.     In  the  absence  of  any  statute 
making  record  evidence,  a  witness  having  personal  knowledge  may  testify  as  to  who 
were  the  stockholders  at  a  given  time.     Tyng  v.  U.  S.  Submarine,  «fec.  Co.  1  Hun, 
161. 


AUTHORITY  OF  OFFICERS,  AGENTS'  AND  MEMBERS.  41 

in  case  of  a  public  officer.1  But  with  evidence  that  the  corpora- 
tion had  held  him  out  as  its  officer,  or  permitted  him  to  assume 
the  office  without  objection,  or  had  ratified  his  acts  as  such,2  it  is 
sufficient  prima  facie  evidence  ;  and  slight  evidence  is  allowed 
in  the  case  of  subordinate  officers  and  servants.3 

Evidence  that  officers  acting  as  such,  and  recognized  by  the 
corporation  or  board,  had  no  regular  or  valid  title  to  the  office, 
does  not  avail.  Even  when  the  question  is  of  their  right  to  sue 
in  the  name  of  the  corporation,  defendant  cannot  sustain  an  ob- 
jection to  their  right  of  recovery,  on  the  ground  that  they  are  not 
such  officers,  de  jure,  without  evidence  that  the  State  has  pro- 
ceeded to  a  judgment  of  ouster  against  them.4 

44.  Evidence  of  Express  Authority. ~\ — The  power  of  an  agent, 
for  whatever  purpose,  may  be  proved  by  a  vote  or  resolution 
without  the  seal.5    The  familiar  rule  by  which  a  sealed  power  is 
required  to  authorize  an  agent  to  execute  a  sealed  instrument, 
does  not  apply  to  a  power  conferred  by  a  corporate  vote. 

45.  Implied  scope  of  Authority.'] — Acts  done  by  the  directors, 
which  required  the  sanction  of  a  meeting  of  the  corporation,  may 
be  sustained  by  proof  of  lapse  of  time  and  no  dissent  on  the  part 
of  the  corporation,  or  from  their  not  producing  the  record  of  the 
proceedings  had  at  the  meeting  where  action  should  have  been 
taken.6    Upon  similar  principles,  acts  of  an  officer  or  agent  may 
be  sustained  by  proof  that  they  are  such  as  he  has  usually  and 
customarily  performed.     It  is  a  general  principle,  applicable  to 
open  and  ordinary  acts  in  the  course  of  the  corporate  business, 

1  NELSON,  J.,  Clark  v.  Farmers'  Woolen  Manuf.  Co.  15  Wend.  256  ;  Litchfield  Iron 
Co.  v.  Bennett,  7  Cow.  234.  Where  the  authority  of  an  officer  of  a  public  corporation 
comes  incidentally  in  question  in  an  action  in  which  he  is  not  a  party,  it  is  sufficient 
to  show  that  he  was  an  acting  officer,  and  the  regularity  of  his  appointment  or  elec- 
tion cannot  be  made  a  question.  Proof  that  he  is  an  acting  officer  is  prima  facie 
evidence  of  his  election  or  appointment,  as  well  as  of  his  having  duly  qualified.  But 
if  proof  of  a  due  election  or  appointment  is  alone  relied  on,  such  election  or  appoint- 
ment must  be  legally  established.  1  Dill.  M.  C.  295,  note,  and  cases  cited 

*  Thus  the  authority  of  an  officer  or  agent  to  draw  bills,  may  be  proved  by  show- 
ing a  report  to  the  board,  adopted  by  it,  containing  a  statement  of  the  drafts.     Part- 
ridge v.  Badger,  25  Barb.  173. 

*  Thus  it  is  sufficient  proof  of  the  employment  of  the  plaintiff  as  engineer  of  a  cor- 
poration, to  show  that  he  was  recognized  and  consulted  by  the  officers  of  the  com- 
pany as  its  agent,  and  that  his  plans,  <fcc.  were  accepted  nnd  acted  upon.     2  GreenL 
Ev.  13th  ed.  87,  note,  citing  Moline  Water  Power,  <fec.  Co.  v.  Nichols,  26  111.  90. 

0  So  the  presence  of  a  servant  on  a  steamer  is  some  evidence  of  his  employment 
there.  Svenson  v.  Pacific  Mail  Steamship  Co.  57  N.  Y.  108.  The  dress  of  a  railroad 
brakeman  indicates  him  character  as  such.  Hughes  v.  N.  Y.  <fe  N.  H.  K.  R.  Co.  36 
Super.  Ct.  (J.  <fe  S.)  222.  Appearance  of  clerk  behind  desk  is  some  evidence  of  agency. 
Leslie  v.  Knickerbocker  Ins.  Co.  63  N.  Y.  27,  affi'g  2  Hun,  616.  Person  at  work  on 
locomotive,  with  his  coat  off,  presumed  a  servant  of  the  company.  McCoun  v.  N.  Y. 
Central,  66  Barb.  838. 

*  Trustees  of  Vernon  Soc.  v.  Hills,  6  Cow.  23  ;   All  Saints   Church  v.  Lovett,  1 
Hall,  198. 

*  Green's  Brice's  Ultra  V.  365,  n.  *,  and  cases  cited.     For  the  rule,  that  one  deal- 
ing with  an  officer  may  be  charged  with  notice  of  limits  of  authority  in  the  by-lawa, 
<tc.  see  Dabney  v.  Stevens,  10  Abb.  Pr.  N.  S.  39,  s.  c.  2  Sweeny,  415. 

*  1  Redf.  on  Rw.  600  (3). 


42  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

that  a  general  agency  is  defined,  not  by  the  authority  which  the 
agent  or  officer  receives  from  his  principal,  but  by  that  which  the 
latter  allows  the  former  habitually  to  assume  and  exercise.1  And 
this  principle  applies  to  the  officer  of  a  municipal  corporation, 
whose  duties  are  not  defined  by  law,  at  least  so  far  as  to  throw  on 
the  city  the  burden  of  disproving  authority.8  Hence  authority 
from  the  corporation  for  an  act  of  its  officer  may  be  proved  by 
showing  that  he  had  openly  exercised  the  power,  and  by  showing 
either  corporate  acts  from  which  it  must  be  inferred  that  the  cor- 
poration or  the  directors,  as  the  case  may  be,  must  have  contem- 
plated the  legal  existence  of  the  necessary  delegated  authority  for 
the  purpose,3  or  that,  with  knowledge  of  the  act,  they  affirmatively 
ratified  it  or  tacitly  acquiesced  in  it.  Especially  in  respect  to  sucn 
of  the  ordinary  powers  of  business  corporations  as  are  by  common 
usage,  if  not  of  necessity,  exercised  by  means  of  officers  and 
agents — such  as  the  implied  power  of  a  trading  company  to  make 
bills  and  notes — the  law  presumes,  in  the  absence  of  evidence  to 
the  contrary,  that  general  authority  to  do  such  acts,  when  the 
exigencies  of  the  company  require,  has  been  duly  vested  in  the 
person  who  has  been  held  out  as  their  agent  and  allowed  to  do 
such  acts.4  And  the  jury  may  presume  the  authority  in  such 
case,  for  an  act  done  openly  in  the  usual  course  of  business  at  the 
office  of  the  company,  without  evidence  of  actual  knowledge  on 
the  part  of  the  company  or  directors,  or  of  express  ratification ; 5 
or,  where  knowledge  and  acquiescence  is  shown,  they  may  pre- 
sume the  authority  from  the  open  exercise  of  substantially  similar 
powers — for  example,  they  may  presume  authority  to  buy  gold 
from  the  usual  buying  of  exchange.6 

46.  Authority  implied  in  Title  of  Office.] — In  the  absence  of 
any  other  evidence  of  authority,  the  law  presumes  certain  limits 
as  marking  the  scope  of  the  authority  of  various  officers,  varying 
both  with  the  character  of  the  corporation,  and  the  public  and 
general  usages  of  corporate  business  within  the  jurisdiction.  It 
must  suffice  here  to  say  that  it  is  now  generally  agreed  that  in  the 
absence  of  any  statute  to  the  contrary,  the  president,  together 
with  the  secretary  or  cashier,  are  presumed,  in  favor  of  third  per- 
sons purchasing  in  good  faith  and  for  value,  to  have  power  to  con- 
vey property  of  the  corporation  in  its  name,  in  the  ordinary  course 
of  its  business.  Other  officers,  except  the  board  of  directors,  have 
not  this  power.  The  president  has  presumable  authority  to  direct 

i       '  Bridenbecker  v.  Lowell,  32  Barb.  9,  18,  ALLEN,  J, 
8  Hall  v.  City  of  Buffalo,  2  Abb.  Ct.  App.  Dec.  301.' 

3  Olcott  v.  Tioga  R.  R.  Co.  27  N.  Y.  646,  559,  and  cases  cited. 

4  Narragansett  B'k  v.  Atlantic  Silk  Co.  3  Mete.  289,  SHAW,  Ch  J.    So  the  authority 
of  an  agent  to  disseize  so  as  to  acquire  an  adverse  possession  for  the  corporation,  and 
the  acceptance  of  his  act,  may  be  proved  by  the  acts  and  conduct  of  the  corporation, 
whether  manifested  by  it  collectively  or  through  its  officers,  agents,  tenants,  <fcc.   Ang. 
&  A.  on  Corp.  159,  §  186. 

6  Conover  v.  Mut,  Ins.  Co.  1  N.  Y.  292.     Contra,  1  Redf.  on  Rw.  590. 
«  Merchants'  Bank  v.  State  Bank,  10  Wall.  104. 


ADMISSIONS,  DECLARATIONS,  AND  NOTICE.  43 

a  suit  to  be  brought ; :  and  so  lias  the  treasurer  or  cashier,  upon 
things  in  action  standing  in  his  name  as  such/  or  intrusted  to  his 
management  in  the  ordinary  course  of  business.3  The  vice-presi- 
dent's authority  needs  some  evidence  of  usage  or  other  sanction.4 
A  clerk  acting  as  an  officer,  in  the  officer's  absence,  is  hot  presumed 
to  have  any  other  powers  than  necessary  for  the  usual  and  ordi- 
nary business  in  his  temporary  service.5  The  powers  of  superin- 
tendents and  managing  agents  depend  too  much  upon  special  usages 
to  be  here  discussed.6  A  "  financial  agent"  may  be  presumed  em- 
powered to  negotiate  a  loan,  but  not  to  state  an  account.7 

47.  Testimony  of  Officer  or  Agent.'] — The  declarations  of  the 
officer-or  agent  cannot  suffice  to  show  the  existence  or  scope  of  his 
authority,8  but  he  may  be  called  as  a  witness  to  prove  it.  If  implied 
authority  is  essential  to  the  cause  of  action,  he  should  be  required 
to  state  the  facts  relied  on  as  raising  implied  authority,  and  should 
not  be  asked  whether  or  not  he  nad  authority  to  do  the  act  in 
question,  for  this  is  asking  for  a  conclusion.9    But  to  disprove  al- 
leged express  parol  authority,  the  testimony  of  the  president  that 
none  was  given,  is  competent.10 

48.  Ratification."] — Ratification  by  the  corporation  or  its  offi- 
cers may  be  proved  or  presumed  in  the  same  manner  as  in  case 
of  agencies  for  natural  persons.     It  may  be  inferred  from  in- 
formal acquiescence  merely,  after  notice  of  the  facts.11    Proof  of 
actual  intent  to  ratify  is  not  essential.12     And  an  express  ratifica- 
tion is  competent,  although  not  communicated.13    But  the  ratifica- 
tion may  be  rebutted  by  evidence  either  of  actual  mistake  or  of 
incomplete  knowledge  of  the  facts.14 

YII.  ADMISSIONS,  DECLARATIONS,  AND  NOTICE. 

49.  Admissions  and  Declarations  of  Members.'] — The  admis- 
sions and  declarations  of  a  member  of  a  corporation,  even  if  made 
at  a  corporate  meeting,  are  not  competent  evidence  against  the 

1  American  Ins.  Co.  v.  Oakley,  9  Paige,  496 ;  Mumford  v.  Hawkins,  5  Den.  355. 
8  Howard  v.  Hatch,  29  Barb/297. 

8  Bridenbecker  v.  Lowell,  32  Id.  9.     See  many  of  the  conflicting  cases  on  the  im- 
plied powers  of  cashiers  collected  in  3  Am.  Law  Rev.  612. 

4  Sliimincl  v.  Erie  Railw.  Co.  5  Daly,  396 ;  and  see  5  Bosw.  293. 

5  Totter  v.  Merchants'  Bank,  28  N.  Y.  647. 

'  See  Abb.  Dig.  Corp.  tits.  Agents,  Officers,  President,  <fcc. 

7  Grant  v.  Franco-Egyptian  Bank,  Eng.  Ct  of  App.  1877. 

8  Stringham  v.  St.  Nicholas  Ins.  Co.  4  Abb.  Ct.  App.  Dec.  315. 

•  Prov.  Tool  Co.  v.  U.  S.  Manuf.  Co.  120  Mass.  35  ;    Short  Mountain  Coal  Co.  v. 
Hardy,  114  Id.  197. 

10  Graves  v.  Waite,  59  N.  Y.  161. 

11  Olcott  v.  Tioga  R.  R.  Co.  27  N.  Y.  546,  affi'g  40  Barb.  179 ;  People  ex  rel.  Smilh 
v.  Flagg,  17  N.  Y.  584,  rev'g  16  Barb.  503 ;  Hoyt  v.  Thompson,  19  N.  Y.  207 ;  Abb. 
Dig.  of  Corp.  tit.  Ratification. 

"  Hazard  v.  Spears,  2  Abb.  Ct.  App.  Dec.  353. 

13  Dent  v.  N.  A.  S.  Co.  49  N.  Y.  390. 

14  Owensboro  Savings  Bank  v.  Western  Bank,  4  Law  <t  Eq.  695,  and  cases  cited  ; 
47  N.  Y.  199. 


44  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

corporation,  unless  made  concerning  some  transaction  in  which 
such  member  was  the  authorized  agent  of  the  corporation  ; 1  and 
in  such  case  their  competency  depends  on  the  rules  applicable  to 
the  admissions  of  officers  ana  agents. 

50.  Admissions  and  Declarations  of  Officers  and  Agents  au- 
thorized to  spcakJ] — Evidence  of  declarations  and  admissions  made 
by  officers  and  agents  of  corporations  is  competent  against  the  cor- 
poration in  two  classes  of  cases.     First,  when  the  declarations  were 
made  by  an  officer  or  agent  in  response  to  timely  inquiries  prop- 
erly addressed  to  him,  and  relating  to  matters  under  his  charge, 
in  respect  to  which  he  is  authorized  in  the  usual  course  of  busi- 
ness to  give  information.2    Upon  this  principle,  what  is  said  by 
the  proper  officer  or  agent  to  receive  and  act  on  a  demand  or  com- 
plaint— whether  it  be  the  secretary  or  treasurer  who  signed  a 
money  obligation,  and  to  whom  it  is  presented  for  payment ; 8  or 
the  general  superintendent  or  managing  agent  to  whom  complaint 
is  duly  made  of  a  nuisance  caused  by  the  company's  property,  or 
of  the  conduct  of  its  servants  ; 4  or  by  the  proper  conductor,  bag- 
gage master,  or  station  agent,  on  inquiries  made  with  reasonable 

Sromptitude  for  lost  baggage  or  freight ; 5  or  what  is  said  upon  the 
ke  inquiry  by  a  subordinate  to  whom  the  inquirer  is  referred  for 
information  by  the  principal  officer  of  the  department,6 — is  com- 
petent against  the  corporation.  But  the  officer  or  agent  must  be 
one  having  the  duty  to  perform.  A  communication  by  an  officer 
of  what  others  have  done,  on  an  application  he  could  not  or 
would  not  act  on,  is  not  within  the  rule.7 

51.  Admissions  and  Declarations  made  as  part  of  the  lies 
Gestce.~\ — Again,  the  declarations  and  admissions  of  officers  and 
agents  may  also  be  proved  against  the  corporation  as  part  of  the 
res  gestce,  but  only  when  made  during  the  agency,  and  in  regard  to 
a  transaction  depending  at  the  very  time,  so  as  to  constitute  a  part 
of  the  act.8     They  cannot  be  admitted  on  this  ground,  if  subse- 

1  2  R.  S.  N.  Y.  407,  §  80;  REDFIELD,  in  1  Greenl.  Ev.  13th  ed.  206,  §  175  ;  1 
Phill.  Ev.  487,  note  134;  30  Me.  157. 

8  Thus,  in  a  bank's  action  on  a  note  held  by  it,  an  admission  by  the  president  that 
the  note  had  been  paid,  made  to  the  defendant,  in  consequence  of  an  examination  of 
accounts,  caused  by  the  president's  asking  for  payment  and  the  defendant  insisting 
that  he  had  already  paid,  is  competent  evidence  for  the  defendant,  as  having  been 
made  while  acting  within  the  scope  of  a  bank  president's  ordinary  powers.  Bank  of 
Monroe  v.  Field,  2  Hill,  445,  NELSON,  Cb,  J.  Compare  Horrigan  v.  First  Nat.  Bank, 
6  Reporter,  188. 

3  Pusey  v.  N.  J.  Ac.  R.  R.  Co.  14  Abb.  Pr.  N.  S.  441. 

4  McGenness  v.  Adriatic  Mills,  116  Mass.  177 ;  Malecek  v.  Tower  Grove  R.  Co.  57 
Mo.  17. 

6  Morse  v.  Conn.  Riv.  R.  R.  Co.  6  Gray,  450. 

6  Gott  v.  Dinsmore,  111  Mass.  51. 

'  Bank  of  Grafton  v.  Woodward,  5  N.  H.  301 ;  Soper  v.  Buffalo,  <fcc.  R.  R.  Co.  19 
Barb.  310. 

8  Anderson  v.  Rome,  <tc.  R.  R.  Co.  54  N.  Y.  334,  and  cases  cited.  Compare  Nor- 
wich Transp.  Co.  v.  Flint,  13  "Wall.  3  ;  Baptist  Ch.  of  Brooklyn  v.  Brooklyn  Fire  Ins. 
Co.  28  N.  Y.  153;  Superintendent  of  Cortland  v.  Superintendent  of  Ilerkimer,  44 
N.  Y.  22. 


ADMISSIONS,  DECLARATIONS  AND  NOTICE.  45 

quently  made,  as  a  narrative  of  a  past  act,  even  though  they  relate 
to  the  official  duty  of  the  declarant,  or  were  intended  in  the  inter- 
est of  the  corporation.1  Hence  the  declarations  of  members  of  a 
board  or  committee  as  to  what  the  board  or  committee  have  done, 
are  not  competent.2  It  must  affirmatively  and  explicitly  appear 
that  the  declaration  was  made  at  the  time,  and  not  afterwards,  or 
its  reception  in  evidence  will  be  error.3 

52.  Admissions  and  Declarations  before    incorporation.] — 
"Where  a  corporation  adopts  and  acts  on  the  negotiations  and  in- 
choate contracts  of  the  promoters  who  formed  it,  tneir  acts  and  dec- 
larations, so  far  as  they  would  have  been  competent  against  them- 
selves, are  competent  against  the  corporation.    So  where  a  corpora- 
tion is  formed  by  the  consolidation  of  other  companies,  thereby 
succeeding  to  their  rights,  the  previous  admissions  and  declara- 
tions of  the  previous  corporation  binding  on  itself  in  respect  to  such 
right,  are  competent,  though  slight  evidence  against  the  new  cor- 
poration.4   Such  cases  are  not  regarded  as  falling  within  the  prin- 
ciple applicable  to  assignor's  declarations,  for  there  is  an  identity 
of  interest.5  The  new  organization  is  the  same  actual  entity  under 
a  new  legal  form. 

53.  Notice^\ — Notice  to  a  corporation  can  be  proved  by  show- 
ing notice  given  either,  1,  to  its  officer  or  agent,  who  was  at 
the  time  acting  for  the  corporation  in  the  matter  in  question,  and 
within  the  range  of  his  authority  or  supervision ;  or,  2,  to  one 
whose  duty  it  was  to  receive  and  communicate  such  information 
to  his  principal ;  or,  3,  to  the  board  of  directors,  or  a  previous 
board  ;  °  but  not  to  a  single  director,  unless  he  is  the  one  charged 
with  the  duty  to  be  affected  by  the  notice,  or  acting  in  the  board 
at  the  time,  upon  the  matter  in  question.7    For  the  purpose  of 
proving  such  notice,  evidence  of  the  declarations  and  admissions 
of  the  officer  or  agent  in  question  is  competent,  within  the  lim- 
its previously  stated.8 


1  First  Nat.  Bank  v.  Ocean  Nat.  Bank,  60  N.  Y.  278. 

s  Soper  v.  Buffalo,  <fec.  R.  R.  Co.  above ;  Jex  v.  Board  of  Education,  1  Hun,  157. 
Compare,  however,  as  to  fraud  promoted  by  individual  members,  Marigny  v.  Union 
Bank,  5  Rob.  (La.)  354. 

3  Whitaker  v.  8th  Ave.  R.  R.  Co.  51  N.  Y.  299,  rev'g  5  Robt.  650. 

4  Phil.  «fec.  R.  R.  Co.  v.  Howard,  13  How.  U.  S.  333. 

5  See  ch.  I,  p.  12. 

*  Fulton  Bank  v.  N.  Y.  &  Sharon  Canal  Co.  4  Paige,  127,  s.  p.  34  N.  Y.  80,  84  ; 
Whart.  Ag.  §g  184,  673  ;  Abb.  Dig.  of  Corp.  tit.  Notice.  Where  the  officers  or  agents 
of  a  public  corporation  have  no  power  or  duties  with  respect  to  a  given  matter,  their 
individual  knowledge  or  the  individual  knowledge  of  the  inhabitants  or  voters,  does 
not  bind  or  affect  the  corporation.  The  mayor  is  chief  executive  officer  of  the  city,  and 
notice  to  him  of  a  nuisance  is  sufficient,  when  it  would  not  bo  to  the  clerk,  who  is  only 
a  recording  officer,  not  authorized  to  act  upon  the  notice.  1  Dill.  M.  C.  296,  note. 

7  North  Riv.  Bk.  v.  Aymar,  3  Hill,  262  ;  Bank  of  U.  S.  v.  Davis,  2  Id.  451.    Com- 
pare U.  S.  Ins.  Co.  v.  Shriver,  3  Md.  Ch.  381. 

8  Wilson  v.  McCullough,  23  Pa.  St.  440 ;  Chapman  v.  Erie  Rw.  Co.  55  N.  Y.  679, 
rev'g  1  Supra.  Ct,  (T.  &  C.)  526 ;  Commercial  Bank  v.  Wood,  7  Watts  «t  S.  89. 


46  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

YIII.  BOOKS  AND  PAPERS. 

54.  Corporation  Books  and  Papers  as  evidence.] — The  tradi- 
tional statement  found  in  many  authorities,1  that  corporate  books 
are  not  evidence  against  strangers,  was  not  originally  a  sound 
generalization,  and  is  no  longer  a  safe  guide  in  practice.     Consid- 
ered for  purposes  of  evidence,  the  records  of  a  corporation  are 
chiefly  01  three  classes : 

1.  Statutory  records — or  those  required  by  law  for  the  pur- 
pose of  preserving  exclusively  written  evidence  of  important  acts 
— such  as  subscription  books  for  stock,  registers  of  shareholders, 
annual  reports,  <fec. ;  and  their  quality  as  evidence  depends  largely 
upon  the  statutes  by  which  they  are  required. 

2.  Minutes  of  deliberative  proceedings — which  are  properly 
made  at  the  meetings  of  the  corporation  and  of  boards  and  com- 
mittees— and  the  quality  of  these  as  evidence  depends  on  common- 
law  rules  peculiar  to  the  records  of  bodies  of  corporate  form,  but 
modified  often  by  the  statute  governing  the  corporation. 

3.  Account  books  and  other  books  of  entries  kept  by  the 
officers  or  agents  of  the  corporation,  as  records  of  transactions  in 
the  course  of  their  agency,  such  as  would  be  kept  by  the  agents 
of  an  individual  or  partnership  carrying  on  a  like  business ;  and 
these  account  books  are  subject  to  the  common-law  rules  applica- 
ble generally  to  the  accounts  of  individuals  and  partnerships. 

55.  Statutory  Records.] — The  mere  fact  that  a  statute  requires 
a  record  to  be  made  does  not  make  the  books  the  only  evidence,3 
but  where  the  record  itself  constitutes  the  act — as  in  the  case  of  a 
subscription  for  stock  in  the  commissioners'  books,  or  the  mak- 
ing an  annual  report,  or  the  adoption  of  a  municipal  by-law — the 
fact  to  be  proved,  when  directly  in  issue,  is  the  existence  of  the 
statutory  record ;  and  consequently,  if  the  act  is  competent  to  be 
proved,  between  whatever  parties,  production  of  the  statutory 
record  is  a  competent  mode  of  proof. 

56.  Minutes  of  Proceedings] — "Whenever  the   action  of  a 
deliberative  body — whether  that  of  the  corporation  at  large,  its 
board,  or  a  committee — is  competent  to  be  proved,  either  in  favor 
of  or  against  the  corporation,  its  officers,  members,  or  strangers, 

1  See  1  Greenl.  Ev.  649,  §  493  ;    2  Phill.  Ev.  295,  notes  4  and  343  ;    Rose.  N.  P. 
228,  231;  1  Whart.  Ev.  626,  §  662;  Starkie,  412;  2  Tayl.  Ev.  1519.     The  initial  au- 
thority usually  cited  is  Mayor  of  London  v.  Lynn,  1  H.  Blacks.  214.     The  American, 
and  I  presume  the  present  English  law,  would  now  admit  such  books  as  competent 
towards  showing  that  the  corporation  made  the  demands  of  toll,  but  would  require 
other  evidence  that  the  strangers  had  submitted  to  those  demands,  in  order  to  prove 
the  usage.     In  Owings  v.  Speed,  5  Whart.  420,  it  was  settled  that  the  books  of  a 
corporate  body,  established  by  the  legislature  for  a  public  purpose  —  such  as  trustees 
of  proprietary  lands — are  competent  evidence  of  the  proceedings  of  the  body  there  in 
recorded,  and  ought  to  be  admitted  whenever  those  acts  are  to  be  proved  (MAR- 
SHALL, C.  J.);  and  the  same  principle  is  constantly  applied  not  only  to  the  statutory 
records,  but  also  to  the  deliberative  minutes  of  private  corporations,  within  the  limits 
indicated  in  the  text. 

2  Inglis  v.  Great  N.  Rw.  Co.   16  Eng.  L.  &  Eq.  55,  s.  0.  1  McQ.  H.  L.  112,  119; 
Bank  of  U.  S  v.  Dandridge,  12  Wheat.  70 


BOOKS  AND  PAPERS.  47 

the  contemporaneous  corporate  record  of  their  action  is  compe- 
tent,1 though  not  always  alone  sufficient.  Thus  the  act  of  organ- 
izing may  be  proved  in  favor  of  the  corporation  or  creditors, 
and  against  membere 2  and  strangers,8  by  the  books ;  and  in  an  ac- 
tion between  strangers,  one  claiming  a  professional  degree  may 
prove  it  by  the  books  of  the  college  that  granted  it,4  and  one 
claiming  as  assignee  of  a  corporation  may  prove  the  assignment 
by  the  corporate  books.5  i/So  where  it  is  competent,  in  an  action 
against  a  corporation  for  negligence,  for  it  to  prove  its  own  pre- 
cautions taken  by  the  appointment  of  a  committee,  &c.,  the  books 
are  competent  for  this  purpose.6  It  is  very  commonly  the  case, 
that  the  act  of  a  private  corporation  is  not  competent  unless 
shown  to  have  been  communicated  to  the  other  party,  and  in 
such  case  the  books  are  competent  to  show  the  act,  provided 
other  evidence  of  communication  is  given  to  connect.  The  first 
question  therefore  to  be  determined  is,  whether  the  corporate  act 
is  competent  under  the  issue,  and  between  the  particular  parties ; 
if  so,  the  minutes  may  be  resorted  to  as  evidence  of  it.7 

Of  course,  the  books  of  municipal  corporations  are  competent 
as  evidence  of  the  election  of  their  officers,  and  of  other  corporate 
proceedings  there  recorded,8  and  are  thus  competent  between 
strangers.9 

1  This  is  the  modern  rule  founded  in  reason,  and  essential  to  public  convenience. 
See  cases  cited  under  this  and  following  paragraphs  of  this  chapter,  and  Smith  v. 
Natchez  Steamboat  Co.  2  Miss.  (1  How.)  492;  Rose.  N.  P.  228,  231 ;  Bank  of  U.  S.  v. 
Dandridge,  12  Wheat.  64;  Grant  v.  Henry  Clay  Co.  80  Pa.  St.  208;  Schell  v.  Sec- 
ond Nat.  Bank,  14  Minn.  43  ;  Rayburn  v.  Eldod,  43  Ala.  N.  S.  700.  As  previously 
indicated,  numerous  dicta,  and  perhaps  some  authority,  to  the  contrary  will  be  found 
in  the  reports.  See  for  instance,  Jones  v.  Trustees  of  Florence,  46  Ala.  626.  The 
maxim  that  the  books  of  a  corporation  are  not  competent  in  its  favor  against  a 
stranger,  to  establish  a  matter  of  private  right,  is  undoubtedly  correct  so  far  as  it 
applies  to  the  corporate  accounts.  That  which  is  peculiar  in  the  competency  of  stat- 
utory records  and  corporate  minutes,  may  be  illustrated  thus:  The  diary  of  an  indi- 
vidual is  evidence  against  him,  but  not  in  his  favor.  He  may  often  prove  an  act  of 
his  own  in  his  own  favor,  but  he  cannot  prove  it  by  showing  an  entry  of  the  fact  in 
his  own  books.  But  corporate  minutes  of  deliberative'  proceedings  are  competent, 
not  only  against  the  corporation,  but  against  any  person  whntsoever,  if  the  delibera- 
tive act  which  is  the  subject  of  the  record,  is  competent  against  him.  The  reason  of 
the  rule  is  that  the  entry  of  the  individual  is  a  mere  declaration  ;  the  vote  of  a  cor- 
poration is  an  act.  Often,  however,  the  corporate  act  must  be  connected  with  other 
proof  to  complete  its  competency. 

8  Ryder  v.  Alton,  Ac.  R.  R.  Co.  13  HI.  523 ;  Penobscot,  &c.  R.  R.  Co.  v.  Dunn,  30 
Me.  90 ;  Highland  Turnpike  Co.  v.  McKean,  10  Johns.  156  ;  Coffin  v.  Coffin,  17  Me.  442. 

*  For  instance,  even  in  an  action  for  tolls.  Duke  v.  Cahawba  Nav.  Co.  10  Ala. 
N.  S.  82. 

4  Moises  v.  Thornton,  8  T.  R.  303. 

6  Edgerly  v.  Emerson,  23  N.  H.  566.     And  this  has  been  repeatedly  ruled  at  cir- 
cuit in  New  York,  against  objection,  and  without  reversal  on  appeal. 

8  Weigh tman  v.  Corporation  of  Washington,  1  Black,  39,  46. 

7  This  principle  is  expressly  recognized  by  the  act  as  to  foreign  corporations.     N. 
Y.  L.  1869,  c.  589. 

8  But  the  entry  relied  on  must  be  tho  primary  one  ;  and  the  record  of  an  inci- 
dental and  secondary  proceeding  is  not  the  best  evidence  of  the  date  and  perform- 
ance of  the  primary  act  which  should  have  preceded  it.      See  Litchfield  v.  Vernon, 
41  N.  Y.  123 ;  Tost  v.  Logan,  1  N.  Y.  Leg.  Obs.  69. 

»  Deming  v.  Roome,  6  Wend.  651 ;  Rose.  N.  P.  231,  citing  Case  of  Thetford,  12 
Tin.  Ab.  90,  and  R.  v.  Mothersell,  1  Stra.  93. 


48  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

57.  Against  whom  Evidence  of  Corporate  Acts  is  competent.'] 
— In  general,  a  resolution  or  other  deliberative  act  of  a  corpora- 
tion may  be  proved  in  its  own  favor,  or  in  favor  of  a  stranger, 
against  any  one  who  takes  issue  upon  it — as  where  the  existence 
01  a  corporation,  depending  on  organization  under  a  general  law, 
or  on  acceptance  of  a  charter,  is  denied,  or  where  it  is  denied  that 
the  body  had  conferred  authority  on  officers  or  agents, — and  there- 
fore in  such  cases  the  minutes  are  competent.     So  such  an  act  is 
competent  as  between  its  members,  in  respect  to  all  matters  within 
the  corporate  tie  that  unites  them ;  and  as  between  them  the  cor- 
porate books  are  of  the  nature  of  public  books.1     Such  an  act  is 
also,  in  general,  competent  against  a  member  and  in  favor  of  the 
corporation  or  its  creditors,  as  to  matters  within  the  same  limits, 
as  for  instance  where  a  receiver  or  a  creditor,  after  judgment 
against  the  corporation,  sues  a  member  or  officer  upon  his  subscrip- 
tion or  individual  liability.     But  the  mere  fact  that  a  person  was 
a  member — for  instance  a  stockholder  in  a  bank — does  not  make 
the  bank  accounts  evidence  against  him  of  transactions  wholly 
foreign  to  his  membership,  such  as  his  dealings  as  a  depositor. 

58.  The  Minutes  not  exclusively  the  best  Evidence^ — The  rec- 
ords of  the  corporate  proceedings  are  not  generally  called  for  or 
produced  on  the  trial.2     The  principle  now  commonly  received  in 
those  jurisdictions  where  the  law  of  corporations  is  most  devel- 
oped, is  that  where  their  proceedings  are  collaterally  or  incident- 
ally in  issue,  parol  evidence  is  equally  primary ;  but  on  the  con- 
trary, the  record  or  a  proper  copy  should  be  deemed  the  best  evi- 
dence, to  be  produced  or  accounted  for  before  parol  evidence  can 
be  adduced,  whenever  the  action  or  defense  is  founded  directly 
on  the  act  or  proceeding  in  question,3  or  when  a  written  act  01 
resolution  is  pleaded  and  in  issue,  or  when  the  contents  of  the 
record  were  communicated  and  the  terms  of  the  communication 
is  the  material  fact.     In  other  words  the  primariness  of  the  min- 
utes does  not  depend  on  their  being  corporate  records,  but  on 
general  principles  applicable  to  other  classes  of  papers.4 


1  1  Greenl.  Ev.  648,  §  493.     By-laws  are  evidence  against  an  agent  or  servant 
who  had  opportunity  to  know  and  a  duty  to  obey  them.      See  Ang.  &  A.  on  Corp. 
347,  §  324. 

2  See  Partridge  v.  Badger,  25  Barb.  146.     Chief  Justice  REDFIELD  says :  "  In  prac- 
tice it  is  not  one  time  in  ten  where  the  record  books  of  a  corporation  are  ever  re- 
ferred to  in  court,  unless  to  fix  a  date  or  the  precise  form  of  a  vote  upon  which  a 
power  is  made  to  depend."     1  Redf.  Rw.  228  (3). 

3  As  in  case  of  a  prosecution  on  a  municipal  ordinance,  see  1  Dill.  M.  C.  443, 
§  355;  compare  Woolsey  v.  Village  of  Rondout,  4  Abb.  Ct.  App.  Dec.  639,  642,  IV; 
or  a  suit  for  relief  against  fraudulent  representations  as  to  the  organization  or  condi- 
tion of  the  corporation.     Warner  v.  Daniels,  1  Woodb.  <fe  M.  106  ;  or  an  action  on  a 
contract  made  by  a  resolution  embodying  the  terms  of  proposal,  followed  by  assent 
on  the  part  of  the  contracting  party.     Paragraph  30,  above. 

4  Conflicting  authorities,  too  numerous  to  be  cited  here,  abound.     The  incertitude 
of  opinion  may  easily  be  seen  by  comparing  1  "VVhart.  Ev.  §  77,  and  Id.  §§  661,  663; 
1  Redf.  on  Rw.  228  (2),  and  Ang.  &  A.  on  C.  66,  §  83 ;  p.  394,  §  368  ;  Field  on  Corp. 
§  224 ;  Partridge  v.  Badger,  25  Barb.  146,  aid  Clark  v.  Farmers'  Woolen,  <fcc.  Co.  15 


BOOKS  AND  PAPERS.  49 

59.  Authentication  of  Corporate  Books  when  produced^ — To 
introduce  the  corporate  books  in  evidence,  their  character  as 
such  must  be  properly  shown  by  testimony,  unless  conceded.1 
For  this  purpose,  it  is  usual  to  call  the  secretary  or  other  officer 
who  made  the  record ;  but  this  is  not  essential,2  for  without  him 
they  may  be  admitted  on  their  production  by  a  \vitness  who  can 
testify  of  his  own  knowledge  that  they  are  the  books  of  the  cor- 
poration ;  that  they  have  been  regularly  kept  by  the  proper  officer, 
or  by  some  person  in  his  necessary  absence ;  that  they  come  from 
the  proper  custody ;  and  that  he  knows  of  his  own  knowledge 
that  the  entries  offered  are  correct  records  of  the  transactions 
they  profess  to  record,3  or,  in  lieu  of  such  knowledge,  other  com- 
petent presumptive  evidence,  such  as — that  the  entries  are  in  the 
handwriting  of  a  person  proved  to  be  the  proper  recording  officer,4 
or  that  the  book  containing  them  has  been  handed  down  in  actual 
and  continuous  use  in  the  corporation,  as  the  guide  and  authority 
for  its  officers.5  Such  evidence  being  given,  it  is  presumable  that 
the  entries  were  made  at  the  dates  they  bear ;  but  if  grounds  of 
suspicion  appear,  the  party  should  be  provided  with  evidence  on 
that  point/  An  erasure  will  be  presumed  to  have  been  made  be- 
fore the  entry  was  signed.7  The  degree  of  this  proof  is  a  prelim- 
inary question  for  the  court.  More  latitude  is  allowable  in  the 
proof,  in  proportion  as  the  books  are  ancient.8  The  signature  of 
the  appropriate  officers  to  the  minutes  of  proceedings  even  of  a 
public  corporation  or  municipal  board,  though  required  by  law,  is 
not  in  the  nature  of  an  official  certificate  of  the  matters  stated  in 
the  minutes  :  but  rather  an  attestation  of  their  authenticity ;  and 

Wend.  256,  and  cases  cited;  Lumbard  v.  Aldrich,  8  N.  H.  31,  and  Edgerly  v.  Emer- 
eon,  23  N.  H.  566,  and  see  36  Id.  138. 

1  If  produced  by  the  corporation  on  notice,  proof  or  authenticity  is  necessary  as 
again>t  a  stranger;  but  is  not  necessary  as  against  the  corporation  or  its  members, 
nor  between  it  and  one  who  is  a  party  to  the  paper  produced  or  claims  under  it,  or  the 
State  proceeding  to  enforce  rights  under  it.  Commonwealth  s.  Woelper,  3  S.  <fe  R.  43. 

s  Hathaway  v.  Inhabitants  of  Addison,  and  other  cases  in  next  note.  The  contrary 
held  where  the  corporation  offered  their  own  books  without  producing  or  accounting 
for  the  recording  officer.  Union  Gold  M.  Co.  v.  Rocky  M.  Nat.  Bank,  2  Col.  Ter.  565. 

3  Highland  Turnpike  Co.  v.  McKean,  10  Johns.  154;  St.  Lawrence  Mut.  Ins.  Co. 
V.  Paige,  1  Hilt.  430;  Hathaway  v.  Inhabitants  of  Addison,  48  Me.  440;  2  Phil.  Ev. 
442 ;   1  Whart.  Ev.  §  639  ;   1  Greenl.  Ev.  §  483,  and  cases  cited.     The  minutes  of  the 
subscription  commissioners  may  be  proved  by  their  secretary.     Ryder  v.  Alton,  <fcc. 
R.  R.  Co.  13  111.  523.     The  books  dedicated  to  the  use  of  the  corporate  records  are 
competent,  though  the  original  volumes  were  purchased,  and  are  claimed,  as  the  in- 
dividual property  of  a  member.     State  v.  Goll,  32  N.  J.  L.  285 ;  and  see  Sawyer  v. 
Baldwin,  11  Pick.  492.     Documents  may  also  be  produced  by  a  corporator  who  has 
custody  of  them.     Stark.  Ev.  456. 

4  If  the  minutes  were  made  by  a  former  clerk,  since  deceased,  his  handwriting, 
and  the  fact  that  he  was  the  proper  recording  officer,  must  both  be  proved  by  extrin- 
sic evidence.     Highland  Turnpike  Co.  v.  McLean,  10  Johns.  153 ;  Owings  V.  Speed, 
5  Wheat.  427. 

6  Union  Bank  v.  Ridgely,  1  liar.  &  G.  410. 
•  Haynes  v.  Brown,  36  N.  H.  5».7. 

'  Rose.  N.  P.  141,  citing  15  Ir.  Ch.  R.  405.  But  see  1  Phil.  Ev.  606  ;  2  Id.  458 ; 
21  N.  Y.  541. 

8  Union  Canal  Co.  v.  Lloyd,  4  Watts  <fc  S.  898 ;  and  see  1  TayL  Ev.  106. 


50  ACTIONS  BY  AND   AGAINST  CORPORATIONS. 

though  they  lack  the  required  signature,  their  authenticity  may 
be  proved  by  testimony.1  The  same  principle  applies  to  the  rec- 
ords of  a  private  corporation. 

It  is  competent  to  rebut  the  evidence  of  authenticity  by  any 
proper  evidence,  for  instance,  by  producing  and  proving  another 
set  of  records,  incompatible  with  those  first  put  in.2 

60.  Rough  •  Minutesl\ — Rough  notes  taken  by  the  recording 
officer,  at  the  meeting,  for  the  purpose  of  being  afterward  ex- 
tended in  the  books,  are,  until  so  extended,  competent  in  place 
of  a  formal  record ; 8  and,  if  lost  without  being  entered,  parol 
evidence  of  the  transactions  of  the  meeting  is  competent.4    But, 
after  the  formal  record  has  been  made  out  from  them  by  the 
proper  officer,  within  a  reasonable  time,  that  becomes  the  original 
record,  and  the  rough  minutes  are  no  longer  the  best  evidence.5 

61.  Competency  of  Copies.'] — Where  the  entries  are  of  a  pub- 
lic character,  so  that  the  public  generally  have  a  right  to  resort 
to  them,  the  court  will  not  require  their  production,  but  allows, 
in  lieu,  the  production  of  a  copy  by  a  witness  who  can  swear  to 
its  accuracy,6  or  a  copy  certified  by  some  officer  who  is  made  by 
law  a  certifying  officer  for  the  purpose.7    Entries  not  of  such  a 
public  nature  cannot  be  proved  by  copy  at  common  law,8  unless 
the  copy  is  one  that  has  been  issued  or  received  as  such  by  the 
corporation  or  other  party  against  whom  it  is  adduced.9    By  a 
recent  statute  in  New  York,  the  books  of  a  foreign  corporation 
are  admissible  in  evidence  to  prove  transactions  of  such  corpora- 
tion in  any  court  of  the  State.     And  copies  of  such  books  may 
be  proved  by  deposition  on  commission,  or  by  any  other  com- 
petent evidence,  on  giving  ten  days'  previous  notice,  except  in 
favor  of  the  corporatipn  where  it  is  a  party.10 

1  People  v.  Eureka  Lake  Co.  48  Cal.  143  ;  West  Springfield  v.  Root,  18  Pick.  318. 
8  Goodwin  v.  U.  S.  Annuity,  <fec.  Co.  24  Conn.  600. 
8  Waters  v.  Gilbert,  2  Gush.  27. 

4  Wallace  v.  First  Parish,  109  Mass.   264 ;  Protho  v.  Minden  Seminary,  2  La. 
Ann.  939. 

5  Board  of  Education  v.  Moore,  17  Minn.  422. 

6  A  seal  will  not  authenticate  it.     Stark.  Ev.  457,  n. ;  Whitehouse  v.  Bickford,  29 
N.  H.  (9  Fost.)  471. 

7  Commonwealth  v.  Chase,  6  Gush.  (Mass.)  248. 

8  A  copy  of  a  vote  of  a  corporation  is  not  competent  evidence  of  such  vote,  unless 
either  sworn  to  or  certified  by  some  person  who  is  made  by  law  a  certifying  officer 
for  such  purpose.     Hallowell,  &c.  Bank  v.  Hatnlin,  14  Mass.  178;  Rose.  N.  P.  141. 
Where  the  law  requires  a  public  record  to  be  kept  by  officers,  which  all  persons  in- 
terested are  entitled  to  a  copy  of,  some  courts,  fur  reasons  of  convenience,  have  re- 
ceived a  copy  authenticated  by  the  officers.     Eastport  v.  East  Machias,  35  Me.  404. 

8  Atlantic  Mut.  Fire  Ins.  Co.  v.  Sanders,  36  N.  H.  252 ;  1  Redf.  on  Rw.  467 ; 
Stale  Bank  v.  Ensminger,  7  Blackf.  (Ind.)  105. 

•10  L.  1869,  c.  589.  amending  §  1  of  L.  1803,  c.  206;  modified'in  application  by  N. 
Y.  Code  Civ.  Pro.  §§  3343  and  920-931.  The  Illinois  act  admitting  copies,  has  been 
held  merely  to  make  certfiied  copies  admissible  in  lieu  of  originals,  and  not  to  make 
such  books  and  records  evidence  as  were  not  so  previously.  Pittsfield,  <fec.  Plank  Road 
Co.  v.  Harrison,  16  111.  81.  As  to  records  out  of  the  jurisdiction,  proved  by  deposi- 
tion,  see  4  Allen,  122,  and  King  v.  Enterprise  Ins.  Co.  45  Ind.  43,  59. 


BOOKS  AND  PAPERS.  51 

62.  Reports^ — An  official  statement  or  report  received  by  the 
corporation  or  board  from  one  acting  as  officer,  and  accepted,  and 
adopted  by  them,  is  competent  evidence  against  the  corporation, 
and  those  bound  by  its  acts,  without  further  proof  of  the  appoint- 
ment of  the  officer ; 1  but  a  report  to  a  corporation  or  board  is  not 
made  admissible  in  evidence  against  it  by  the  mere  fact  that  it 
was  received  and  "  accepted "  by  it,2  except  for  the  purpose  of 
charging  it  with  notice  of  the  contents. 

63.  Foundation  for  Secondary  Evidence.'] — Where  proof  of 
loss  is  required,  as  it  may  be  when  the  corporation  offers  secon- 
dary evidence  in  its  own  behalf,  testimony  of  the  proper  custo- 
dian, that  he  has  the  control  of  all  the  books  and  papers  of  the 
company,  and  has  made  most  diligent  search  for  the  book,  and 
inquiry  of  every  person  concerned  with  the  matter,  but  could  get 
no  clue  to  it,  is  enough,3  and  if  the  proper  custodians  testify  to 
their  proper  search  for  a  book  which  they  had  allowed  to  be  re- 
moved, and  the  inability  of  themselves  and  of  the  person  to 
whom  it  was  lent  to  find  it,  and  their  ignorance  as  to  where  it  is, 
this  is  sufficient  in  the  absence  of  suspicious  circumstances,  with- 
out calling  such  third  person.4 

64.  Notice  to  produce.'] — A  person  not  entitled  to  the  custody 
of  the  books  or  papers  is  not  bound,  as  against  the  corporation,  to 
call  its  officer  as  a  witness  before  offering  secondary  proof  against 
it,  but  may  give  its  attorney  notice  to  produce,5  and,  in  default 
of  compliance,  may  prove  the  contents  by  secondary  evidence.  A 
written  authority  01  an  officer  or  agent,  if  delivered  to  him  by 
the  corporation  as  his  evidence  of  appointment,  should  be  called 
for  \>y  .subpoena  duces  tecum  to  him  ;    but  if  simply  entered  in 
their  records  as  the  act  of  the  corporation,  although  kept  in  his 
custody,  should  be  called  for  by  notice  to  produce.6    The  failure 
of  the  corporation  to  produce  its  books  upon  due  notice  entitles 
the  adverse  party  to  favorable  presumptions  in  aid  of  his  second- 
ary evidence ; 7  but  it  does  not  preclude  them  from  producing 
the  books  on  their  own  behalf  for  another  matter.8 

65.  Parol  Evidence  to  vary  Corporate  Minuses.'] — Where  the 
record  of  meetings  of  a  municipal  corporation  is  kept  pursuant  to 
law,  parol  evidence,  although  admissible  to  apply  the  language  to 
its  subject-matter,  is  not  competent  to  enlarge  or  contradict  the 

1  Partridge  v.  Badger,  25  Barb.  172. 

*  1  Dill.  M.  C.  357,  §  242  ;  see  also  paragraph  36. 

8  Graff  v.  Pittsburgh,  <fcc.  R.  R.  Co.  31  Pa.  St.  494;  Board  of  Education  v.  Moore, 
17  Minn.  412. 

4  Partridge  v.  Badger,  25  Barb.  173,  8.  p.  Indianapolis,  <fec.  R.  R.  Co.  v.  Jewett, 
16  Ind.  273. 

6  Thayer  v.  Middlesex  MutuaHns.  Co.  10  Pick.  326  ;  1  Redf.  Rw.  228  (2). 

*  Westcott  v.  Atlantic  Silk  Co.  3  Mete.  291. 

1  SHAW,  Ch.  J.,  Thayer  v.  Middlesex  (above);  Wylde  T.  Northern  Rw.  Co.  53 
N.  Y.  156.  Compare  18  Wall.  644. 

8  Tyng  v.  U.  S.  Submarine,  Ac.  Co.  1  Hun,  161. 


52  ACTIONS  BY  AND  AGAINST  CORPORATIONS. 

terms  or  meaning  of  proceedings  which  are  recorded;1  and  in 
general,  where  the  law,  for  the  purpose  of  preserving  authentic 
evidence,  prescribes  the  keeping  of  official  minutes  of  public  pro- 
ceedings of  a  corporate  nature,  parol  evidence  is  not  competent  to 
contradict  the  minutes.2  In  respect  to  minutes  of  private  corpora- 
tions, the  better  opinion  is  that  parol  evidence  is  competent,  except 
where  the  minutes  are  held  the  best  evidence,  and  even  then,  un- 
less the  issue  is  between  the  corporation  and  another  party  to  the 
act  which  they  are  adduced  to  prove.3  Moreover,  the  restric- 
tion on  such  parol  evidence  applies  only  to  the  records  of  the 
proceedings  of  the  corporate  body  itself ;  but  not  to  those  of  the 
directors  of  private  corporations.  They  are  but  agents  of  the 
body,  and  their  minutes  are  not  (unless  by  contract  or  estoppel) 
conclusive  on  the  corporation,  but  may  be  contradicted  by  parol.4 
And  a  witness,  an  officer  of  the  corporation,  may  be  asked  if  he 
knew  of  any  reason  why  the  assent  given  informally  by  the  di- 
rectors was  not  recorded.  The  mistake  or  neglect  of  the  secre- 
tary, or  the  direction  of  the  board  to  delay  the  entry,  may  be 
proved  against  the  corporation.5  But  even  where  parol  evidence 
is  admissible,  testimony  as  to  the  sense  in  which  the  recorded 
vote  was  understood  by  an  officer  or  member  is  not  competent,6 
nor  are  his  declarations'  as  to  its  meaning  competent,  except 
against  himself.7 

66.  Accounts  and  Business  Entries."] — The  third  class  of  cor- 
porate books,  constituting  the  accounts  of  the  transactions  of  a 
private  corporation  had  through  agents  and  officers,  are  competent 
between  members,  and  between  the  corporation  and  members  on 
any  question  which  concerns  them  in  their  interest  as  such,8  and 
between  third  persons  at  issue  in  respect  to  the  condition  and 
solvency  of  the  corporation.9  Beyond  this,  their  corporate  char- 
acter gives  them  no  competency  in  favor  of  the  corporation,  nor 
between  third  persons,10  but  their  admission  for  these  purposes 
must  be  sought  on  grounds  common  to  the  accounts  of  individ- 
uals and  firms — for  instance,  by  producing  the  person  who  made 
the  entry,  and  reading  it  as  a  memorandum  in  aid  of  his  testi- 


1  See  1  Dill.  M.  C.  349,  and  cases  cited  pro  and  con. 

*  See  People  v.  Zeyst,  23  N.  Y.  140 ;    and  as  to  supplying  omissions  by  parol, 
compare  Andrews  v.  Inhabitants  of  Boston,  110  Mass.  214 ;  as  to  amending,  compare 
1  Dill.  M.  C.  846,  §§  233,  234. 

3  See  p.  16,  n.  9. 

«  Goodwin  v.  U.  S.  Annuity,  Ac.  Co.  24  Conn.  601. 

6  Bay  View  Ass.  v.  Williams,  50  Cal.  353. 

•  Ehle  v.  Chittenango  Biink,  24  N.  Y.  648 ;  1  Greenl.  Ev.  328,  n. 

*  Bartlett  v.  Kinsley,  15  Conn.  334;  Tyng  v.  TJ.  S.  ^ubmafipe  Co.  1  Hun,  161. 
8  Hubbell  v.  Meigs,  50  N.  Y.  480;  Merchants'  B^nk  v.  Rawls,  21  Geo.  334. 

•  See  paragraph  58,  n.  8,  (above). 

10  Except  when  they  are  the  books  of  a  foreign  corporation  within  the  statute 
N.  Y.  L.  1869,  c.  589;  N.  Y.  Code  Civ.  Pro.  §§  929-931  and  3343,  or  perhaps  when 
the  books  of  a  bank  the  property  of  the  State.  Crawford  v.  Bank,  <fcc.  8  Ala,  N.  S.  79. 


BOOKS  AND  PAPERS.  53 

mony  to  its  correctness,1  or  by  showing  that  the  entry  was  made 
when  the  party,  being  a  member,  was  present  and  presumably  as- 
senting to  the  entry  ;*  or  by  showing  that  the  memorandum  was 
made  by  the  common  agent  of  the  parties,  at  their  request,3  or 
that  it  was  made  in  the  course  of  duty  by  a  person  since  deceased, 
who  had  means  of  knowledge,  and  no  interest  to  falsify.4  In  case 
of  a  public  corporation,  admission  of  accounts  may  be  sought  on 
grounds  common  to  the  accounts  of  public  officers ; 5  and  as  against 
the  corporation,  entries  in  the  corporate  books,  made  by  an  officer 
in  the  discharge  of  his  duty,  are  competent  on  proving  the  books 
by  the  secretary  or  by  other  regular  proof.  It  is  not  necessary  to 
produce  the  officer  who  made  tne  entries.6 


1  Farmers'  &  Mech.  Bank  v.  Boralf,  1  Rawle,  162  ;  Chenango  Bridge  Co.  v.  Lewis, 
63  Barb.  111. 

*  And  such  an  entry  is  equally  competent  against  those  claiming  under  the  mem- 
ber. Union  Canal  Co.  v.  Lloyd,  4  Watts  <fe  S.  358.  And  even  where  the  very 
question  is  whether  he  was  a  member,  prima  facie  evidence  on  that  point  is  enough 
to  let  in  the  entry  made  in  his  presence  and  assent.  Graff  v.  Pittsburgh,  Ac.  R.  R. 
Co.  81  Pa.  St.  495. 

3  New  England  Co.  v.  Vandyke,  1  Stockton  (N.  J.)498;  compare  Black  v.  Shreve, 
13  N.  J.  Ch.  455. 

4  Ocean  Bank  v.  Carll,  55  N.  Y.  440;  9  Hun,  239 ;  "Wheeler  v.  "Walker,  45  N.  H. 
355  ;  Chenango  Br.  Co.  Ac.  v.  Lewis,  63  Barb.  111. 

5  See  Cabot  v.  Waldron,  46  Vt.  11. 

6  N.  Am.  Building  Asso.  v.  Sutton,  35  Pa.  St.  466. 


CHAPTEE  IV. 

ACTIONS  BY  AND  AGAINST  EXECUTORS  AND  ADMINISTRATORS. 

1.  Nature  of  official  character  and  title.       14.  What  interested  witnesses  are  ex- 

2.  Necessity  of  proof  of  title  under  plead-  eluded. 

ings.  1 6.  Assignor  or  source  of  title  excluded. 

8.  Appropriate  mode  of  proof.  16.  What  persons  are  protected. 

4.  Effect  of  letters  as  evidence.  1 7.  Insanity. 

5.  Impeaching  the  letters.  18.  Objecting  to  the  testimony. 

6.  Best  and  secondary  evidence  of  au-  19.  Preliminary  question  of  competency. 

thority.  20.  Moving  to  strike   out  incompetent 

7.  Representatives'  declarations  and  ad-  part  of  testimony. 

missions    competent   against  the      21.  Proof  of  an  interview. 

estate.  22.  What  is  a  personal  transaction  or 

8.  The  decedent's  declarations  and  ad-  communication. 

missions.  23.  Indirect  evidence. 

9.  Judgments.  24.  Effect  of  objecting  party  testifying  in 

10.  Testimony  of  the  representative.  his  own  behalf. 

11.  Testimony    of     interested    persons      25.  Form  of  offer  of  testimony  in  re- 

against  the  estate.  buttal. 

12.  The  New  York  rule.  26.  The  United  States  courts  rule. 

13.  What  parties  are  excluded. 

1.  Nature  of  Official  Character  and  Title.'] — By  the  modern 
law,  executors  and  administrators  are  no  longer  the  presumptive 
and  contingently  ultimate  owners  of  the  assets,  but  are  consti- 
tuted trustees  01  all  the  property  in  their  hands ;  *  and  an  execu- 
tor, though  designated  by  the  will,  derives  his  power,  as  truly  as 
an  administrator,  from  letters  granted  by  the  probate  court.2  In 
respect  to  liability  to  action,  he  stands  in  the  place  of  the  de- 
ceased, and  a  creditor  is  now  entitled  to  judgment  without  alleg- 
ing or  proving  that  there  are  any  assets ;  for  the  judgment  only 
liquidates  the  debt.3  On  the  other  hand,  the  creditor  cannot  re- 
cover against  an  executor  who  has  not  taken  out  proba'te,  even 
on  proof  of  his  having  assets.4  Letters  must  be  issued,  and  it  is 
for  the  holder  of  letters  to  proceed  against  those  who  meddle 
with  the  estate  without  having  letters.  The  authority  of  the 
executor  or  administrator  to  enable  him  to  sue  cannot  be  shown 
by  letters  granted  by  a  court  of  another  State.5  Such  letters  are 


1  Dox  v.  Backenstose,  12  Wend.  542 ;  Babcock  v.  Booth,  2  Hill,  181. 

8  Hood  v.  Ld.  Barrington,  L.  R.  6  Eq.  222. 

8  Allen  v.  Bishop,  25  Wend.  414:  Parker  v.  Gaines,  17  Id.  658;  Covington  v. 
Barnes,  1  Dill.  C.  Ct.  16,  and  cases  cited. 

4  As  to  the  exception  in  equitable  actions  of  a  certain  class,  see  Metcalf  v.  Clark, 
41  Barb.  45,  and  cases  cited;  Haddow  v.  Lundy,  59  N.  Y.  320. 

6  Doolittle  v.  Lewis,  7  Johns.  Ch.  45,  and  cases  cited ;  Noonan  v.  Bradlev,  9 
Wall.  394.  Contra,  Cannichael  v.  Saint,  16  Ark.  28. 

[54] 


ACTIONS  BY  AND  AGAINST  EXECUTORS,  &o.  55 

often  relevant  for  the  purpose  of  justifying  his  acts  without  suit, 
done  within  this  State,1  his  acts  done  elsewhere,2  and  his  suits 
and  proceedings  in  the  State  where  the  letters  issued ; 3  and  when 
thus  relevant,  they  are  competent  if  authenticated  agreeably  to 
the  act  of  Congress,4  or  to  the  law  of  the  forum.5  The  executor 
or  administrator  is  thus  the  official  and  sole  trustee  of  the  estate. 
He  is  not,  however,  a  public  officer  within  the  rules  as  to  evi- 
dence. His  actual  title  must  be  shown  ;  and,  although  in  the  ab- 
sence of  evidence  to  the  contrary,  he  is  presumed  to  have  acted 
in  good  faith,6  the  presumption  of  regularity  accorded  to  official 
acts  does  not  aid  his  proceedings.7  The  law  distinguishes  between 
his  interest  and  his  acts,  as  representative  of  the  estate,  and  those 
in  his  individual  capacity  or  other  official  capacity ;  and  acts  done 
in  one  capacity  are  not  necessarily  conclusive  against  him  in  the 
other.8 

2.  Necessity  of  proof  of  title,  under  Pleadings^] — If  the  alle- 
gations of  the  complaint  do  not  show  explicitly  whether  the  party 
sues  or  is  sued  in  the  representative  or  the  individual  character, 
resort  will  be  had  to  the  designation  in  the  title  of  the  pleading. 
If  it  is  there  indicated  that  he  sues-,  or  is  sued,  "as"  representa- 
tive— for  example,  if  he  is  named  "  A.  B.  as  executor  of  C.  D.," 
this  is  enough  to  characterize  the  action.9  But  if  he  is  named 
with  a  mere  addition — for  example,  A.  B.,  executor,  &c.,  of 
C.  D.,  this  is  matter  of  description  only,  and  does  not  alone  show 
that  the  action  is  in  his  official  capacity,10  but  in  connection  with 
allegations  in  the  complaint,  may  suffice  to  sustain  the  action  in 
either  capacity.  Under  the  new  procedure,  a  representative 
suing  even  on  a  cause  of  action  accruing  on  a  contract  made  with 
himself,  or  founded  on  his  own  actual  possession,  should  be  pre- 
pared with  evidence  of  his  appointment,  if  his  character  as  such 
is  alleged  in  his  pleading,  and  not  admitted,  especially  if  the  re- 


1  Parsons  v.  Lyman,  20  N.  Y.  103,  affi'g  28  Barb.  564,  and  rey'g  4  Bradf.  268. 
5  Middlebrook  v.  Merchants'  Bank,  3  Abb.  Ct.  App.  Dec.  295,  affi'g  41  Barb.  481 ; 
18  Abb.  Pr.  109. 

3  Clark  v.  Blackington,  110  Mass.  369,  374. 

4  U.  S.  R.  S.  §  905 ;    Spencer  v.  Landon,  21  III  192 ;    Graham  v.  Whitely,  26  N. 
J.  L.  260. 

*  N.  Y.  R.  S.  936,  §  26;  Code  Civ.  Pro.  §  952. 
«  Sherman  v.  Willett,  42  N.  Y.  146. 

T  Bank  of  Troy  v.  Topping,  13  Wend.  563 ;  Hathaway  v.  Clark,  5  Pick.  490. 

8  So  held  of  ratification  of  a  contract,  Caughey  v.  Stnith,  47  N.  Y.  244 ;  50  Barb. 
351.  So  of  a  judgment,  see  Rathbone  v.  Hooney,  58  N.  Y.  463.  Contra,  of  notice, 
Burr  v.  Bigler,  ]6  Abb.  Pr.  177.  So  of  an  appearance  and  accounting,  Larrour  v. 
Larrour,  2  Redf.  69.  So  of  a  receipt,  Wilcox  v.  Smith,  25  Barb.  316,  350.  The 
rule  is  usually  different  where  his  individual  interest  is  represented  by  him  in  his 
official  character.  McGovern  v.  N.  Y.  Central,  <fcc.  R.  R.  Co.  67  N.  Y.  417 ;  but  then 
it  may  be  necessary  that  his  cextnis  q>te  trustent  be  parties. 

•  Stilwell  v.  Carpenter,  2  Abb.  N.  C.  240,  261 ;  Austin  v.  Munro,  47  N.  Y.  867; 
Scranton  v.  Farmers'  Bank,  83  Barb.  527. 

lu  Merrittv.  Seaman,  6  N.  Y.  168;  Carpenter  v.  Stilwell  (above) ;  3  Wms.  Ex'rs,  6 
Am.  ed,  2052-5;  Id.  1981,  n.  b. ;  1986. 


56  ACTIONS  BY  AND  AGAINST 

covery  will  be  assets  ;  but,  in  courts  where  the  common-law  rule 
is  still  followed,  this  proof  may  not  be  essential  in  such  cases.1 

3.  Appropriate  Mode  of  Proof.'] — The  appropriate  proof  of 
the  official  character  is  the  production  of  the  letters  testamentary, 
or  of  administration,  granted  to  him  by  the  appropriate  tribunal 
within  the   State  where   he  sues ; 2  and  the   rule  is  the  same 
whether  he  seeks  to  prove  it  in  his  own  favor,3  or  it  is  to  be 
proved  against  him,*  or  proved  by  a  third  person  as  the  source  of 
title.5     unless  foundation  is  laid  for  secondary  proof,  parol  evi- 
dence is  incompetent.6    But  upon  well  settled  general  principles, 
direct  proof  may  be  dispensed  with  by  estoppel,7  and  where  di- 
rect proof  is  impossible,  indirect  evidence  may  suffice  to  raise  a 
presumption  that  letters  were  duly  granted.8 

The  letters,  since  they  are  founded  on  a  decree  granting  ad- 
ministration, are  not  the  only  evidence ;  the  decree  itself  may  be 
proved.9  The  letters,  however,  are  competent  without  the  de- 
cree.10 Unless  the  statute  makes  letters  testamentary  sufficient 
evidence,  an  executor  must  produce  also  the  probate  of  the  will.11 
The  identity  of  the  party  with  the  one  named  in  the  letters  may 
be  presumed  by  the  court  from  absolute  identity  of  name,12  but 
not  from  identity  of  surname.13  In  case  of  ambiguity  or  differ- 
ence, parol  evidence  is  admissible  to  identify.14 

4.  Effect  of  Letters  as  Evidence.] — Letters  in  due  form,  granted 
by  a  court,  within   the   State,   and  having  jurisdiction,  are   at 
common  law  presumed  to  have  been  regularly  issued,  and  to 
qualify  the  holder  to  sue  and  be  sued ; 15  and  the  giving  of  bond 

I  3  Wins.  Ex'rs,  6  Am.  ed.  2002,  &c.  The  regulation  of  this  subject  varies  much  in 
different  jurisdictions,  according  to  the  extent  to  which  the  statutes  have  embodied 
the  modern  principle,  that  the  representative  is  a  mere  trustee. 

8  Noonan  v.  Bradley,  9  Wall.  394. 

3  Belden  v.  Meeker,  47  N.  Y.  307,  affi'g  2  Lans.  470 ;  and  auth.  cited. 

4  Armstrong  v.  Lear,  12  Wheat.  175. 

5  Pinney  v.  Pinney,  8  Barn.  &  C.  335 ;  1  Wms.  Ex'rs,  6  Am.  ed.  349 ;  Remick  v. 
Bntterfield,  31  N.  H.  70,  84. 

6  Williams  v.  Jarrot,  6  111.  (1  Gilm.)  120,  129. 

7  As  where  defendants  had  covenanted  with  the  executors  as  such,  Farnham  v. 
Mallory,  2  Abb.  Ct.  App.  Dec.  100 ;  or  where  the  alleged  representative  had  as  such 
conveyed  to  defendant,  Bratt  v.  Bratt,  21  Md.  578 ;  or  had  procured  the  action  to 
be  revived,  by  an  order  of  court,  reciting  his  character  as  such,  McNair  v.  Ragland,  1 
Dev.  (N.  C.)  Eq.  539.     CWra,  Shorter  v.  Urquhart,  28  Ala.  N.  S.  360,  366. 

8  Marcy  v.  Marcy,  6  Mete.  (Mass.)  360;  Battles  v.  Holley,  6  Greenl.  (Me.)  145. 

9  Farnsworth  v.  Briggs,  6  N.  H.  561;  Elden  v.  Keddell,  8  East,  187,  LD.  ELLEN- 
BOROUGH.     But  if  the  decree  grants  administration  on  condition,  the  letters  should  be 
produced.     Dale  v.  Roosevelt,  8  Cow.  349.     In  some  courts,  however,  performance 
of  the  condition  will  be  presumed.     See  paragraph  4,  n.  1. 

10  Remick  v.  Butterfield,  31  N.  H.  70,  84. 

II  3  Phil.  Ev.  75. 

1S  Hatcher  v.  Rocheleau,  18  N.  Y.  86.    Contra,  3  Wms.  Ex'rs,  6  Am.  ed.  2060. 

13  Fanning  v.  Lent,  3  E.  D.  Smith,  206.  Contra,  Trimble  v.  Brichta,  10  La.  Ann.  778. 

14  See  3  Abb.  N.  Y.  Dig.  2d  ed.  95. 

15  Westcott  v.  Cady,  5  Johns.  Ch.  334,  343 ;  even  though  the  death  of  the  decedent 
was  presumed  from  absence  for  less  than  seven  years,  Newman  v.  Jenkins,  10  Pick.  5 15. 
The  seal  of  the  surrogate  may  be  affixed  even  pending  the  trial,  Maloney  v.  Woodin, 
11  Hun,  202. 


EXECUTORS  AND  ADMINISTRATORS.  57 

and  taking  of  oath  may  be  presumed.1  In  New  York  and  some 
other  States,  such  letters  are  conclusive  evidence  of  the  au- 
thority of  the  representative,  until  reversed  on  appeal,  or  re- 
voked,2 and  at  common  law  they  are  conclusive  as  to  the  au- 
thority of  the  representative  over  the  personalty.3  The  recital, 
in  the  letters,  of  the  jurisdictional  facts,  is  prima  facie  evidence 
that  they  existed,4  but  if  the  record  shows  that  the  statutory  no- 
tice to  parties  in  interest  was  not  given,  jurisdiction  fails.5  The 
fact  that  a  contest  is  pending  in  the  probate  court  as  to  the  va- 
lidity of  the  letters,  does  not  impair  their  effect,  whether  prima 
facie  or  conclusive,  if  it  be  under  statutes  which  impose  the  bur- 
den of  proof  on  the  contestants.6  Letters  taken  out  pending  the 
suit,  although  competent  at  common  law,7  and  in  chancery,8  es- 
pecially where  no  objection  was  made  by  pleading,  are  not  suf- 
ficient under  the  modern  practice,9  except  in  favor  of  or  against 
one  who  has  been  substituted  as  representative,10  or  who  is  en- 
abled to  avail  himself  of  the  fact  of  appointment  under  supple- 
mental pleading  or  pleadings  equivalent  in  effect.11 

What  has  been  said  as  to  the  effect  of  letters  is  applicable  to 
letters  issued  as  of  course,  on  producing  and  recording  foreign 
letters  in  the  probate  court,  unless  the  statute  authorizing  this 
proceeding,  or  the  foreign  statutes  under  which  the  original  let- 
ters were  granted,  indicate  a  different  rule.12 

5.  Impeaching  the  Letters.} — The  burden  of  proof  is  upon 
one  who  disputes  the  authority  of  an  executor  or  administrator, 
on  the  ground  of  want  of  jurisdiction.13  The  jurisdictional  facts 
are  defined  by  statute,  and  are  usually  death  and  assets,  under  the 
prescribed  conditions  as  to  domicile  and  location.14  These  matters 
may  be  disproved  if  the  validity  of  appointment  is  in  issue.15 


I  Brooks  v.  Walker,  3  La.  Ann.  150.     So  also  may  a  prior  resignation  creating 
the  vacancy  filled  by  the  letters,  Gray  v.  Cruise,  36  Ala.  N.  S.  559 :  but  only  if  the 
surrogate  had  power  to  accept  a  resignation.     Flinn  v.  Chase,  4  Den.  85. 

8  2  N.  Y.  R.  S.  80,  §  56 ;  1  Wms.  Ex'rs,  6  Am.  ed.  620,  n.  (h),  and  cases  cited. 

3  Allen  v.  Dundas,  3  T.  R.  125. 

4  Farley  v.  McConnell,  52  N.  Y.  630,  affi'g  7  Lans.  428 ;  Belden  v.  Meeker,  47  N.  Y. 
307,  affi'g  2  Lans.  470. 

6  Randolph  v.  Bayne,  44  Cal.  866. 

6  Brown  v.  Burdick.  26  Ohio  St.  266. 

7  Thomas  v.  Cameron,  16  Wend.  579. 

8  Osgood  v.  Franklin,  2  Johns.  Ch.  1 ;  Doolittle  v.  Lewis,  7  Id.  45 ;  Goodrich  v. 
Pendleton,  4  Johns.  Ch.  549. 

9  Thomas  v.  Cameron,  16  Wend.  679;  Varick  v.  Bodine,  3  Hill,  444;  Bellinger 
T.  Ford,  21  Barb.  811. 

10  French  v.  Frazier's  Ad.  7  J.  J.  Marsh.  425,  432. 

II  Haddow  v.  Lundy,  69  N.  Y.  820. 

18  See  on  this  subject  Parker  v.  Parker,  11  Cush.  519;  Dublin  v.  Cliadbourn,  16 
Mass.  433. 

18  Welch  v.  N.  Y.  Central  R.  R.  Co.  53  N.  Y.  610. 

14  Comstock  v.  Crawford,  3  Wall.  403 ;  2  R.  S.  of  N.  Y.  73,  §  23;  L.  1837.  ch. 
460,  §  1,  same  stat.  3  R.  S.  6th  ed.  826,  §  2;  Farley  v.  McConnell,  52  N.  Y.  630, 
affi'g  7  Lnns.  428. 

"  Redf.  on  W.  57.    But  doubted ;  see  67  N.  Y.  880 ;    63  Id.  460.     The  weight  of 


58  ACTIONS  BY  AND  AGAINST 

• 

Bnt  the  letters  cannot  be  impeached  by  proving  that  the  surro- 
gate did  not  comply  even  with  the  requirements  of  the  statute 
expressed  to  be  conditions  precedent  of  his  action,  such  as  exam- 
ination of  parties  on  oath,1  much  less  that  they  issued  to  a  person 
not  entitled,2  if  these  requirements  do  not  enter  into  the  defini- 
tion of  the  jurisdiction  of  the  court,  and  do  not  relate  to  the 
notice  necessary  to  bind  the  adverse  party.  Nor  can  the  letters 
be  impeached,  as  to  personalty  at  least,  by  showing  that  the  testa- 
tor was  incompetent,3  or  that  the  will  was  forged ; 4  but  fraud 
in  obtaining  the  letters  is  competent,5  unless  the  statute  affords 
an  exclusive  remedy  in  the  probate  court.  The  minutes  of  the 
surrogate  are  not  rendered  incompetent  because  the  statute  pro- 
vides that  the  testimony  must  be  entered  in  a  book  and  preserved 
as  part  of  the  record.6 

6.  Best  and  Secondary  Evidence   of   Authority. ,] — If    the 
pleadings  require  a  party  to  prove  his  adversary's  authority  as 
executor  or  administrator,  it  is  best  to  give  him  notice  to  produce 
at  the  trial  the  letters  or  probate,  or  both,  as  the  case  may 
require,  unless  the  party  is  prepared  to  produce  the  decree  or  an 
exemplified  copy  of  the  letters  as  primary  evidence.     But  it  is  not 
necessary,  in  order  to  let  in  secondary  evidence,  to  prove  that  the 
probate  or  letters  are  in  the  adversary's  possession ;  for  proof 
that  he  has  been  duly  appointed  executor  or  administrator,  raises 
a  sufficient  presumption  that  they  are  in  his  possession  to  let  in 
secondary  proof.7 

7.  Representative's  Declarations  and  Admissions  Competent 
against  the  Estate  J]  —  The  admissions  and  declarations  of    an 
executor  or  administrator,  made  while  he  was  clothed  with  official 
authority  as  such,  are  competent  in  evidence  against  the  estate 


the  decisions  on  this  point  10  impaired  by  two  considerations :  Many  of  the  English 
cases  are  the  refusal  of  common-law  courts  to  hold  themselves  bound  by  purely 
ecclesiastical  adjudications.  And  many  of  the  American  cases  arose  at  a  time  when 
probate  was  little  more  than  prima  facie  authentication,  like  the  acknowledgment  or 
proof  of  a  deed.  The  tendency  of  recent  legislation  is  to  make  the  decree  of  the 
probate  court  an  adjudication  in  the  fullest  sense.  See  63  N.  Y.  460.  Whether  dis- 
proving death  avoids  the  letters  so  far  as  to  deprive  those  who  have  acted  on  them 
in  good  faith,  of  their  protection,  see  Jochumsen  v.  Suffolk  Bank,  3  Allen  (Mass.) 
87,  in  the  affirmative;  and  Roderigues  v.  East  River  Bank,  63  N.  Y.  460,  rev'g  48 
How  Pr.  166,  in  the  negative. 

1  Farley  v.  McConnell,  52  N.  Y.  630,  affi'g  7  Lans.  428. 

2  Comstock  v.  Crawford,  3  Wall.  403. 

3  3  Redf.  on  W.  57 ;    1  Wms.  on  Ex'rs,  6th  Am.  ed.  618.     Contra,  see  2  Whart. 
Ev.  §811. 

4  Allen  v.  Dundas,  3  T.  R.  125 ;  Steph.  Ev.  48. 

•  Exp.  Joliffe,  8  Beav.  168,  and  see  Stilwell  v.  Carpenter,  3  Abb.  N.  C.  263. 

•  Haddow  v.  Lundy,  59  N.  Y.  320. 

7  3  Wms.  Ex'rs,  6th  Am.  ed.  2059.  A  paper  imperfectly  showing  the  will  and 
Its  probate,  if  shown  to  have  been  acted  on  as  such  by  the  representative,  may  bo 
competent  secondary  evidence  against  him  of  an  admission  in  the  will  binding  the 
estate,  notice  to  produce  the  original  probate  having  been  given  to  him  and  disre- 
garded. 3  Wms.  Ex'rs  [2004],  citing  Gordon  v.  Dyson,  1  Brod.  &  B.  219. 


EXECUTORS  AND  ADMINISTRATORS.  59 

while  represented  in  the  action,  either  by  him1  or  by  his  suc- 
cessor in  the  administration.2  Mere  declarations  or  admissions 
however,  as  distinguished  from  acts,  do  not  bind  the  representa- 
tive,8 but  he  may  explain  or  contradict  them.  Declarations  and 
admissions  made  belore  he  was  fully  clothed  with  the  trust,4  or 
after  he  was  removed,  are  not  competent,  as  against  the  estate, 
to  affect  the  parties  beneficially  interested  other  than  himself, 
except  perhaps  to  prove  his  knowledge  of  the  fact  admitted. 
Where  there  are  several  co-representatives,  the  admissions  and 
declarations  of  one  are  not  competent  against  the  others,  either 
to  establish  the  demand  as  an  original  one,5  or  to  revive  the  debt 
after  the  limitation  has  passed.6  But  proof  of  an  admission  of  a 
fact  by  one  is  admissible,  because  it  may  be  followed  up  by  proof 
of  a  similar  admission  by  all  the  others.  Jf  not  thus  followed, 
the  judge  should  instruct  the  jury  to  disregard  it.7 

8.  The  Decedents  Declarations  and  Admissions. .] — If  the  ex- 
ecutor or  administrator  sues  or  defends,  by  virtue  of  his  charac- 
ter as  such,  evidence  of  the  declarations  and  admissions  made  by 
the  decedent  in  his  lifetime  is  competent  against  the  representa- 
tive ; 8  and  even  the  decedent's  declarations  as  to  the  value  of  his 

1  Faunce  v.  Gray,  21  Pick.  243 ;  Eckert  v.  Triplett,  48  Ind.  174  ;  s.  o.  17  Am.  R 
735  ;  1  Greenl.  Ev.  215.  Contra,  Allen  v.  Allen,  26  Mo.  327;  Crandall  v.  Gallup,  12 
Coon.  372,  and  cases  cited.  The  contrary  has  also  been  held  of  loose  oral  declara- 
tions to  a  third  person,  because  the  representative  was  deemed  to  have  no  interest, 
no  adequate  information,  and  no  lejjal  duty.  Hueston  v.  Hueston,  2  Ohio  St.  483; 
and  in  Ciples  v.  Alexander,  2  Const.  (Troadw.  S.  C.),  767,  it  was  held  that  a  bare 
oral  admission  is  not  enough  to  sustain  a  recovery ;  8.  P.  Jones  v.  Jones,  21  N.  EL 
219.  The  better  opinion  is  that  the  admission  is  competent,  and  if  explicit  and  unex- 
plained, sufficient  to  go  to  the  jury.  As  to  an  account  stated  with  the  representa- 
tive, see  1  Wms.  Ex'rs  [1947],  n.  f. ;  N.  Y.  Code  Civ.  Pro.  §  395  ;  Young  v.  Hill,  67  N. 
Y.  192,  and  cases  cited. 

8  Lash  lee  v.  Jacobs,  9  Humph.  718;  Eckert  v.  Triplett  (above);  Matoon  v.  Clapp, 
8  Ohio,  248  ;  contra,  Pease  v.  Phelps,  10  Conn.  62,  68. 

3  To  this  extent  the  principle  in  Rush  v.  Peacock,  2  Moody  <fe  Rob.  162,  is  sound. 

4  Moore  v.  Butler,  48  N.  H.  161,  170;  Fenwick  v.  Thornton,  M.  &  M.  51,  ABBOTT, 
C.  J. ;   Legge  v.   Edmonds,  25  L.  J.  Ch.  125,  141 ;    1  Greenl.  Ev.  217,  §  179.     See 
contra,  TINI>AL,  J.,  in  Smith  v.  Morgan.  2  M.  &  Rob.  257.     "  Perhaps  the  admissi- 
bility  of  statements  made  by  executors,  assignees,  and  others  filling  an  official  char- 
acter, but  before  they  were  invested  with  that  character,  will  be  found  to  depend  on 
the  nature  of  the  facts  stated  by  them.     So  an  admission,  before  probate,  by  an  ex- 
ecutor named  in  a  will  may  perhaps  be  entitled  to  more  consideration  than  the  ad- 
mission of  a  mere  stranger  who  has  afterwards  obtained  letters  of  administration." 
Rose.  N.  P.  72. 

5  1  Greenl.  Ev.  215,  §  176.     This  rule,  originally  founded  on  the  fact  that  other- 
wise those  not  admitting  might  be  rendered  personally  liable,  Hammon  v.  Huntley, 
4  Cow.  493,  has  been  reiterated  since  the  reason  failed.     Elwood  v.  Diefendorf,  5 
Barb.  407. 

6  Tullock  v.  Dunn,  Ry.  <fe  Moo.  416  ;    Bloodgood  v.  Brnen,  8  K  Y.  (4  Scld.)  362, 
rev*g  4  Sandf.  427.    Contra,  Shreve  v.  Joyce,  36  N.  J.  (7   Vroom),  44,8.  c.  13  Am. 
R  417.     Otherwise  of  an  act  such  as  part  payment,  made  before  the  statute  has  run. 
Heath  v  Grenell,  61  Birb.  190;  see  also  3  Wms.  Ex'ra,  6th  Am.  ed.  2063. 

1  Forsyth  v.  Ganson,  5  Wend.  558. 

8  Smith  v.  Smith,  3  Bing.  X.  C.  29,  8.  o.  7  C.  A  P.  401 ;  Cunningham  v.  Smith, 
7n  Penn.  St.  458,  citing  Newman  v.  Jenkins,  10  Pick.  615.  As  to  proving  a  trust,  com- 
pare ilarrisburgh  Bank  v.  Tyler,  3  Watts  <fc  S.  373 ,  Barker  v.  White,  58  N.  Y.  204. 


60  ACTIONS  BY  AND  AGAINST 

property  are  competent  on  the  inquiry  whether  the  administrator 
has  made  proper  effort  to  administer  the  estate ;  but  they  are  not 
binding,  as  declarations,  upon  the  administrator,  so  as  to  charge 
him  with  that  amount  ol  assets.  Upon  a  question  of  due  ad- 
ministration, an  executor  or  administrator  is  not  concluded  by  the 
statements  of  the;  deceased,  but  is  only  bound  to  a  faithful  at- 
tempt to  realize  the  largest  amount  from  the  assets  which  have 
come  to  his  knowledge.1  But  the  decedent's  admissions  and 
declarations  are  not  competent  in  favor  of  the  representative, 
unless  some  rule  of  evidence  would  admit  them  in  favor  of  the 
decedent  if  living,  as,  for  instance,  where  they  were  part  of  the 
res  gestce  of  an  act  properly  in  evidence.2 

The  delivery  01  property,  necessary  to  the  validity  of  a  gift 
in  view  of  death,  cannot  be  proved  by  subsequent  declarations  of 
the  deceased,  shortly  before  death,  to  a  person  not  connected 
with  the  gift.  But  subsequent  declarations  made  to  the  donee, 
are  competent.3  And  when  the  words  of  the  decedent  accom- 
panying the  gift  are  ambiguous,  parol  declarations  of  his  inten- 
tion, made  previously  or  afterward,  are  competent  to  explain  the 
intent.4 

9.  Judgments,'] — The  executor  or  administrator  is  bound  by  a 
judgment  recovered  by  or  against  the  decedent,  or  by  or  against 
the  representative's  predecessor  in  administration!5    And  where  an 
administrator,  or  administrator  with  the  will  annexed,  is  appointed 
here,  upon  application  of  the  foreign  executors  or  administrators 
of  the  same  decedent,  he  is  regarded  as  an  ancillary  administra- 
tor ;  and  a  decree  of  the  foreign  courts  of  competent  jurisdiction 
against  the  foreign  representatives  is  competent  and  prima  facie 
evidence  against  him.§ 

10.  Testimony  of  the  Representative^ — Where  an  executor  or 
administrator  is  examined  under  oath  by  an  adverse  party,  his 
whole  statement  must  be  taken  together ;  and  a  part  tending  to 
charge  him  cannot  be  separated  from  a  part  tending  to  explain  it 
and  operating  in  his  favor.7 

11.  Testimony  of  Interested  persons  against  the  estate.! — 
Since  the  common-law  incompetency  resulting  from  interest  nas 
been  removed,  the  question  of  the  value  of  an  interested  wit- 
ness' testimony  against  a  decedent's  estate  has  been  much  dis- 

1  Ginochio  v.  Porcella,  3  Bradf.  277,  280. 

8  Chase  v.  Ewing,  51  Barb.  597,  615;  Rickets  v.  Livingston,  2  Johns.  Cas.  97; 
Cheesemaa  v.  Kyle,  15  Ohio  St.  15. 

3  1  Wras.  Ex*rs,  6th  Am.  ed.  858,  n.     Compare  Hunter  v.  Hunter,  19  Barb.  631. 

4  Smith  v.  Maine,  25  Barb.  33,  48.     As  to  proving  a  gift,  see  also  p.  4  of  this  vol. 

5  Steele  v.  Lineberger,  59  Penn.  St.  308,  313 ;    Manigault  v.  Deas,  1  Bailey  Eq. 
283,  295;  3  Wms.  Ex'rs,  6th  Am.  ed.  2116. 

8  Cummings  v.  Banks,  2  Barb.  602 ;  and  see  26  N.  Y.  146 ;  and  is  conclusive 
here  on  the  parties  to  the  foreign  suit.  3  Bradf.  233. 

1  Ogilvie  v.  Ogilvie,  1  Bradf.  356.  For  the  limits  of  this  rule,  see  Rouse  v. 
Whited,  25  N.  Y.  170,  rev'g  26  Barb.  279. 


EXECUTORS  AND  ADMINISTRATORS.  61 

cussed.  The  English  courts,  without  any  express  statute,  hold 
that  the  testimony  of  a  party  to  personal  transactions  with  the  de- 
ceased, which  exonerate  himself,  is  not  sufficient,  at  least  in  equity, 
to  sustain  a  decree,  unless  corroborated.1 

The  general  policy  of  the  American  statutes  is  to  restrain  the 
admission  of  the  testimony  of  a  party  or  interested  witness,  as 
against  the  estate  of  a  deceased  person  or  the  interest  of  one  suc- 
ceeding to  his  right.  The  ground  of  the  rule  is,  that,  although 
parties  and  interested  witnesses  are  made  generally  competent, 
some  exception  should  be  made  where  the  adversary  in  the  con- 
troversy is  deceased.  The  law  prefers  to  admit  all  parties  ;  but 
when  death  silences  one,  the  law  will  silence  the  other  as  to  mat- 
ters peculiarly  within  their  sole  knowledge.  The  statutes  for 
this  purpose  are  very  diverse.  Some  reach  the  result  by  forbid- 
ding parties  and  interested  witnesses  from  testifying  in  all  actions 
where  the  opposite  party  is  an  executor  or  administrator.  Others 
where  the  action  is  on  a  contract,  &c.,  with  one  since  deceased. 
Others  attempt  to  define  the  line  with  more  discrimination. 
Where  the  statute  is  a  mere  proviso  or  saving  clause  in  the  act 
abolishing  the  common-law  disqualification  of  interest,  it  does  not 
make  incompetent  such  testimony  as  would  be  competent  at  com- 
mon law ; 2  but  where  it  is  a  new,  independent  and  affirmative 
provision,  it  does  exclude  the  kind  of  testimony  described  by  it, 
although  such  as  would  have  been  previously  competent.3  What- 
ever be  the  frame  of  the  statute,  its  object  and  the  general  guide  in 
its  construction  is  to  apply  the  exclusion  in  such  manner  as  to  put 
both  parties  on  an  equality ; 4  but  the  court  will  not  do  violence 
to  the  plain  language  of  the  statute  for  the  purpose  of  securing 
this  effect.5  Difficulties  of  this  kind'  are  less  frequent  in  propor- 
tion as  the  statute  is  so  framed  as  to  define  the  exclusion  by  the 

1  Hill  v.  "Wilson,  L.  R.  8  Ch.  App.  888,  s.  c.  7  Moak's  Ens?.  449 ;  Gray  v.  Warner, 
L.  R.  Iti  Eq.  577,  s.  P.  7  Moak's  Eng.  591.     "Nobody  would  he  safe  in  respect  to  his 
pecuniary  transactions,  if  legal  documents  found  in  his  possession  at  the  time  of  his 
death,  and  endeavored  to  be  enforced  by  his  executors,  could  be  set  aside,  or  varied, 
or  altered,  by  the  parol  evidence  of  the  person  who  had  bound  himself.     It  would  be 
very  easy,  of  course,  for  anybody  who  owed  a  testator  a  debt  to  say,     *      *     *     * 
'  i  met  the  testator  and  gave  him  the  money.'    The  interests  of  justice  and  the  inter- 
ests of  mankind  require  that  such  evidence  should  be  wholly  disregarded."    JAMES, 
L.  J.,  in  Hill  v.  Wilson  (above).     Contra,  Ford  v.  Haskell,  32  Conn.  489,  492,  where 
the  court  say  it  is  a  question  of  credibility,  as  in  case  of  testimony  of  an  accomplice 
in  a  criminal  case. 

2  Sheetz  v.  Norris,  2  Weekly  Notes  (Pa.)  637.     The  common-law  exception,  from 
necessity,  in  case  of  contents  of  baggage,  <fec.,  was  admitted  in  Sykes  v.  Bates,  26 
Iow;>,  521,  s.  P.  Nash  v.  Gibson,  16  Id.  805. 

3  Mattoon  v.  Young,  45  N.  Y.  696. 

4  McGeehee  v.  Jones,  41  Geo.  123;   Brown  v.  Brightman,  11  Allen  (Mass.)  220; 
Louis  v.  Easton,  50  Ala.  470 ;   Jones  v.  Jones,  36  Md.  457 ;    Poe  v.  Domic,  54  Mo. 
124  ;  Hubbell  v.  Hubbell,  22  Ohio  St.  208  ;    Key  v.  Jones,  62  Ala.  238  ;    Latimer  v. 
Sayre,  45  Geo.  468. 

6  For  cases  where  the  courts  have  refused  to  do  so,  see  Brown  v.  Lewis,  9  R.  L 
497;  Roberts  v.  Yarboro,  41  Tex.  451 ;  Howe  v.  Merrick,  11  Gray  (Mass.)  129; 
Ballon  v.  Tilton,  52  N.H,  607;  Graham  v.  Howell,  50  Geo.  203;  Crawford  v.  Robie, 
42  N.  H.  162. 


62  ACTIONS  BT  AND  AGAINST 

kind  of  testimony  rather  than  by  the  class  of  actions  or  parties. 
The  New  York  statute,  and  those  modeled  from  it,  have  been  the 
most  successful  in  this  respect.  That  act  addresses  the  prohibi- 
tion to  the  actual  source  of  danger,  viz.,  the  version  by  an  inter- 
ested person,  of  his  interview  with  one  who  can  no  longer  contra- 
dict him.  To  prevent  evasion,  the  prohibition  is  made  applicable 
not  only  to  parties  on  the  record  and  parties  having  an  interest  in 
the  result,  but  to  assignors  and  others  through  whom  a  party 
claims.  To  prevent  unequal  application,  it  is  not  enforceable 
against  one  side  when  the  other  side  has  put  forward  the  testi 
mony  of  the  person  since  deceased. 

12.  The  New  York  rule.'] — The  statute  is  as  follows :  "  Upon 
the  trial  of  an  action  or  the  hearing  upon  the  merits  of  a  special 
proceeding,  a  party  or  a  person  interested  in  the  event,  or  a  per- 
son from,  through  or  under  whom  such  a  party  or  interested 
person  derives  his  interest  or  title,  by  assignment  or  otherwise, 
shall  not  be  examined  as  a  witness,  in  his  own  behalf  or  interest, 
or  in  behalf  of  the  party  succeeding  to  his  title  or  interest,  against 
the  executor,  administrator,  or  survivor  of  a  deceased  person,  or 
the  committee  of  a  lunatic,  or  a  person  deriving  his  title  or  in- 
terest from,  through,  or  under  a  deceased  person  or  lunatic,  by 
assignment  or  otherwise;  concerning  a  personal  transaction  or 
communication  between  the  witness  and  the  deceased  person  or 
lunatic ;  except  where  the  executor,  administrator,  survivor,  com- 
mittee, or  person  so  deriving  title  or  interest  is  examined  in  his 
own  behalf,  or  the  testimony  of  the  lunatic  or  deceased  person  is 
given  in  evidence,  concerning  the  same  transaction  or  communica- 
tion." * 

13.  What  Parties  are  excluded.'} — A  party  to  the  action  or 
proceeding  cannot  be  thus  examined  in  his  own  behalf  or  inter- 
est, or  in  behalf  of  the  party  succeeding  to  his  title  or  interest.2 


1  N.  Y.  Code  Civ.  Pro.  §  829,  am'd'g  Code  of  Pro.  §  399.  The  act  does  not  disqual- 
ify from  making  an  affidavit.  By  recent  amendment,  "  the  husband  or  wife  of  a  party 
or  person  interested,  who  cannot  be  examined  concerning  a  transaction  or  communi- 
cation, as  prescribed  in  the  last  section,  cannot  be  examined  as  a  witness,  concerning 
the  same  transaction  or  communication ;  or  a  like  transaction  or  communication,  be- 
tween the  witness  and  the  deceased  person  or  lunatic."  Id.  §  830.  Compare  Tavlor 
v.  Kelly,  80  Pa.  St.  96. 

*  Where  the  statute  is  not  in  terms  restricted  to  a  party  called  on  his  own  behalf, 
<fcc.,  <fec.,  the  courts  do  not  restrict  it  by  construction,  but  exclude  a  party  called  for 
a  co-party.  Bennett  v.  Austin,  5  Hun,  536 ;  Alexander  v.  Dutcher,  7  Hun,  439 ; 
Blood  v.  Fairbanks,  60  Cal.  140 ;  and  even  though  he  has  no  interest  adverse  to  the 
executor  or  administrator,  as,  for  instance,  where  they  are  co-defendants,  Blood  v. 
Fairbanks  (above) ;  and  though  he  might  have  been  sued  separately,  e.  g.,  the  in- 
dorsc-r,  sued  with  the  maker.  Fox  v.  Clark,  61  Barb.  216,  n. ;  Alexander  v.  Dutcher 
(above).  The  better  opinion  is  that  after  an  action  against  two  has  been  practically 
severed  for  the  purposes  of  trial — for  example,  by  a  dismissal  of  the  action  against 
one  on  his  discharge  in  bankruptcy,  Hayden  v.  McKnight,  45  Geo.  147 ;  or  by  a 
judgment  against  them  on  default  being  opened  in  favor  of  one  only,  to  allow  him  to 
set  up  a  defense  personal  to  himself,  Simpson's  Exr.  v.  Bovard,  74  Penn.  St.  351, 
360— the  disqualification  of  the  one  who  will  not  be  affected  by  the  trial  is  ter- 


EXECUTORS  AND  ADMINISTRATORS.  63 

14.  What  Interested  Witnesses  are  excluded^ — T3o  person 
can  be  thus  examined  in  his  own  behalf  or  interest,1  or  in  behalf 
of  a  party  succeeding  to  his  title  or  interest,  if  he  or  his  prede- 
cessor in  interest  is,  at  the  time  of  the  trial,2  interested  in  the  event 
of  the  action  or  proceeding,  whether  directly  interested  in  the  cause 
of  action,  or  whether  merely  liable  to  be  legally  affected  by  the  judg- 
ment,— as,  for  instance,  where  he  stands  in  such  a  position  that 
the  effect  of  a  recovery  in  the  action  may  be  to  diminish  a  fund 
in  which  he  has  an  interest,3  or  may  aid  the  party  unsuccessful  in 
the  action  to  bring  and  maintain  an  action  against  the  witness  for 
indemnity ; 4  or,  to  take  another  instance,  where  the  effect  of  a 
recovery  may  be  to  exonerate  the  witness  from  liability  for  a 
tort,  by  giving  the  plaintiff  satisfaction  from  another  person.5 
But  interest  in  the  question  is  not  enough.  Thus,  where  the 
question  is  whether  a  deed  shall  be  set  aside  as  against  one  heir, 
another  heir,  not  a  party,  is  not  excluded.6  Nor  is  the  mere  fact 
that  the  witness  or  the  deceased  was  the*  agent  of  the  party  in 
making  the  very  contract  sued  on  sufficient  to  disqualify.7  A 
release  which  absolutely  extinguishes  the  interest  of  the  witness 
restores  competency,  where  the  disqualification  resulted  from 

ruinated ;  but  in  New  York,  on  the  contrary,  it  was  held  that,  though  the  court 
might  in  its  discretion  sever  the  action,  a  party  on  the  record  could  not,  so  long  as 
he  remained  a  party,  be  thus  examined,  against  or  for  another  party.  Genet  v. 
Lawyer,  61  Barb.  211  ;  and  the  fact  that  the  defendant  who  was  offered  as  a 
witness,  did  not  put  in  an  answer,  but  suffered  default,  did  not  sufficiently  sever 
the  action  or  discontinue  it  as  to  him.  Ib.  Nor  did  the  fact  that  the  plaintiffs 
executed  a  release  to  him  affect  the  question.  Ib.  In  Hubbell  v.  Hubbell,  22 
Ohio  St.  208,  226,  the  court  sanction  practically  severing  any  action  and  admitting 
the  evidence  against  one  and  excluding  it  as  against  the  other,  wherever  separate 
judgments  would  be  proper.  Under  a  statute  which  excludes  only  in  a  case  where 
judgment  might  be  rendered  for  or  against  an  executor  or  administrator,  it  is  held 
that,  on  the  entire  abatement  of  an  action  as  to  an  administrator  not  served,  or  as  to 
8  party  dying,  he  ceases  to  be  a  party  within  the  rule.  Hall  v.  The  State,  39  Ind. 
301 ;  Koberts  v.  Yarboro,  41  Tex.  451.  The  word  "party"  has  been  held  to  in- 
clude a  party  in  interest,  though  not  on  the  record.  Stallings  v.  Ilinson,  49  Ala.  92. 
Especially  if  his  interest  is  such  that  it  will  be  necessary  to  bring  him  in  as  a  party. 
McKaig  v.  Hebb,  42  Md.  227. 

1  Before  this  qualification  was  expressly  made,  it  was  held  that  the  fact  that  the 
interest  was  in  favor  of  the  executor  or  administrator  against  whom  the  witness  was 
called,  and  was  against  the  success  of  the  party  calling  him,  did  not  take  the  case 
out  of  the  statute.  Le  Clare  v.  Stewart,  8  Hun,  127. 

8  Farnsworth  v.  Ebbs,  2  Hun,  438,  s.  c.  5  Supra.  Ct.  (T.  A  C.)  1.  As  the  N.  Y. 
statute  now  refers  only  to  examination  at  the  trial  or  hearing,  it  may  perhaps  be 
claimed  that  such  testimony  may  be  taken  on  deposition,  and  the  question  of  its  com- 
petency determined  at  the  trial,  according  to  the  existence  of  interest,  <tc.,  at  the 
time  of  trial. 

3  Le  Clare  v.  Stewart,  8  Hun,  127 ;  but  the  statute  has  been  held  not  to  exclude 
the  foreign  administrator  of  the  same  decedent  in  a  suit  against  the  administrators 
here  appointed,  for  the  former  is  not  interested.     1  Whart.  Ev.  461,  §  471,  citing 
Stearns  v.  Wright,  51  N.  H.  606. 

4  Stallings  v.  Hinson,  49  Ala.  92 ;   "Wooster  v.  Booth,  2  Hun,  426.     Compare 
Cousins  v.  Jackson,  52  Ala.  262. 

&  Andrews  v.  Nat.  Bank  of  North  America  of  N.  Y.  7  Hun,  20. 
6  Hobart  v.  Hobart,  62  N.  Y.  83  ;  Hooper  v.  Howell,  52  Geo.  321. 
1  Scurry  v.  Cotton  States  Life  Ins.  Co.  51  Geo.  624  ;  Am.  Life  lus.  Co.  v.  Schultz, 
2  Weekly  Notes  (Pa.)  665  ;  Spencer  v.  Trafford,  42  Aid.  17. 


64:  ACTIONS  BY  AND  AGAINST 

being  interested,  but  not  where  it  resulted  from  the  mere  fact  of 
being  a  party.1 

15.  Assignor,  or  Source  of  Title,  excluded."] — No  person,  from, 
through,  or  under  whom  such  a  party  or  interested  person  de- 
rives his  interest  or  title,  by  assignment  or  otherwise,2  can  be  thus 
examined,  in  his  own  behalf  or  interest,  or  in  behalf  of  the  party 
succeeding  to  his  title  or  interest,3  if  the  interest  or  title  thus  de- 
rived is  in  the  particular  claim  affected  by  the  transaction  or  com- 
munication.4 

16.  What  Persons  are  Protected, .] — The  ground  of  the  exclu- 
sion is  the  intervening  incapacity  of  the  other  party  to  the  per- 
sonal transaction  or  communication.5    For  this  purpose,  death  is 
held  to  be  sufficiently  established  \>y  prima  facie  evidence, — for 
instance,  the  production  of  the  letters  under  which  the  repre- 
sentative acts.6    The  fact  that  the  action  is  in  the  name  of  the 
representative  for  formal  reasons,  although  the  estate  has  no  in- 
terest as  such,  does  not  alter  the  case,  if  the  interests  of  other  par- 
ties are  such  that  the  reasons  for  protection  equally  apply.7    And, 
on  the  other  hand,  the  prohibition  will  apply  for  the  protection  of 
the  estate,  though  the  representative,  being  a  party  as  such,  be 
also  made  a  party  individually ; 8  or,  though  he  be  sued  only  in 
his  individual  name,  if  he  might  have  been  sued  in  his  represent- 
ative character,  or  if  the  recovery  will  enhance  or  diminish  the 
estate.9    The  words  indicating  the  various  personal  relations  and 


1  Genet  v.  Lawyer,  61  Barb.  211. 

8  Even  where  the  statute  does  not  expressly  exclude  the  transferrer  of  the  cause 
of  action,  the  courts  have  sometimes  excluded  him,  upon  the  equity  of  the  statute. 
Louis  v.  Easton,  50  Ala.  470;  1  Whart.  Ev.  452,. §  473. 

3  The  owner  of  chattels  transferred  the  title,  and  became  agent  for  his  trans- 
feree, and  then  bailed  them  with  defendants  without  disclosing  his  agency.     Held, 
that  in  his  principal's  action  against  the  defendants,  he  could  not  testify  to  a  demand 
made  on  one  of  them  who  had  since  died.     Conway  v.  Moulton,  6  Hun,  650.     A 
partner  having  assigned  or  released  to  his  copartner  is  within  the  rule.     Lyon  v. 
Snyder,  61  Barb.  172.     A  child  emancipated  by  his  father  does  not  derive  title  to 
subsequent  earnings  "  from,  through,  or  under  "the  father,  in  such  sense  that  the 
father  is  incompetent.     Shirley  v.  Bennett,  6  Lans.  512. 

4  This  qualification  is  consonant  to  the  principle  of  the  statute,  and  seems  sup- 
ported by  the  doctrine  of  Cary  v.  White,  59  N.  Y.  336,  and  Van  Tuyl  v.  Van  Tuyl,  8 
Abb.  Pr.  N.  S.  5,  s.  c.  57  Barb.  235.     Contra,  Lyon  v.  Snyder,  above. 

&  See  paragraph  11,  above. 

6  Parhan  v.  Moran,  4  Hun,  717. 

1  Hollister  v.  Young,  41  Vt.  156. 

8  Dixon  v.  Edward,  48  Geo.  146.     Nor  does  the  fact  that  the  representative,  by 
verifying  his  pleading,  has,  by  virtue  of  a  statute,  cast  the  burden  of  proof  on  the 
other  party.     Ib. 

9  Louis  v.  Easton,  60  Ala.  470;  Fitzsimmons  v.  South  wick,  38  Vt.  514.     It  has, 
however,  been  held  that,  in  a  probate  proceeding,  the  executor  is  not  protected,  be- 
cause it  is  said  that  before  letters  issued,  he  is  not  a  party  as  such.     Hamilton  v. 
Hamilton,  10  R.  I.  538 ;  Dietrich's  Estate,  1  Tuck.  129.     On  the  other  hand,  it  has 
been  held  that  the  protection  in  favor  of  the  executor  or  administrator  must  be  ex- 
tended by  the  court  to  an  heir,  <fec.,  if  the  object  of  the  action  is  to  establish  a  liabil- 
ity of  the  decedent  or  a  benefit  to  his  estate.     Mountain  v.  Collins,  cited  in  50  Ala. 
472 ;  but  see  Bragg  v.  Clark,  50  Ala,  363. 


EXECUTORS  AND  ADMINISTRATORS.  65 

modes  of  succession  protected  by  the  statute,  are  liberally  con- 
strued in  furtherance  of  the  equity  of  the  rule ; 1  and  it  is  not 
essential  that  it  appear  in  which  of  several  classes  protected  by  the 
statute  the  objector  is,  if  his  right  or  liability  must  be  in  one  or 
another.2  But  the  only  derivative  title  regarded  is  one  held  by 
the  deceased  at  the  time  of  the  transaction,  and  subsequently  de- 
volved upon  the  objecting  party.3 

17.  Insanity.~\ — For  convenience  of  presenting  the  whole  stat- 
ute in  one  view,  its  application,  where  the  incapacity  is  mental, 
should  be  here  considered.     A  question  may  arise  as  to  what  de- 
gree of  insanity  will  bring  the  case  within  the  statute.     At  com- 
mon law,  the  insane  are  not  absolutely  disqualified  to  testify.    An 
insane  person  may  be  examined  as  a  witness  in  a  lucid  interval,  and 
may  then  testify  even  to  what  took  place  when  he  was  insane ; 
and  even  while  under  delusion,  may  be  examined  on  the  ground  of 
necessity,  especially  for  his  own  protection,  and  for  the  redress  of 
an  injury  to  himself.     If  the  person  is  insane  within  the  meaning 
of  the  language  of  the  rules  of  evidence  as  to  witnesses,  testimony 
of  the  interested  witness  should  not  be  admitted  under  the  stat- 
ute.4   And  even  if  not,  the  existence  of  an  inquisition  or  the  ap- 
pointment of  a  guardian  ad  litem  in  the  action,  on  the  ground  of 
insanity,  is  prima  facie,  though  only  prima facie,  evidence  of  in- 
capacity to  testify.5 

18.  Objecting   to   the  Testimony."] — The  interested  witness, 
when  offered,  should  not  be  excluded  merely  because  he  is  called 
against  an  executor  or  administrator,  &c.,  unless  it  is  clear  that  if 
sworn  he  could  not  testify  to  anything ;  until  that  appears,  it  is 
error  to  exclude  him 6  under  such  a  statute  as  that  of  ]>  ew  York, 
where,  strictly  speaking,  the  incompetency  is  not  that  of  the  wit- 


1  Thus,  a  husband,  claiming  by  marital  right  of  succession,  has  been  treated  as  if 
he  were  next  of  kin  to  his  wife.  Dewey  v.  Goodenough,  56  Barb.  54.  The  term 
"  heir  "  extends  to  heirs  of  deceased  heirs  claiming  by  representation.  Merrill  v. 
Atkins,  59  111.  19.  "  Survivor  "  protects  a  surviving  partner.  Green  v.  Edick,  56 
N.  Y.  613 ;  and  "  assignees  "  includes  grantees  of  land.  Mattoon  v.  Young,  45  N.  Y. 
696;  and  donees  of  personalty.  Howell  v.  Taylor,  11  Hun,  214.  A  bank  making  a 
loan  on  stock  borrowed  by  an  officer  and  pledged  for  his  own  benefit,  under  a  rep- 
resentation that  the  loan  was  for  a  third  person, — Held,  an  assignee  of  its  officer 
within  the  rule.  Andrews  v.  Nat.  Bank  of  N.  Am.  7  Hun,  20.  But  a  creditor,  tak- 
ing a  collateral  security  by  an  assignment  from  a  third  person,  obtained  for  him  by 
his  debtor,  is  not  an  assignee  of  the  debtor  within  the  rule.  Barney  v.  Equitable  Lifa 
Assur.  Soc.  59  N.  Y.  587.  If  defendant  in  trespass  justifies  as  having  entered  as  the 
agent  of  the  true  owners,  who  claim  under  a  deceased  person,  plaintiff's  grantor 
cannot  testify  against  defendant  to  conversations  with  the  deceased.  \Vheelock  v. 
Cuyler,  4  Hun,  414. 

8  See  Mosner  v.  Raulain,  66  Barb.  213. 

8  Cary  v.  White,  59  N.  Y.  336. 

*  For  these  rules  see  People  ex  rel.  Norton  v.  N.  Y.  Hospital,  3  Abb.  New  Cases, 
229,  note. 

6  Id. ;  Little  v.  Little,  13  Gray,  264. 

6  Card  v.  Card,  39  N.  Y.  317;  and  see  Martin  v.  Jones,  59  Mo.  187;  Leaptrol  v. 
Robertson,  37  Geo.  586. 


66  ACTIONS  BY  AND  AGAINST 

ness,  but  of  his  testimony  to  particular  facts.1    Hence  a  general 
objection  is  not  enough.2 

19.  Preliminary  question  of  Competency^,— Whenever  it  ap- 
pears that  a  witness  who  is  within  the  statute  is  about  to  testify 
to  an  interview  at  which  the  deceased  may  have  been  present,  the 
question  whether  the  examination  proposed  relates  to  a  personal 
transaction  or  communication  between  them,  is,  in  strictness,  one 
of  preliminary  proof,  addressed  to  the  judge,  for  the  purpose  of 
determining  which,  the  witness  may  testify  either  negatively  or 
affirmatively  as  to  whether  the  deceased  was  present,  and  if  so, 
whether  anything  passed  between  him  and  the  deceased,  and  for 
this  purpose  may  be  asked  such  questions  as  are  necessary  to  as- 
certain whether  he  merely  overheard  the  conversation,  or  whether 
he  was  privy  to  it ; 8  and  the  objecting  party  may  be  allowed  to 
interpose  with  evidence  to  the  contrary,  to  enable  the  judge  to  de- 
termine whether  the  witness  could  testify  to  what  passed  at  the 
interview.     But  in  ordinary  practice,  the  examination  is  allowed 
to  proceed  as  evidence  for  the  jury,  until  it  appears  that  the  wit- 
ness is  stating  a  personal  transaction  or  communication  between 
him  and  the  deceased  ;  whereupon  all  the  testimony  vitiated  by 
this  fact  will  be  struck  out,  if  a  proper  and  timely  objection  is 
made.     The  principle  is  the  same  under  any  statute  which  treats 
the  witness  as  compejbent  generally,  but  incompetent  as  to  partic- 
ular facts. 

20.  Moving  to  Strike  Out  Incompetent  part  of  testimony^ — 
If  a  witness  is  inquired  of  generally  as  to  a  transaction,  by  a 
question  not  indicating  that  it  was  a  personal  transaction  or  com- 
munication with  the  deceased,  he  may  properly  be  allowed  to  an- 
swer, reserving  to  the  objecting  party  the  right  to  move  to  strike 
out,4  and,  if  the  testimony  proves  incompetent,  the  motion  to 
Btrike  out  must  be  made  at  or  before  the  close  of  the  direct  ex- 
amination.    Cross-examining  the  witness  at  large  waives  the  mo- 
tion to  strike  out.5    If,  however,  the  testimony  does  not  show  a 
personal  transaction  or  communication — for  example,  if  it  simply 
states  that  the  witness  had  paid  what  was  due  to  the  deceased — it 
is  not  to  be  struck  out,  unless  on  cross-examination  the  objector 
elicits  the  facts  showing  its  incompetency ;  then  it  must  be  stricken 


1  But  where  the  statute  makes  a  general  exclusion  of  the  opponent  of  an  executor 
or  administrator,  with  specified  exceptions,  an  offer  of  the  testimony  should  show 
that  it  is  within  the  exception.     White  v.  Brown,  5  Reporter,  171 ;  Hanna  v.  Mc- 
Vay,  77  Pa.  St.  27,  31 ;  and  see  Stewart  v.  Kirk,  69  111.  512. 

2  Lewin  v.  Russell,  42  N.  Y.  251.    Compare  Somerville  v.  Crook,  9  Hun,  668. 

8  Otherwise  any  testimony  might  be  objected  to  on  the  ground  that  if  the  de- 
ceased were  alive  he  might  contradict  it.  Isenhour  v.  Isenhour,  64  N.  C.  640; 
Brower  v.  Hughes,  Id.  642.  The  statute  was  not  designed  to  exclude  the  testimony 
of  a  party,  to  an  occurrence  at  which  the  deceased  need  not  have  been  present. 
Franklin  v.  Pinkney,  18  Abb.  Pr.  186,  s.  c.  2  Robt.  429. 

4  Kerr  v.  McGuire,  28  N.  Y.  446,  452.  Compare  Howell  v.  Van  Sicklen,  6  Hun, 
115,  120. 

*  King  v.  Haney,  46  Cal.  560,  s.  c.  13  Am.  R.  217. 


EXECUTORS  AND  ADMINISTRATORS.  67 

out ;  and  the  circumstance  that  the  cross-examination  had  not  been 
confined  to  this  point,  does  not  preclude  the  objector  from  mov- 
ing to  strike  out  pll  the  incompetent  testimony.1 

21.  Proof  of  an  Interview.'] — Under  the  New  York  statute, 
and  others  which  simply  exclude  all  examination  in  regard  to  any 
personal  transaction  or  communication,  if  the  mere  fact  that  a 
conversation  was  had  between  the  witness  and  the  deceased  be 
the  material  fact,  it  may  be  error  to  allow  the  witness  to  state 
even  that ;  but  ordinarily,  where  the  material  fact  is  the  substance 
of  the  interview  itself,  it  is  not  error  to  allow  the  examination  to 
proceed  so  far  as  to  state  that  an  interview  was  liad,  without 
proving  what  was  said  or  done.*     The  ordinary  test  is,  does  the 
testimony  tend  to  prove  what  the  transaction  was  which  was  had 
personally  by  him  with  the  deceased.3    The  exclusion  is  not,  how- 
ever, merely  of  testimony  to  prove  what  took  place.     It  is  equal- 
ly incompetent  to  disprove  all  intercourse  as  to  prove  a  particulai 
transaction.      Testifying  that  there  never  was  an  interview  is 
equally  testifying  "  in  regard  to  "  the  supposed  communications,  as 
is  testifying  to  what  took  place  at  an  alleged  interview.4     This 
may  seem  inconsistent  with  what  has  just  been  said  about  testify- 
ing to  the  fact  of  an  interview,  when  only  the  conversation  is 
material,  and  about  testifying  that  the  deceased  was  not  present 
at  an  act,  or  that  a  communication  when  he  was  present  was  not 
personal,  between  him  and  the  witness ;  but  the  distinction,  though 
refined,  is  clear.     If  what  passed  at  the  interview  is  the  material 
fact,  a  witness  who  testifies  only  that  an  interview  was  had,  but 
does  not  say  what  passed,  is  not  considered  as  having  testified  in 
regard  to  the  alleged  personal  transaction  or  communication.  But 
if  lie  is  allowed  to  testify  that  no  interview  ever  took  place,  he 
does  negative  the  supposed  personal  transaction  or  communica- 
tion.    Proving  an  interview  merely,  does  not  prove  personal  com- 
munication ;  but  disproving  all  interview  does  disprove  personal 
communication.     Hence  the  rule  that  the  witness  cannot  testify, 
even  negatively,  as  to  interviews. 

22.  What  is  a  Personal  Transaction  or  Communication^ — 
The  interview,  to  be  excluded,  must  have  been  a  personal  one. 
An  interview  solely  with  an  agent  since  deceased,  is  unaffected 
by  the  statute.5    What  constitutes  a  personal   "transaction  or 


1  Kerr  v.  McGuire  (above). 
s  Hier  v.  Grant,  47  N.  Y.  278. 

3  Strong  v.  Dean,  55  Barb.  837. 

4  Clarke  v.  Smith,  46  Barb.  30;  Dyer  v.  Dyer,  48  Id.  190;  Stanley  v.  Whitney, 
47  Id.  586.     Thus  the  witness  cannot  testify  that  he  never  paid  money  to  the  de- 
ceased, or  that  the  deceased  never  paid  money  to  him.     The  rule  excludes  testimony 
that  an  alleged  personal  transaction  or  communication  was  never  had.     Howell  v. 
Van  Siclen,  6  Hun,  115  ;  Barrett  v.  Carter,  3  Lans.  68  ;  or  that  witness  did  not  see, 
or  did  not  have  a  transaction  with,  the  deceased.     Mulqueen  v.  Duffy,  6  Hun,  299. 

8  Ilildebrant  v.  Crawford,  65  N.  Y.  107,  affi'g  6  Lans.  602;  Am.  Life  Ins.  Co.  v. 
Shultz,  2  Weekly  Notes  (Pa.)  665;  Cheney  v.  Pierce,  88  Vt.  515,  588.    But  under 


68  ACTIONS  BY  AND  AGAINST 

communication  "  is  not  to  be  defined  in  the  abstract.1  The  stat- 
ute is  aimed  at  the  abuse  which  might  result,  if,  when  the  lips  of 
one  party  to  an  alleged  interview  have  been  sealed  by  death,  the 
persons  deriving  from  him  rights  which  he  held  at  the  time  of 
the  interview,  could  be  prejudiced  by  the  testimony  of  interested 
persons,  as  to  what  took  place,  or  did  not  take  place  between  them 
there.  The  statute  is  not  confined  to  private  communications  and 
interviews,  of  which  there  were  no  other  witnesses ;  but  applies 
to  all  personal  communications,  though  made  in  the  presence  of 
others  who  might  be  called  as  witnesses.2  But,  on  the  other 
hand,  it  applies  only  to  such  communications  and  transactions  as 
involved  the  witness  as  a  party  thereto.  The  question  is,  are  the 
circumstances  such  as  to  indicate  that  in  the  consciousness  of  the 
deceased  and  the  witness,  there  was  any  privity  between  them 
in  the  transaction  or  communication.8  If  the  witness  merely 
overheard  what  went  on  solely  between  the  deceased  and  a  third 
person,  he  is  competent.4  And  this  rule  has  been  applied  even 
where  the  conversation  was  an  admission  by  the  deceased  of  his 
previous  transactions,  with  the  witness.5  But  if  in  even  a  part  of 
the  conversation  the  witness  took  part,  or  even  was  included  as 
one  to  whom  the  words  of  the  deceased  were  addressed,  or  for 
whose  ear  they  were  in  part  intended,  he  cannot  testify  to  that 
part,6  but  may  to  any  other  separable  part.7 

23.  Indirect  evidence.'] — The  prohibition  is  not  to  be  evaded 
by  questions  of  a  general  form,  such  as  whether  the  witness  was 
in  the  habit  of  borrowing  from  the  deceased,  where  such  habit 
might  form  a  ground  of  presumption  as  to  what  passed  at  a  sup- 


statutes  which  exclude  the  surviving  party  to  a  contract,  the  death  of  a  contracting 
agent  has  been  thought  to  exclude  the  surviving  party  who  contracted  with  him.  1 
Whart.  Ev.  451,  §  469,  citing  First  Nat.  Bk.  v.  Wood,  26  Wis.  500.  Where  the  ac- 
tion was  by  A.  to  reform  his  deed  to  B.  and  B.'s  to  C.,  HeJ4,  that  A.  might  testify  to 
what  occurred  between  him  and  B.,  although  C.  was  dead.  Payne  v.  Elyea,  50  Geo. 
395. 

1  Birth  is  not  a  "  transaction  "  between  mother  and  child  within  the  statute,  so  as 
to  prevent  the  mother  from  testifying  to  it,  against  the  child's  executor.  Matter  of 
Paige,  62  Barb.  476.  As  to  marriage,  see  Spicer  v.  Spicer,  16  Abb.  Pr.  N.  8.  113. 

?  Hatch  v.  Peugnet,  64  Barb.  189. 

3  Brague  v.  Lord,  2  Abb.  New  Cases,  1 ;  Johnson  v.  Spies,  5  Hun,  471. 

4  Simmons  v.  Sisson,  26  N.  Y.  264;  Lobdell  v.  Lobdell,  36  N.  Y.  327,  s.  c.  4  Abb. 
Pr.  N.  S.  56 ;  Sanford  v.  Sanford,  61  Barb.  293. 

6  Hildebrant  v.  Crawford,  6  Lans.  502,  affi'd  in  65  N.  Y.  107.  So  under  the  Illi- 
nois statute  allowing  exception  as  to  "  facts  occurring  after  the  death  of  the  de- 
ceased," evidence  of  admissions  made  by  a  party  after  the  death,  as  to  previous  facts, 
is  competent.  Stewart  v.  Kirk,  69  111.  512. 

6  As,  for  instance,  one  who  went  to  the  interview  for  the  purpose  of  hearing  it, 
and  participated  in  the  negotiation — as  where  a  wife  went  with  her  husband  when  he 
negotiated  a  loan  on  mortgage,  and  joined  in  the  mortgage  to  release  her  dower. 
Farnsworth  v.  Ebbs,  2  Hun,  438,  s.  c.  5  Snpm.  Ct.  (T.  &  C.)  1 ;  or  where  the  de- 
ceased, in  speaking  to  a  third  person,  mentioned  the  witness,  turning  partly  towards 
him,  to  include  him,  as  it  were,  in  the  communication,  Brague  v.  Lord  (above). 

'  Gary  v.  White,  59  N.  Y.  336. 


EXECUTORS  AND  ADMINISTRATORS.  69 

posed  interview ; *  nor  is  it  disregarded  because  testimony  to  facts 
necessarily  or  presumptively  importing  personal  communications 
does  not  specify  any  particular  interview.  Thus,  a  physician  or 
attorney  is  incompetent  to  prove  bis  own  services  as  such  to 
the  deceased,  as  against  the  representative.2  But  the  witness  may 
prove  an  act  by  any  circumstances  which  do  not  tend  to  do  so  by 
merely  raising  a  presumption  of  a  personal  transaction  or  com- 
munication between  him  and  the  deceased.  Thus  he  may  testify 
to  the  admissions  of  the  representative  or  heir,  raising  a  presump- 
tion of  payment  to  the  ancestor.3 

The  exclusion  of  the  transaction  or  communication  excludes 
all  the  incidents  of  it,4  so  far  as  they  are  connected  with  what 
affected  the  witness  and  the  deceased  together. 

24:.  Effect  of  Objecting  Party  testifying^  cfec.] — "Where  the 
party  for  whose  protection  the  statute  declares  the  testimony  in- 
competent, is  examined  in  his  own  behalf  as  to  the  transaction 
or  communication  in  question,  or  where  the  testimony  of  the 
deceased  or  lunatic  as  to  it  is  given  in  evidence,5  by  the  party 
adverse  to  the  one  calling  the  witness,6  the  prohibition  does  not 
apply ;  and  this  qualification  is  to  be  taken  in  connection  with 
the  general  principle,  that  a  party  who  puts  in  evidence  concedes 
the  right  of  the  adverse  party  to  tread  the  same  ground  in  rebut- 


1  Alexander  v.  Dutcher,  7  Hun,  439.    But  compare  Kerr  v.  McGuire,  28  N.  Y. 
452. 

2  Ross  v.  Ross,  6  Hun,  182  ;  Somerville  v.  Crook,  9  Hun,  664.     A  party  is  com- 
petent against  an  administrator  to  identify  his  shop  books  offered  in  evidence.    Strick- 
land v.  VVynn,  51  Geo.  600 ;  Leggett  v.  Glover,  71  N.  C.  211 ;  Kelton  v.  Hill,  58  Me. 
115.     If  the  books  can  be  deemed  admissible  as  at  common  law,  notwithstanding 
the  death  of  the  other  party  to  the  transactions,  they  should  be  introduced  only  upon 
the  common-law  proof  of  accuracy,  <fcc.     Knight  v.  Cunnington,  6  Hun,  100,  105.     It 
has  even  been  said  that  a  witness  who  cannot  prove  a  personal  transaction,  is  equally 
incompetent  to  prove  any  state  of  facts  from  which  such  transaction  might  be  pre- 
sumed,— for  instance,  that  to  raise  a  presumption  that  he  had  made  payments  to  the 
deceased,  he  could  not  testify  that  the  deceased  had  no  other  sources  of  income  than 
such  payments.     Jaques  v.  Elmore,  7  Hun,  675. 

'  Card  v.  Card,  39  N.  Y.  317. 

4  The  witness  cannot  testify  even  to  the  fact  that  he  carried  an  inkstand  with  him 
when  he  had  a  personal  interview  with  deceased.  Dubois  v.  Baker,  30  N.  Y.  355, 
affi'g  40  Barb.  556.  The  fact  he  saw  an  instrument  in  the  possession  of  the  assignee 
of  the  deceased,  was  held  not  incompetent,  in  Smith  v.  Sergent,  2  Hun,  107.  So  of 
his  testimony,  that  a  document  produced  was  a  copy  of  a  paper  he  obtained  from  the 
deceased.  Moulton  v.  Mason.  21  Mich.  371.  Testimony  that  he  had  seen  the  de- 
ceased sign  a  paper  was  held  incompetent,  in  Den  man  v.  Jayne,  16  Abb.  Pr.  N.  S. 
817,  on  the  authority  of  Ressiqne  v.  Mason,  58  Barb.  89,  which  has  been  superseded 
by  amendment  of  the  statute.  The  rule  has  been  pressed  so  far  as  to  exclude  the 
witness  from  testifying  to  his  own  undisclosed  intent  in  making  a  transfer  to  the  de- 
ceased. Tooley  v.  Bacon,  8  Hnn,  176,  70  N.  Y.  87.  But  this  conclusion  is  to  be  ac- 
cepted with  caution.  Intent  communicated  to,  or  even  legally  presumable  to  have 
been  shared  by  the  deceased,  at  thj  interview,  could  not  be  proved  by  the  witness ; 
but  if  the  transfer  is  proven  aliunde,  an  undisclosed  intent  is  no  part  of  the  communi- 
cation or  transaction  between  them,  and,  if  relevant  (see  40  N.  Y.  221)  might  be 
proved  by  the  wituess. 

*  As,  for  instance,  by  deposition,  Munn  v.  Owens,  2  Dili  C.  Ct.  477 ;  Munroe  v. 
Napier,  62  Geo.  388. 

«  Miller  v.  Atkins,  9  Hun,  9. 


70  ACTIONS  BY  AND  AGAINST  EXECUTORS,  <fec. 

tal,  so  far  as  it  can  be  done  without  violating  a  positive  prohib- 
itory statute.1  But  the  fact  that  a  third  person  interested  in  the 
estate  has  testified  for  the  representative  does  not  open  the  door 
for  the  adversary.  It  is  only  giving  the  testimony  of  the  de- 
cedent or  incompetent  person,  or  of  the  representative  who  is  a 
party,  that  entitles  the  adversary  to  put  in  that  of  the  interested 
witness.2  And  giving  testimony  as  to  one  transaction  or  com- 
munication does  not  relieve  the  adversary  from  the  prohibition 
in  respect  to  a  distinct  and  independent  communication.8 

25.  Farm  of  Offer  of  testimony  in  rebuttal.'] — Where  the 
door  is  opened  for  the  testimony  of  the  party  or  interested  wit- 
ness, by  the  giving  of  that  of  the  other,  the  offer  need  not  be 
confined  to  the  disputable  part  of  the  testimony  which  has  been 
given.   In  this  case,  as  in  the  case  of  an  offer  in  the  first  instance, 
the  witness  may  be  sworn  unless  it  appears  that  he  could  testify 
to  nothing ;  and  his  examination  should  be  restricted  to  the  mat- 
ters as  to  which  the  objecting  party  has  given  the  evidence.4 

26.  The   United  States  Courts  rule.'] — In  the  courts  of  the 
United  States,  no  witness  can  be  excluded  "  in  any  civil  action, 
because  he  is  a  party  to  or  interested  in  the  issue  tried  :  Pro- 
vided, that  in  actions  by  or  against  executors,  administrators,  or 
guardians,  in  which  judgment  may  be  rendered  for  or  against 
them,  neither  party  shall  be  allowed  to  testify  against  the  other, 
as  to  any  transaction  with,  or  statement  by,  the  testator,  intestate, 
or  ward,  unless  called  to  testify  thereto  by  the  opposite  party,  or 
required  to  testify  thereto  by  the  court.     In  all  other  respects, 
the  laws  of  the  State  in  which  the  court  is  held  shall  be  the  rules 
of  decision  as  to  the  competency  of  witnesses  in  the  courts  of  the 
United  States  in  trials  at  common  law,  and  in  equity  and  admi- 
ralty." 5  

1  Where  one  party  gave  evidence  of  admissions  made  by  the  grantor  of  the  other, 
— Held,  that  the  grantor  could  testify  to  rebut  this  evidence,  although  it  related  to 
transactions  with  a  deceased  person  through  whom  the  former  claimed  title.     Cole  v. 
Denue,  3  Hun,  610.     Where  testimony  to  oral  declarations  of  the  Meceased  was  ad- 
mitted,— Held,  that  counter  declarations  in  writing  were  admissible.     Smith  v.  Chris- 
topher, 16  Abb.  Pr.  N.  S.  332.     Plaintiff  having  put  in  evidence  letters  by  defendant 
to  a  person  since  deceased, — Held,  that  defendant  was  entitled  to  give  testimony  ex- 
plaining away  the  letters,  although  such  testimony  related  to  a  transaction  with  the 
deceased.     Sanford  v.  Sanford,  61  Barb.  293.     If  the  executor  or  administrator  testi- 
fies to  an  admission  by  the  plaintiff  that  the  demand  had  been  satisfied  by  the  deced- 
ent, plaintiff  can,  by  way  of  explaining  or  contradicting  the  testimony,  testify  that  no 
such  settlement  was  made.     Cousins  v.  Jackson,  52  Ala.  265.     If  a  witness  testifies 
that  a  party  admitted  certain  transactions  with  the  deceased,  the  party  may  contra- 
dict this.     Martin  v.  Jones,  59  Mo.  1 87. 

2  Canaday  v.  Johnson,  40  Iowa,  687. 

8  Goodwin  v.  Hirsche,  37  Super.  Ct.  (J.  A  S.)  511. 

4  Brown  v.  Richardson,  20  N.  Y.  472,  rev'g  1  Bosw.  402. 

&  U.  S.  R.  S.  §  858.  Under  this  act,  if  the  decedent  had  been  examined  in  his  own 
behalf,  and  his  deposition  was  read  on  the  trial,  by  his  representative,  the  adverse 
party  is  competent  on  his  own  behalf.  Mumm  v.  Owens,  2  DilL  C.  Ct.  475.  But  an 
ex  parte  order  obtained  by  a  party  before  process  issued,  for  his  own  examination,  ia 
Hot  the  requirement  of  the  court  intended.  Eslava  v.  Mozange,  1  Woods,  623. 


CHAPTEE  V. 


ACTIONS   BY    AND   AGAINST   HEIRS  AND   NEXT   OF  KIN,  DEVISEES 

AND    LEGATEES. 


I.  DEATH. 

1.  Direct  testimony. 

2.  Registry  of  death  or  burial. 

3.  Presumptions  of  death,  and  of  the 

time  of  death. 

4.  Circumstances   raising  a  natural 

presumption  of  death. 
6.  Voyages  and  other  special  perils. 

6.  Seven  years'  absence  in  case  of 

life-estates. 

7.  Seven  years'  rule  in  other  cases. 

8.  Absence  and  inquiry. 

9.  Rebutting  the  presumption. 

10.  Time  of  presumed  death. 

11.  The  English  rule. 

12.  The  contrary  rule. 

13.  Survivorship  in  common  casualty. 

II    MARRIAGE. 

14.  Burden  of  proof  and  presumptions. 
16.  Direct  evidence  of  marriage. 

16.  Certificate  or  registry. 

17.  Indirect  evidence  of  marriage. 

18.  Cohabitation  and  repute. 

19.  Cohabitation  and  declarations. 

20.  Marriage  after  meretricious  inter- 

course. 

21.  Second  marriage  during  absence. 

22.  Rebutting  evidence  of  marriage. 

23.  Foreign  la\v. 

III.  ISSUE  AND  FAILURE  OF  ISSUE. 

24.  Burden  of  proof. 

25.  Presumptions  as  to  failure  of  issue. 

26.  Escheat. 

27.  Possibility  of  issue  extinct. 

28.  Registry  of  birth  or  baptism. 

29.  Consorting  as  a  family. 
80.  Direct  testimony  as  to  age. 

31.  Physician's  testimony  or  account. 
82.  Legitimacy:  Burden  of  proof  and 
presumptions. 

33.  Parents'   testimony  and    declara- 

tions. 

IV.  HEARSAY  AS  TO  FACTS  OF  FAMILY  HIS- 

TORY (PEDIGREE). 

34.  Grounds  of  receiving  it ;  and  its 

weight. 

35.  What  facts  are  within  the  rule. 

86.  Whose     declarations      may     be 

proved. 

87.  Family  records. 

88.  Other  written  declarations. 

89.  General  family  repute. 


IV.  HEARSAY  AS  TO,  <fcc.. — continued. 

40.  Declarations  in  view  of  contro- 

versy. 

41.  Repute  beyond  the  family;   Ac- 

quaintance ;  Newspaper  notice ; 
Insurance. 

42.  Best  and  secondary  evidence. 

V.  REGISTRY  OF  FACTS  OF  FAMILY  HISTORY 

(PEDIGREE). 

43.  Registries  authorized  by  law. 

44.  Registries  not  authorized  by  law. 

45.  Best  and  secondary  evidence. 

46.  Impeaching  registries. 

VI.  JUDICIAL  RECORDS,  SHOWING  FACTS  OF 

FAMILY  HISTORY  (PEDIGREE). 

47.  Letters  of  administration,  <fcc. 

48.  Judgments  and  verdicts. 

VII.  IDENTITY. 

49.  Necessity  of  proof. 

50.  Mode  of  proof. 

VIII.  NATIONAL  CHARACTER  ;  AND  DOMICILE, 

51.  Citizenship  and  alienage. 

62.  Naturalization. 

63.  Nature  of  the  question  of  domicile. 

64.  Presumptions;  and  material  facts 

as  to  domicile. 

65.  Change  of  domicile. 
56.  The  intent. 

67.  Evidence  of  residence,  and  of  in- 
tent. 

IX.  WILLS. 

58.  Presumptions,  and  burden  of 
proof  as  to  intestacy. 

69.  Domestic  will  proved  by  produc- 
ing probate. 

60.  Decree  of  probate  court,  how  far 

conclusive. 

61.  Formalities'  of  execution. 

62.  Testamentary  capacity. 

63.  Conduct  and  declarations  of  testa- 

tor. 

64.  Opinions  as  to  mental  soundness. 

65.  Hereditary  insanity. 

66.  Inquisitions,  and  other  adjudica- 

tions. 

67.  Undue  influence ; — the  burden  of 

proof. 

68.  Indirect  evidence. 

69.  Relevant  facts. 

70.  Declarations  and  conduct  of  tester 

tor. 

[71J 


72  ACTIONS  BY  AND  AGAINST 

IX.  WILLS — continued.  XI.  ADVANCEMENTS. 

71.  Fraud.  117.  The  general  presumption. 

72.  Revocation.  118.  Advancement    by   deed    of   real 

73.  Marring  the  document.  property. 

74.  Disappearance  of  the  document.  119.  Purchase  in  name  of  child. 
76.  Testator's  declarations.  120.  Other  transfers. 

76.  Subsequent  testamentary  acts.  121.  Entries  in  account. 

77.  Constructive  revocations.  122.  Declarations  and  admissions. 

78.  Action   to  establish   lost  or  de-        123.  Value. 

stroyed  will.  124.  Testamentary  clauses   as    to  ad- 

79.  Foreign  will.  vancements. 

80.  Ancient  will. 

X.  EXTRINSIC  EVIDENCE  AS  TO  WILLS.  XI1I')KTl ?E>  D«C^B*™N8'  ANP  JODGMKNTf- 

81.  Effect  of  the  Statute  of  wills.  126'  Ancestors  title,    and   successors 

82.  Legitimate    objects    of   extrinsic        ,0fl    ~  e. 

evidence  6*  Declaratlons  and  admissions  of  the 

83.  Reasons  for  its  liberal  admission.  „  ~  aj^or  as  to  title,  Ac. 

84.  Reasons  for  its  strict  exclusion.  }*'  Declarations  of  third  persons. 

85.  Exceptional  rule  as  to  evidence  in  128'  ^clarations  of  successors,  repre- 

rebuttal  sentatives  and  benenciaries. 
86-88.  Extrinsic  aid  in  reading.  129'  Judgments. 
89,  90.  Extrinsic  aid  in  testing  valid- 
ity. XIII.  ACTION  TO  CHAKGE  HEIE,  NEXT  or 
91-107.  Extrinsic  aid  in  applying.  KIN,  &c.,  WITH  ANCESTOR'S  DEBT. 
108-115.  Extrinsic  aid  in  executing.  130.  Material  facts. 
116.  Time  of  declarations  bearing  on  131.  Mode  of  proof, 
intention. 

I.  DEATH. 

1.  Direct  testimony.] — Death,  like  birth  and  marriage,  and 
the  number  and  names  of  children,  &c.,  may  be  proved  by  the 
testimony  of  a  witness  directly  to  the  fact,  and  such  testimony  is 
not  necessarily  rendered  incompetent  by  its  appearing  that  his 
memory  is  aided  by  family  records  not  produced,1  nor  even  that 
he  was  not  an  eye-witness  of  the  occurrence.     When  such  testi- 
mony is  offered  the  adverse  party  may,  if  he  choose,  interpose  with 
cross-examination  to  ascertain  if  the  witness  has  personal  knowl- 
edge of  the  occurrence.   If  he  has  not,  the  burden  is  thrown  upon 
the  party  calling  him  to  show  the  conditions  of  lapse  of  time,  re- 
lationship or  information  which  render  hearsay  competent  under 
the  rules  stated  below ; 2  but  such  testimony,  whetner  admitted 
after  scrutiny  or  without  objection,  is  not  very  cogent.8     Its 
weight  depends  much  on  the  absence  of  other  evidence  to  the 
contrary. 

2.  Registry  of  death  or  'burial.'] — Death  may  be  proved  by  an 
official  registry  of  the  death,  kept  pursuant  to  statute,4  or  by  a 
church  or  other  registry  of  burial,  shown  to  have  been  kept  in 
the  manner  hereafter  stated  ; s  and  upon  the  same  principle  the 

1  Secrist  v.  Green,  3  Wall  750. 

*  See  paragraphs  33,  <fec. 

8  See  Scheel  v.  Eidman,  77  EL  301. 

4  But  a  memorandum  indicating  death  is  not  competent  merely  because  found  in 
an  official  record  kept  for  other  purposes.     Ridgeley  v.  Johnson,  1 1  Barb.  527. 

*  bee  paragraph  41,  below. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.          73 

entry  of  death,  in  a  hospital  register  would  be  competent.1  A 
burial  registry  kept  without  authority  of  statute  is  not,  as  an 
official  registry  of  death  may  be,  evidence  of  the  time  of  death, 
any  further  than  to  show  that  it  was  presumably  within  a  reason- 
able season  previous  to  the  burial,  unless  the  time  of  death  is 
shown  to  have  been  recorded  by  direction  of  a  member  of  the 
family  since  deceased,  so  as  to  bring  it  within  the  rule  hereafter 
noticed  of  declarations  as  to  facts  of  pedigree. 

3.  Presumptions  of  Death  and  of  the  Time  of  death.'] — He 
who  founds  his  claim  on  an  assertion  of  death,  must  give  some  evi- 
dence from  which  the  law  or  the  jury  may  infer  that  death  has  oc- 
curred ;  for  as  against  him  the  presumption  of  law  is  that  a  per- 
son of  whom  nothing  is  known  but  that  he  was  living  at  a  certain 
time,  continues  to  live,2  at  least  until  he  would  reach  the  age  of 
one  hundred,  after  which  he  may  be  presumed  to  be  dead  in 
the  ordinary  course  of  nature.8     When  there  is  no  definite  evi- 
dence of  the  fact  of  death,  as  in  the  case  of  a  person  absent  and 
unheard  of,  the  law  receives  all  proper  evidence  of  the  circum- 
stances which  can  throw  light  upon  motive,  cause,  and  casualty, 
and  in  civil  cases  inquires  not  whether  it  is  possible  that  he  can 
be  alive,  but  whether  the   circumstances   do  not  warrant  that 
strong  probability  of  death  upon  which  a  court  of  justice  should 
act.4    And  the  tendency  of  such  circumstances  may  be  aided  by 
the  presumption  of  innocence,  as,  for  instance,  where  continued 
life  would  prove  guilt  in  the  party  to  a  second  marriage.5 

Presumptions  drawn  from  the  circumstances  of  absence  may, 
and  often  do  suffice,  to  establish  that  a  person  was  dead  at  and  af- 
ter a  specific  date,  without  affording  any  indication  that  in  fact  he 
died  on  that  date,  or  on  any  given  date.  The  law,  which  follows 
common  reason  in  sifting  this  kind  of  evidence,  often  agrees  with 
the  family  in  giving  up  the  lost  one  as  dead,  but  the  question  at 
what  date  he  died  may  remain  inscrutable  for  the  law  as  well  as 
.  for  the  family.  Upon  the  first  question  the  law  aids  a  decision 
by  the  convenient  artificial  rule  that  one  absent  and  unheard  of 
for  seven  years  may  be  presumed  no  longer  living.  Whether 
any  artificial  rule  exists  aiding  the  decision  of  the  question  at 
what  time  his  death  shall  be  deemed  to  have  occurred,  is  dis- 
cussed below.  • 

4.  Circumstances  raising  a  Natural  Presumption  of  death.'] — 
Death  within  a  very  recent  time  may  be  inferred  from  the  circum- 


1  See  Doe  v.  Andrews,  15  Q,  B.  759. 

•  O'Gara  v.  Eisenlohr,  38  N.  Y.  296,  and  cases  cited ;  Duke  of  Cumberland  v. 
Graves,  9  Barb.  595. 

3  Hayes  v.  Berwick,  2  Martin  (La.)  138 ;  Watson  v.  Tindall,  24  Geo.  474 ;  Sprigg 
T.  Moale,  28  Md.  497,  605. 

4  Merritt  v.  Thompson,  1  Hilt.  650,  655,  and  cases  cited. 

5  Smith  v.  Knowlton,  11  N.  II.   191,  196;  Kelly  v.  Drew,  12  Allen,  107,  110. 
Compare  O'Gara  v.  Eisenlohr,  38  N.  Y.  296. 


74  ACTIONS  BY  AND  AGAINST. 

stances  of  absence,  or  disappearance.  Sudden  disappearance  is 
not  alone  enough,  in  the  case  of  a  man  without  social  or  pe- 
cuniary ties,  or  fixed  abode,1  though  it  may  be  in  that  of  one  en- 
deared to  his  home  and  fixed  in  his  habits,2  or  having  strong  pe- 
cuniary motive  to  appear,  according  to  his  habit,  if  alive,8  or  in 
case  or  one  who  was  last  seen  in  proximity  to  danger,  and  left  his 
effects  in  a  situation  suggestive  of  accident  or  suicide.4  Where 
the  presumption  of  death  turns  upon  unexplained  absence,  all  the 
circumstances  surrounding  the  absentee  within  a  reasonable  time 
before  his  departure,  or  at  any  time  afterward,  which,  in  their  na~ 
ture,  have  reasonable  bearing  on  the  probabilities,  are  relevant — • 
such  as  the  state  of  his  domestic  and  business  relations,  his  habits, 
his  health  of  body  and  mind,  previous  threats  of  suicide,  the  im- 
mediate and  ultimate  purposes  of  his  departure,  the  circumstances 
of  his  correspondence  and  its  cessation,  &c.5  The  presumption 
of  death  from  absence  rests  on  the  fact  that  it  is  strange  that  a 
man  should  absent  himself,  without  communicating  with  his 
friends  if  living 6 — hence  it  is  aided  by  whatever  in  his  situation 
and  habits  makes  it  the  more  strange,  and  is  impaired  by  what- 
ever makes  it  easily  credible.7 

5.  Voyages,  and  other  Special  Perils.'] — It  is  well  settled  that 
evidence  that  at  last  accounts  the  absentee  was  exposed  to  great 
and  immediate  peril  may,  in  connection  with  the  failure  of  fur- 
ther tidings,  raise  a  presumption  of  a  death  consequent  on  the 
peril.8  So  one  who  has  sailed  in  a  vessel  which  has  never  been 
heard  of,  after  such  lapse  of  time  as  would  be  sufficient  to  allow 
information  to  be  received  from  any  part  of  the  world  to  which 
the  vessel  or  persons  on  board  might  be  supposed  to  have  been 
carried,  may  be  presumed  to  be  dead,9  if  on  inquiry  in  the  proper 
quarters  it  appears  that  no  intelligence  of  him  has  been  received.10 
In  such  a  case  evidence  that  the  insurers  of  the  ship  have  paid 


1  Hancock  v.  American  Ins.  Co.  62  Mo.  26,  s.  c.  3  Centr.  L.  J.  695. 

5  Id. ;  and  see  62  Mo.  121. 

8  In  re  Beasney's  Trusts,  L.  E.  7  Eq.  498. 

4  Lancaster  v.  Washington  Life  Ins.  Co.  62  Mo.  121,  129. 

6  For  illustrations  of  this  principle,  see  Tisdale  v.  Ins.  Co.  26  Iowa,  170,  again  28 
Id.  16,  reVd  on  another  point  in  91  U.  S.  (1  Otto),  238;  Stouvenel  v.  Stephens,  2 
Daly,  319;  Sheldon  v.  Ferris,  45  Barb.  124;  Hancock  v.  Am.   Ins.  Co.  62  Mo.  26, 
s.  c.  3  Centr.  L.  J.  595 ;  Garden  v.  Garden,  2  Houst.  574;  John  Hancock  Ins.  Co.  v. 
Moore,  16  Am:  L.  Reg.  N.  S.  214. 

6  Per  LD.  DENMAN,  2  Mees.  &  W.  913. 

7  See  paragraph  9,  below.    Thus  the  mere  fact  that  the  person  was  absent  as  a 
mariner  does  not  raise  a  presumption  of  death  before  the  lapse  of  seven  years.  Eagle'3 
Case,  3  Abb.  Pr.  218,  s.  c.  4  Bradf.  117;  and  see  Smith  v.  Knowlton,  11  N.  H.  191, 
197  ;  Burr  v.  Sim,  4  Whart.  150,  171. 

8  Eagle's  Case,  3  Abb.  Pr.  218,  s.  c.  4  Bradf.  117;    Merritt  v.  Thompson,  1  Hilt. 
650,  655,  and  cases  cited. 

*  Id.  and  cases  cited;  White  T.  Mann,  26  Me.  361,  370  ;  Merritt  v.  Thompson,  1 
Hilt.  650 ;  Gerry  v.  Post,  13  How.  Pr.  118  ;  Lancaster  v.  Washington  Life  Ins.  Co. 
62  Mo.  121,  129. 

10  See  paragraphs  8  and  34,  Ac.,  below. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.          75 

the  policy  as  on  a  total  loss,  is  deemed  competent  evidence  of  the 
death  of  one  on  board,1  probably  on  the  principle  by  which  com- 
mon repute  from  proper  sources  is  received.  The  concurrence  of 
a  particular  storm  or  a  hurricane  season,  with  the  route  of  voyage, 
is  relevant,  as  enhancing  the  probability  of  loss  and  indicating  the 
probable  time.2 

6.  Seven  years'  absence  in  case  of  Life  Estates.] — The  incon- 
veniences resulting  to  persons  entitled  as  reversioners  upon  the 
termination  of  life  estates,  in  England,  for  want  of  proof  of  the 
death,  while  absent,  of  the  persons  upon  whose  life  the  termin- 
ation depended,  led  in  1667  to  the  enactment  of  a  statute3  by 
which  seven  years'  absence  in  such  cases  raised  a  legal  presump- 
tion of  death.     This  rule,  in  the  form  adopted  in  "N ew  York,4  is 
as  follows  :  "  If  any  person,  upon  whose  life  any  estate  in  lands 
or  tenements  shall  depend,  shall  remain  beyond  sea,  or  shall  al>- 
sent  himself,  in  this  state  or  elsewhere,  for  seven  years  together, 
such  person  shall  be  accounted  naturally  dead,  in  any  action  con- 
cerning such  lands  or  tenements,  in  which  his  death  shall  come 
in  question,  unless  sufficient  proof  be  made  in  such  case,  of  the 
life  of  such  person."     It  is  not  necessary  for  the  party  relying  on 
such  a  statute  to  prove  either  alternative  specifically,  but  a  gen- 
eral proof  of  absence,  showing  a  case  which  must  be  within  one 
or  the  other  alternatives  of  the  statute,  is  enough.5 

7.  Seven  years'  rule  in  other  cases. ,] — In  analogy  to  the  stat- 
ute as  to  life  estates,  and  another  as  to  bigamy,  the  courts  estab- 
lished the  rule  that  in  all  cases,  whatever  presumption  may  be 
claimed  of  the  continuance  of  a  life  from  the  mere  fact  that  it 
was  shown  once  to  exist,  ceases  at  the  expiration  of  seven  years 
from  the  time  the  person  was  last  known  to  We  living,  and  that 
from  the  mere  lapse  of  that  time  arises  a  legal  presumption  that 
the  person  is  no  longer  living.     This  presumption,  first  suggested 
as  a  proper  one  for  the  jury  to  draw  in  analogy  to  the  statutes,6 
is  now  a  well  recognized  legal  presumption,  constituting,  in  the 
absence  of  evidence  to  the  contrary,  a  prima  facie  case.7 

8.  Absence  and  Inquiry] — To  bring  a  case  within  either  a 
statutory  or  judicial  rule  as  to  seven  years'  absence,  it  is  not  enough 
that  no  evidence  of  the  whereabouts  of  the  person  is  adduced. 
There  must  be  affirmative  evidence  of  absence,  from  his  established 


1  Goods  of  Main,  1  Sw.  &  Tr.  11 ;  In  re  Ilutton,  1  Curteis,  595. 

9  Gibbes  v.  Vincent,  11  Rich.  (S.  C.)  823 ;  Silleck  v.  Booth,  1  Younge  <fe  C.  117. 
The  same  facts  which,  uudcr  the  law  of  insurance,  would  be  competent  as  bearing  on 
the  presumption  of  loss  of  the  vessel,  will  in  such  cases  be  usually  relevant  to  the 
presumption  of  death. 

3  19  Car.  II,  c.  6;  1  Chitt.  Stat.  1370. 

4  1  R.  S.  749,  §  6. 

s  Osborn  v.  Allen,  26  N.  J.  L.  (2  Dutcher),  388. 

6  Doe  d.  George  v.  Jesson,  6  East,  80,  85. 

T  Forsaith  v.  Clark,  1  Foster  (N.  H.),  409;  King  T.  Paddock,  18  Johns.  141. 


76  ACTIONS  BY  AND  AGAINST 

residence,1  if  lie  had  one,  and  that  he  has  not  been  heard  of  by  those 
who  would  be  likely  to  have  heard  of  him  if  alive.2  For  this  pur- 
pose such  persons  should  be  called  as  witnesses,  or  a  reasonable  in- 
quiry among  them,  or  search  for  them,  without  success,  must  be 
shown.8  If  he  had  a  known  and  fixed  residence  in  a  foreign 
country  when  last  heard  from,  there  should  be  some  evidence  of 
inquiries  made  there.  If  he  had  relatives  in  this  country,  there 
should  be  some  evidence  of  inquiries  of  them,  or  an  unsuccessful 
search  for  them  at  their  last  known  place  of  residence  ;  and  the 
mere  fact  that  letters  addressed  to  relatives  at  a  last  known  place 
of  residence  remained  unanswered,  is  not  sufficient.4 

"What  is  a  reasonable  inquiry  is  a  mixed  question  of  law  and 
fact,  to  be  determined  upon  the  particular  circumstances  of  the 
case.5 

9.  Rebutting  the  Presumption.'] — The  presumption  is  a  con- 
venient artificial  rule,  defining  the  limit  of  a  mere  probability,6 
and  is  not  conclusive,7  but  susceptible  alike  of  being  strengthened 
and  impaired  by  any  of  the  circumstances  relevant  to  the  natural 
presumption  of  death  in  case  of  long  absence.8  The  presumption 
is  strengthened  by  the  fact  that  the  person  left  home  for  tem- 
porary purposes ; 9  while,  on  the  other  hand,  it  is  weakened  if  he 
left  clandestinely  under  circumstances  indicating  intention  of  con- 
cealment abroad,10  or  appears  to  have  broken  with  friends  after 
departure,  and  ceased  to  desire  intercourse.11  And  the  testimony 
of  a  witness  that  even  others  than  members  of  the  family  have 
heard  that  he  was  living,12  or  that  a  single  letter  has  been  received 
from  him,13  within  the  seven  years,  wholly  rebuts  this  presump- 
tion. While  modern  facilities  of  intercourse  by  mail  and  tele- 
graph add  significAce  to  continued  cessation  of  correspondence, 


1  Doe  v.  Andrews,  15  Q.  B.  760  ;  Stinchfield  v.  Emerson,  52  Me.  465 ;  Spurr  v. 
Trimble,  1  A.  K.  Marsh.  278. 

4  Doe  v.  Andrews,  above ;  Duke  of  Cumberland  v.  Graves,  9  Barb.  595,  608 ; 
McCartee  v.  Camel,  1  Barb.  Ch.  455. 

8  Even  producing  the  only  surviving  relative,  •without  further  inquiry,  is  not 
alone  enough.  Doe  v.  Andrews  (above). 

4  McCartee  v.  Camel,  1  Barb.  Ch.  455,  463. 

b  See  Clarke  v.  Cummings,  5  Barb.  339,  853. 

*  Compare  Ram  on  Facts  (by  Townshend),  110. 

7  R.  v.  Harborne,  2  A.  <fc  E.  540,  s.  c.  4  Nev.  &  Man.  344. 

8  Thus  a  court  of  equity,  having  discretionary  power,  may  require  security  to 
refund,  even  after  the  lapse  of  twelve  years.     Dowley  v.  Winfield,  14  Sim.  277. 

It  has  been  held  that  acts  of  a  party  tending  to  recognize  the  existence  of  the 
absentee,  such  as  reserving  a  fund  for  him  on  a  trust  accounting,  or  proceeding  in  a 
suit  on  proof  of  personal  service  of  process  on  him,  is  competent  aa  against  such 
party.  Keech  v.  Rin  chart.  10  Penn.  St.  244.  « 

9  Loring  v.  Steineman,  1  Mete.  204. 

10  Watson  v.  England,  14  Sim.  28. 

11  Bowden  v.  Henderson,  2  Smale  &  G.  360. 

12  Flynn  v.  Coffee,  12  Allen,  133.     But  as  to  mere  rumors,  see  Koster  v.  Reed,  6 
B.  <fe  C.  19;  Whiteside's  Appeal,  23  Penn.  St.  114,  117. 

13  Smith  v.  Smith,  49  Ala.  158.    The  letter,  if  stated  still  to  exist,  should  be  pro- 
duced, or  its  absence  accounted  for.  Brown  v.  Jewett,  18  N.  H.  230.    Slight  evidence 
ia  enough  to  account  for  absence.    Am.  Life  Ins.  Co,  v,  Rosenagle.  77  Penn.  St.  507, 513. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.    77 

yet,  on  the  other  hand,  the  presumption  from  absence  itself  ia 
weakened  by  modern  facilities  for  travel,1  the  expanse  of  our 
country,  and  the  migratory  habits  of  population.2 

10.  The  Time  of  Presumed  Death.] — The  presumption  of 
continuance  of  life  ends  on  the  expiration  of  the  seven  years,  but 
whether  life  is  presumed  to  have  ended  on  that  day  is  another 
question.   Where  the  death  is  presumed  from  circumstances  natu- 
rally pointing  to  a  particular  period,  it  will  ordinarily  be  a  ques- 
tion for  the  jury  to  find  the  date  of  death,3  either  specifically  or 
relatively  to  otner  events  material  to  the  cause ;  where  a  party 
rests  on  the  seven  years'  presumption,  much  difference  of  opinion 
exists,  and  two  rules  contend  for  control.4 

11.  The  English  rule.] — The  doctrine  recently  established  in 
the  English  courts,5  and  followed  in  some  American  cases,6  is 
that  he  upon  whom  is  the  burden  of  proof  to  show  either  death 
or  survival,  at  a  particular  time  within  the  seven  years,  must  ad- 
duce  distinct  proof  bearing  on  that  time.7 

12.  The  American  rule] — The  rule  more  generally  recognized 
in  the  courts  of  this  country  is  that  the  principle  which  raises  a 
presumption  of  the  death  of   a  person  absenting  himself  for 
seven  years  without  being  heard  from,  furnishes  a  legal  presump- 
tion of  the  time  of  the  death,  as  well  as  of  the  fact  of  the  death ; 
for  in  the  absence  of  such  a  presumption,  the  presumption  would 
be  that  the  person  was  still  alive ;    and  this  presumption  of 
the  continuance  of  life  ceases  only  when  it  is  overcome  by 
the  countervailing  presumption  of  death  arising  at  the  end  of 
seven  years ;  but  the  presumption  of  death  so  arising  cannot 
operate  retrospectively  to  indicate  a  death  previous  to  the  time 
it  arose.     In  other  words,  the  legal  presumption  of  life  is  suf- 


1  Watson  v.  England,  14  Sim.  28. 
s  Smith  v.  Smith,  49  Ala.  158. 

3  When  the  fact  of  death  is  conceded,  and  the  inquiry  is  when  did  it  happen,  the 
question  of  presumptions  arising  from  the  fact  that  the  vessel  was  never  heard  of,  is 
not  postponed  to  the  latest  possible  period,  but  is  a  question  of  reasonable  probability 
in  view  of  the  known  usual  and  not  necessarily  longest  time  for  voyages  like  that  in 
question.     Oppenheim  v.  Wolf,  3  Sandf.  Ch.  571. 

4  See  paragraph  4,  above. 

5  In  re  Phen6's  Trusts,  L.  R.  5  Ch.  139,  and  cases  cited;   In  re  Lewes'  Trusts,  L. 
R.  6  Ch.  356,  affi'g  L.  R.  11  Eq.  236. 

4  State  v.  Moore,  11  Ired.  (N.  C.)  L.  160;  Spencer  v.  Roper,  13  Ired.  333;  Mc- 
Cartee  v.  Camel,  1  Barb.  Ch.  455  ;  see  also  Hancock  v.  Life  Ins.  Co.  62  Mo.  26. 

7  The  grounds  assigned  for  this  rule  are:  1.  That  to  presume  denth  upon  the  last 
day  of  the  seven  years  would  be  to  presume  that  which  would  be  almost  always  con- 
trary to  the  fact ;  2.  That,  if  life  on  the  last  day  of  the  seven  years  is  presumed,  death 
on  the  day  following  is  extremely  improbable ;  and,  3.  That  to  allow  the  presump- 
tion of  continuance  of  life  in  a  case  where  continuance  of  life  is  the  main  fact  in 
issue,  is  a  different  thing  from  allowing  it  where  the  continuance  is  only  incidentally 
involved.  The  English  rule  5a  supported  in  this  country  by  the  opinions  of  RCFFIN, 
Cb.  J.,  NASH,  J.,  and  WALWORTH,  Chan,  in  the  cases  above  cited,  and  that  of  Dr. 
Wharton  (2  Whart.  Ev.  §  1276),  who  deems  it  supported  by  the  preponderance  of 
American  authority.  It  is  assumed,  also,  by  Mr.  Bishop,  1  Bish.  Mar.  <fc  D.  §  456. 


78  ACTIONS  BY  AND  AGAINST 

ficient,  in  the  absence  of  all  other  evidence,  to  sustain  an  alle- 
gation of  existence  at  any  time  during  the  period  that  the  pre- 
sumption lasts,  viz.,  until  the  lapse  of  the  seven  years.1  The 
presumption  that  death  occurs  at  that  time  fixes  the  rights  de- 
pendent on  death,  until  evidence  to  the  contrary  appears.  Hence 
an  executor  is  chargeable  with  interest  for  not  paying  over  to  the 
legatee  entitled  by  reason  of  the  presumable  death.  It  is  not 
necessary  that  the  presumption  should  be  judicially  adjudged  in 
order  to  fix  the  rights  of  parties.2 

13.  Survivorship  in  common  casualty.'] — Where  death  of  sev- 
eral is  caused  by  one  catastrophe,  the  burden  of  proof  is  on  him 


1  This  doctrine  is  fully  supported  by  the  following  decisions :  Montgomery  v. 
Beavans,  1  Sawyer,  653,  s.  c.  4  Am.  L.  T.  U.  S.  Cts.  202,  FIELD,  J. ;  Eagle's  Case,  3 
Abb.  Pr.  218,  s.  c.  4  Bradf.  117,  BRADFORD,  Surr. ;  Exr's  of  Clarke  v.  Canfield,  15 
N.  J.  Ch.  (2  McCarter),  119,  GREEN,  Chan. ;  Whiting  v.  Nicholl,  46  111.  230,  241, 
BREKSE,  Ch.  J. ;  Barr  v.  Sim,  4  Whart.  150,  171,  and  Bradley  v.  Bradley,  4  Id.  173, 
GIBSON.  Ch.  J.;  Smith  v.  Knowlton,  11  N.  H.  191,  196,  PARKER,  Ch.  J. ;  Tilly  v. 
Tilly,  2  Bland  (Md.)  436,  444,  BLAND,  Chan.  The  same  principle  is  also  recog- 
nized, though  not  decisively,  in  Whiteside's  Appeal,  23  Penn.  St.  114,  117, 
BLACK,  Ch.  J.,  and  Stouvenel  v.  Stephens,  2  Daly,  319,  DALY,  Ch.  J. ;  and  Gille- 
land  v.  Martin,  8  McLean,  490,  LEAVITT,  J.  In  the  earliest  English  cases  it 
seems  to  have  been  a  question  of  the  weight  of  testimony ;  and,  in  1560,  it  was 
held  that,  on  evidence  of  seven  years'  absence,  without  being  heard  of,  and  on  proof  of 
belief  in  the  family  of  death,  death  might  be  presumed.  Thome  v.  Rolff,  Dyer,  185  a, 
a.  c.  more  fully,  Bendloe,  86.  In  1624,  the  question  arose  as  to  who  had  the  burden 
of  proof,  as  to  whether  absentees,  shown  once  to  have  been  in  life,  were  still  alive, 
and  it  was  held  that  the  burden  was  on  the  plaintiff  asserting  their  death,  for  it 
having  been  shown  that  they  were  once  in  life,  they  should  be  presumed  living  till 
the  contrary  was  shown.  Throgmorton  v.  Walton,  2  Rol.  R.  461.  Or,  in  the  words 
of  Lord  ELLENBOROUGH,  "  where  the  issue  is  upon  the  life  or  death  of  a  person  once 
shown  to  be  living,  the  proof  of  the  fact  lies  on  the  party  who  asserts  the  death." 
Wilson  v.  Hodges,  2  East,  312.  See  also  10  Viner's  Ab.  298,  Estate  R.  a.  4.  After 
the  decision  in  Throgmorton  v.  Walton,  the  statute  19  Car.  II,  as  to  life  estates  was 
passed,  see  paragraph  6,  above,  directing  judges  to  instruct  the  jury  that  seven  years' 
absence,  <fcc.,  raised  a  legal  presumption  of  death.  The  reasons  supporting  the  Amer- 
ican and  earlier  English  rule  are  :  1.  That  the  old  common-law  presumption  of  con- 
tinuance of  life  lasts  until  intercepted  by  the  statutory  or  judicial  seven  years'  limit, 
or  by  evidence  pointing  to  death  at  a  particular  time.  2.  Death  is  presumed  at  the 
end  of  seven  years,  not  for  the  purpose  of  fixing  on  the  true  date,  but  because  the 
true  date  is  inscrutable.  The  presumptions  of  continuance  of  life,  and  of  death  after 
seven  years,  are  presumptions  founded  on  ignorance,  and  are  not  to  be  tested  by  the 
question  whether  the  artificially  designated  day  is  probably  the  true  one.  Like 
other  presumptions  founded  on  ignorance,  the  object  is  merely  certainty,  because 
truth  cannot  be  ascertained.  3.  Because  the  true  date  is  unascertainable,  it  becomes 
necessary  to  fix  a  day  on  which  rights  shall  be  deemed  to  devolve,  as  if  actual  death 
on  that  day  were  known.  4.  Without  this  rule,  where  proof  of  the  actual  date  can- 
not be  made,  the  property  must  either  remain  undistributed,  or  be  distributed  among 
the  contestants,  not  according  to  any  settled  principle,  but  according  to  the  accident 
of  possession,  or  as  one  or  the  other  claimant  happens  to  be  the  moving  party  in  court. 
Apart  from  these  considerations  of  theory  and  policy,  the  question  resolves  itself 
into  this,  viz.,  is  the  legal  presumption,  that  a  person  once  shown  to  be  living  con- 
tinues to  exist  until  the  contrary  is  indicated,  sufficient  to  stand  as  a  prima  facie  case 
in  favor  of  one  who  assumes  the  affirmative  ?  In  some  other  cases,  the  presumption 
of  the  continuance  of  a  fact  shown  once  to  have  existed  is  prima  facie  proof  in  favor 
of  him  who  alleges  the  fact,  as,  for  instance,  in  case  of  indebtedness,  partnership, 
insanity,  <fcc.  It  may  be  observed  that  the  law  constantly  acts  on  this  presumption 
of  life,  in  service  of  process  on  absentees  by  advertisement. 

*  Whiteside's  Appeal,  23  Penn.  St.  114,  117.    Compare  Chap.  IV,  p.  57,  n.  15. 


'  HEJRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.  79 

who  claims  that  one  survived  the  other,  to  give  some  evidence 
rendering  survival  probable.  The  law  neither  makes  nor  permits 
a  presumption  that  one  survived  the  other  from  the  mere  fact  of 
age  or  sex ;  but  if  there  is  evidence  that  the  prolongation  of  life 
depended  on  struggle  or  endurance,  then  the  relative  strength 
may  be  relevant,  and  in  such  case,  as  well  as  where  there  is  even 
slight  evidence  that  one  was  seen  alive  after  the  other  may  be 
presumed  to  have  been  dead,  the  question  may  be  one  for  the 
jury-1 

II.   MAKBIAGE. 

14.  Burden  of  proof,   and  presumptions^ — Marriage  is  not 
presumable  from  marriageable  age  and  lapse  of  time,2  and  proof 
that  a  woman  was  a  wife  during  a  given  period  does  not  raise  a 
presumption  of  marriage  at  any  particular  earlier  date  ; 3  but,  on 
the  other  hand,  the  court  will  not,  in  the  absence  of  evidence, 
presume  that  one  never  married.     The  burden  of  proof  is  on  him 
who  asserts  either  marriage  or  the  contrary.4     For  the  purposes  of 
actions  considered  in  this  chapter,  it  may  be  presumed  that  every 
competent  couple  who  live  together  ostensibly  in  the  way  of  hus- 
band and  wife,  are  in  reality  such.5     This  presumption,  for  which 
considerations  of  public  order  and  decency  are  a  sufficient  support, 
is  aided  by  the  presumption  of  innocence  in  favor  of  a  party  to 
the  marriage  claiming  under  it,  and  is  greatly  strengthened  when 
the  only  question  depending  is  the  legitimacy  of  offspring.     The 
presumptions  in  favor  of  marriage  increase  in  strength  with  the 
prolongation  of  the  matrimonial  cohabitation.6 

15.  Direct  evidence  of  Marriage.'] — Marriage  may  be  proved 
either  by  evidence  of  the  contract  which  constitutes  it  (some- 
times called  evidence  of  actual  marriage),  or  by  evidence  of  the 
status,  or  matrimonial  condition  in  life,  of  which  that  contract  is 
the  foundation  (sometimes  called  de  facto  or  presumptive  mar- 
riage).    There  is,  however,  but  one  kind  of  marriage,  and  the 
difference  is  in  the  evidence  by  which  the  relation  is  proved.    To 
prove  the  contract,  it  is  sufficient  to  prove  an  unconditional 
agreement  of  marriage  in  the  present,  as  distinguished  from  an 
executory  agreement  to  marry,  if  intended  by  the  parties  to  con- 
stitute them  husband  and  wife,7  though  without  solemnization,8 


1  Moehring  T.  Mitchell,  1  Barb.  Ch.  264;  Newell  v.  Nichols,  12  Hun,  604,  and 
cases  cited;  13  Moak's  Eng.  R.  679,  n.;  Ommaney  v.  Stilwell,  23  Beav.  828 ;  Robin- 
son  v.  Gallier,  2  Woods,  178 ;  Kansas,  <fec.  Railw.  Co.  v.  Miller,  2  CoL  T.  442,  464, 

*  Erskino  v.  Davis,  25  111.  251,  256. 

8  Id.  i 

4  Doe  T.  Deakin,  3  Carr.  <fe  P.  402. 

4  1  Bish.  on  Mar.  Vfc  D.  g§  434,  443. 

4  1  Bish.  on  Mar.  <fe  D.  §  468,  and  cases  cited. 

7  Hill  v.  Burger,  3  Bradf.  432 ;  Steuart  v.  Robertson,  L.  R.  2  Sc.  App.  494,  s.  a 
13  Moak's  Eng.  165;  McClurg  v.  Terry,  21  N.  J.  Eq.  (6  0.  E.  Green),  225. 

8  Clayton  v.  Wardell,  4  N.  Y.  231 ;   Cheney  v.  Arnold,  15  N.  Y.  351,  and  cases 
cited. 


80  ACTIONS  BY  AND   AGAINST 

or  -witnesses;1  and  proof  of  cohabitation  is  not  necessary,2  at 
least  if  there  be  proof  of  solemnization.3  But  proof  of  a  contract 
perverba  defuluro  is  not  enough,  though  followed  by  cohabitation.4 
The  contract  or  its  solemnization  before  a  clergyman  or  magis- 
trate may  be  proved  by  the  testimony  of  an  eye  witness,  and  for 
this  purpose  a  party  is  competent ;  *  and  parol  testimony  is  not 
excluded  by  the  fact  that  the  statute  provides  for  a  record.6  It 
is  enough  that  the  witness  be  able  to  testify  that  the  marriage 
was  celebrated  according  to  the  usual  form,  and  he  need  not  be 
able  to  state  the  words  used.7  From  the  fact  of  solemnization 
assent  is  presumed,8  even  though  it  was  not  expressed.9  Where 
solemnization  was  necessary  by  the  law  under  which  the  marriage 
was  contracted,  if  it  is  proved,  and  matrimonial  cohabitation  un- 
der it,  the  law  presumes  that  all  the  necessary  formalities  were 
had,  unless  the  contrary  is  shown ; 10  and  even  then  a  subsequent 
valid  marriage  may  be  presumed  from  continued  matrimonial 
cohabitation  under  color  of  the  informal  solemnization.11 

16.  Certificate  or  Registry.'] — Marriage  may  equally  be  proved 
by  a  marriage  certificate,  if  made  evidence  by  statute,12  or  if  so  con- 
nected with  the  parties  as  to  be  competent  as  part  of  the  res  gestce, 
or  as  their  declaration,  or  if  by  lapse  of  time  and  family  tradition 
it  is  competent  as  hearsay.13  It  may  also  be  proved  by  an  official 
registry  kept  pursuant  to  statute,14  or  by  the  registry  kept  by  the 
officiating  clergyman,15  or  the  proper  officer  of  a  church  or  relig- 
ious society,16  pursuant  to  his  duty,  though  without  requirement 
of  statute.1^  The  registry  is  evidence  both  of  the  fact  of  mar- 
riage and  the  date  of  solemnization.18 


1  Van  Tuyl  v.  Van  Tuyl,  8  Abb.  Pr.  N.  S.  6,  s.  c.  57  Barb.  235. 
*  Jackson  v.  Winne,  7  Wend.  47  ;  Caujolle  v.  Ferrie,  26  Barb.  177. 
8  Jaques  v.  Pub.  Administrator,  1  Bradf.  479. 

4  Cheney  v.  Arnold,  15  N.  Y.  345  ;    Holmes  v.  Holmes,  1  Abb.  U.  S.  C.  Ct.  639  ; 
Duncan  v.  Duncan,  10  Ohio  St.  181.     Contra,  1  Bish.  on  Mar.  &  D.  §§  251-256. 

5  Bissell  v.  Bissell,  7  Abb.  Pr.  N.  S.  16,  8.  c.  55  Barb.  325. 

6  Commonwealth  v.  Norcross,  9  Mass.  492. 

7  Fleming  v.  People,  27  N.  Y.  329. 

8  Id. 

9  Harrod  v.  Harrod,  1  Kay  <fe  J.  4,  17.     Contra,  Dennison  v.  Dennison,  35  Md. 
861. 

10  Smith  v.  Huson,  1  Phill.  287,  294;    1  Bish.  Mar.  &  D.  §§  450,  451.     It  is  the 
better  opinion  that,  even  where  the  law  requires  solemnization,  it  is  enough  to  show 
solemnization  before  an  officer  de  facto,  that  is,  a  person  assuming  to  act  by  authority 
in  the  solemnization.     1  Bish.  on  Mar.  &  D.  §  496. 

11  Johnson  v.  Johnson,  1  Coldw.  (Tenn.)  626,  634 ;    Harrod  v.  Harrod,  1  Kay  A  J. 
4,  17;  Rex  v.  Brampton,  10  East,  288  ;  Raynham  v.  Canton,  3  Pick.  293. 

12  Otherwise  of  a  certificate  given  many  years  after  the  fact,      Gaines  v.  Relf, 
12  How.  U.  S.  472,  555. 

13  See  paragraph  34,  below. 

14  See  paragraph  43,  below,  and  Jackson  v.  Boneham,  15  Johns.  266. 
16  Maxwell  v.  Chapman,  8  Barb.  679,  682. 

16  Jackson  v.  King,  5  Cow.  237. 

11  Maxwell  v.  Chapman  (above) ;  Rose.  N.  P.  232. 

18  Doe  v.  Barnes,  1  Moo.  &  Rob.  886. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.          81 

17.  Indirect  evidence  of  Marriage.]—  Evidence  of  cohabitation 
,nf|  rcpute  —  that  is  of  status  or  matrimonial  condition  —  is  only 
"•'.'direct  or  presumptive  evidence  of  a  contract  of  marriage.    This 
£  primary  not  secondary  evidence,1  but  its  efficacy  depends  en: 
tirt'ly  on  its  justifying  an  inference  that  a  contract  of  marriage 
ins  once  maae  ;  2  still  it  is  not  essential  that  such  evidence  point 
to  any  particular  time  of  contract,  unless  time  is  material  under 
t)  e  i»suc.    One  who  alleges  and  fails  to  prove  a  formal  contract 
of  marriage  is  not  thereby  necessarily  precluded  from  adducing 
;n<lircct  evidence,3  although  its  value  may  be  fatally  impaired  by 
the  false  allegation  of  a  formal  marriage.4    Indirect  evidence  may 
\*  (sufficient  to  establish  a  marriage,  even  though  it  may  have  the 
effect  to  invalidate  a  subsequent  marriage.8 

18.  Cohabitation  and  JReputeJ]  —  In   the   absence  of   direct 
proof,  marriage  cannot  be  proved  by  cohabitation  alone,  however 
f,  nt;  continued  ;  6  there  must  be  something  to  show  that  the  co- 
hlihation  was  matrimonial,  not  meretricious.     The  fact  that  the 
•  -lilies  were  reputed  among  friends  and  acquaintances  to  be  man 
::.<!  wife  will  suffice,  with  evidence  of  cohabitation,  if  the  reputa- 
:;..n  be  a  general  or  at  least  a  consistent  reputation.     A  divided 
rvmite  is  of  no  avail.7    A  mere  local  repute,  if  residence  is  brief 
i::d  frequently  changed,   is  of  little  account  alone,  for  an  in- 
%  uded  meretricious  connection  might  be  concealed  by  a  regard 
:'.ir  appearances.    Hence  there  should  be  some  degree  of  public 
rvvo^nition  of  the  relation  of  Imsband  and  wife  among  acquaint- 
ances and  friends.8    The  mere  fact  that  the  man,  under  particular 
cjvumstances,  mav  have  attempted  to  give  to  his  mistress  a  dif- 
f.  rvnt  character  from  the  meretricious  one  which  she,  in  fact,. 
r>uined  toward  him,  is  not  sufficient.9 

In  proving  marriage  by  general  repute,  a  witness  may  testify 
tiat  the  reputation  at  the  place  of  residence  was  that  the  persons 
uestion  were  man  and  wife  ;  but  he  may  be  cross-examined  as 
sources  of  his  information,  and  if  it  appear  on  cross-exam.- 


in  ques 
•...  the 


1 1  Bish.  Mar..  &  D.  §  483. 

1  Hrcadalbane  Case,  Campbell  v.  Campbell,  L.  R.  1  Sc.  App.  in  H.  of  L.  182* 
1  Tnmmalty  v.  Tummalty,  3  Bradf.  369. 

1  Tin*  question  of  weight  rather  than  competency  seems  to  have  been  passed  on  in 

~.-  '-cr»vo  v.  Redgrave,  38  Md.  98.     Compare  Blackburn  v.  Crawfords,  3  Wall.  194. 

•';. -tonnes  in  testimony,  due  to  family  pride,  «fcc.,  explainable.     Gaines  v.  New 

•-•:  v .«,  C  WulL  705.    Testiniony  to  a  marriage  between  dissolute  or  unscrupulous 

r..  r.«  to  ho  cautiously  weighed.     Steuart  v.  Robertson,  L.  R.  2  Sc.  App.  494,  620, 

*  «•.  13  Moak's  Eng.  R.  165,  191. 

1  lir.tw.-r  v.  Bowers,  1  Abb.  Ct.  App.  Doc.  214,  s.  o.  as  Bowers  v.  Brewer,  9  N.  T. 
Ifg.  ol.«.  I'M},  *,  p.  O'Gara  v.  Eisenlohr,  88  N.  Y.  296. 
Commonwealth  Y,  Stump,  63  Penn.  St.  132. 

'I'uauinjjhama  v.  Cunninghams.  2  Dow,  482,  511;    Commonwealth  v.  Stump 
k-o'j.    Conlr.t,  Lyle  v.  Ellwood,  L.  R.  19  Eq.  0.  98,  s.  o.  11  Moak's  Eng.  702. 
'  J.iilt  v.  Burger,  3  Bradf.  432,  437. 

:< .-•«  v  Clark,  8  Paige,  674,  682.  The  degree  of  proof  of  cohabitation  and 
^•.4.  nast  bo  increased  when  one  of  th«  parties  is  still  living.  Hill  v.  Burger,  8 
//•*.:.  4-2,437. 

6 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.  81 

17.  Indirect  evidence  of  Marriage J\ — Evidence  of  cohabitation 
and  repute — that  is  of  status  or  matrimonial  condition — is  only 
indirect  or  presumptive  evidence  of  a  contract  of  marriage.    This 
is  primary  not  secondary  evidence,1  but  its  efficacy  depends  en- 
tirely on  its  justifying  an  inference  that  a  contract  of  marriage 
was  once  made ; 2  still  it  is  not  essential  that  such  evidence  point 
to  any  particular  time  of  contract,  unless  time  is  material  under 
the  issue.     One -who  alleges  and  fails  to  prove  a  formal  contract 
of  marriage  is  not  thereby  necessarily  precluded  from  adducing 
indirect  evidence,3  although  its  value  may  be  fatally  impaired  \>* 
the  false  allegation  of  a  formal  marriage.4    Indirect  evidence  mr1 
be  sufficient  to  establish  a  marriage,  even  though  it  may  have  t* 

effect  to  invalidate  a  subsequent  marriage.5  3 

ay  be  ext 

18.  Cohabitation  and  Repute.'] — In    the   absence  of   dir^ence  of 

proof,  marriage  cannot  be  proved  by  cohabitation  alone,  howeierai  reputj 
long  continued ; 6  there  must  be  something  to  show  that  th^  no^  compG 
habitation  was  matrimonial,  not  meretricious.      The  fact  tlu^  reasonably 
parties  were  reputed  among  friends  and  acquaintances  to  be  Kcterize  it 
and  wife  will  suffice,  with  evidence  of  cohabitation,  if  the  repu 
tion  be  a  general  or  at  least  a  consistent  reputation.     A  diviu^u 
repute  is  of  no  avail.7    A  mere  local  repute,  if  residence  is  brief 
and  frequently  changed,   is  of  little  account  alone,  for  an  in» 
tended  meretricious  connection  might  be  concealed  by  a  regard 
for  appearances.     Hence  there  should  be  some  degree  of  public 
recognition  of  the, relation  of  husband  and  wife  among  acquaint- 
ances and  friends.8     The  mere  fact  that  the  man,  under  particular 
circumstances,  may  have  attempted  to  give  to  his  mistress  a  dif- 
ferent character  irom  the  meretricious  one  which  she,  in  fact, 
sustained  toward  him,  is  not  sufficient.9 

In  proving  marriage  by  general  repute,  a  witness  may  testify 
that  the  reputation  at  the  place  of  residence  was  that  the  porsons 
in  question  were  man  and  wife  ;  but  he  may  be  cross-examined  as 
to  the  sources  of  his  information,  and  if  it  appear  on  cross-exam- 


1  1  Bish.  Mar.  &  D.  §  483. 

2  Breadalbane  Case,  Campbell  v.  Campbell,  L.  R.  1  Sc.  App.  in  n.  of  L.  182. 

3  Tummalty  v.  Tummalty,  3  Brarlf.  369. 

4  The  question  of  weight  r.itber  than  competency  seems  to  have  been  passed  on  in 
Redgrave  v.  Redgrave,  38  Md.  98.     Compare  Blackburn  v.  Crawford*.  3  Wall.  194. 
Inconsistencies  in  testimony,  due  to  family  pride,  <fcc.,  explainable.      Gaines  v.  New 
Orleans,  6  Wall.  705.    Testimony  to  a  marriage  between  dissolute  or  unscrupulous 
persons  to  bo  cautiously  weighed.     Steuart  v.  Robertson,  L.  R.   2  Sc.  App.  494,  520, 
B.  c.  13  Moak's  Eng.  R.  165,  191. 

8  Brower  v.  Bowers,  1  Abb.  Ct.  App.  Dec.  214,  s.  c.  as  Bowers  v.  Brower,  9  N.  T. 
Leg.  Obs.  196,  a  P.  O'Gara  v.  Eisenlohr,  38  N.  Y.  296. 

6  Commonwealth  v.  Stump,  53  Penn.  St.  132. 

T  Cunninghams  T.  Cunninghams,  2  Dow,  482,  511 ;  Commonwealth  T.  Stump 
(above).  Contra,  Lyle  v.  Ellwood,  L.  R,  19  Eq.  C.  98,  s.  o.  11  Moak's  Eng.  702. 

8  Hill  v.  Burger,  8  Bradf.  432,  437. 

8  Rose  v  Clark,  8  Paige,  574,  582.  The  degree  of  proof  of  cohabitation  and 
repute  must  be  increased  when  one  of  tha  parties  is  still  living.  Ilill  v.  Burger,  3 
Bradf.  432.437. 


82  ACTIONS  BY  AND   AGAINST 

ination  that  he  is  speaking  from  information  given  him  by  a  par- 
ticular person,  either  of  the  fact  or  of  the  general  reputation,  the 
evidence  is  shown  to  be  incompetent,  unless  the  source  of  infor- 
mation was  a  member  of  the  family  of  either  spouse,  in  which 
case  the  rule  as  to  declarations  may  apply.1 

19.  Cohabitation  and  Declarations, .] — Evidence  of  confessions 
or  declarations  by  one  or  both  parties  that  they  were  married,  is 
competent  against  them,  and  if  made  during  cohabitation,  so  as  to 

haracterize  it,  is  competent  for  or  against  third  persons ; 2  and 
)  are  the  acts  and  conduct  of  the  parties  toward  each  other.8 
oncealment  which  prevented  any  public  repute  from  arising, 
ough  a  very  strong  circumstance  against  the  presumption  of 
rriage,4  is  not  necessarily  fatal  to  it,  but  may  be  explained;5 
I  if  explained,  dispenses  in  so  far  with  evidence  of  repute, 
nissions  and  declarations  made,  and  a  general  repute  origi- 
<g,  after  the  cohabitation  had  ceased,  are  not  competent  ex- 
is  against  the  declarant.     They  must  be  reasonably  contem- 
aneous  with  the  alleged  status,  so  as  to  characterize  it,  as  facts 
the  nature  of  part  of  the  res  gestce.* 

20.  Marriage  after  Meretricious  Intercourse^ — If  the  cohab- 
itation is  shown  to  have  commenced  as  a  meretricious  one,  the 
mere  continuance  of  cohabitation,  even  with  matrimonial  repute, 
can  never  amount  to  evidence  of  marriage ; 7  but  the  presumption 
in  favor  of  marriage  is  so  favored,8  that  the  courts  lay  hold  of 
any  circumstances  significant  of  actual   change  from  an  illicit 
to   a  lawful  relation,    even  without   any  evidence  pointing  to 
the  actual  time  and  mode  of  the  change.     Marriage  may  be  pre- 
sumed, where  cohabitation  under  circumstances  that  would  have 
been  matrimonial  but  for  the  impediment  of  an  existing  marriage 
of  one  of  the  parties,  is  continued  after  that  impediment  is  re- 
moved, and  known  to  the  parties  to  be  so  removed.9    While  the 
mere  removal  of  the  disability  is  not  enough  to  purge  the  mere- 
tricious character,  even  when  coupled  with  evidence  of  a  prior 
promise  to  marry  after  its  removal,10  evidence  that  the  parties  rec- 
ognized the  new  relation,  and  held  themselves  out  as  man  and  wife, 
and  professed  to  be  bound  by  marital  ties,  and  thus  exhibited  the 

1  Shedden  v.  Patrick,  30  L.  J.  P.  M.  &  T>.  217,  223  (1860-1861). 

9  See  Hayes  v.  People,  25  N.  Y.  396,  per  ALLEN,  J. ;  1  Bish.  Mar.  <fe  D.  §  491 
Compare  Westfield  v.  Warren,  3  Halst.  249. 

3  See  Christy  v.  Clarke,  45  Barb.  529. 

4  Cunningham  v.  Burdell,  4  Bradf.  343. 
6  Gaines  v.  New  Orleans,  6  Wall.  707. 

6  Matter  of  Taylor,  9  Paige,  611,  616. 

1  This  seems  to  be  the  result  of  the  present  state  of  the  authorities ;  but  see,  for  a 
rule  more  favorable  to  the  inference  of  marriage,  1  Bish.  Mar.  <fe  D.  §§  506-509. 

8  And  especially  where  the  question  is  on  the  legitimacy  of  issue ;  see  Caujolle  v. 
Ferric,  23  N.  Y.  90,  affi'g  26  Barb.  177,  4  Bradf.  28. 

9  O'Gara  v.  Eisenlohr,  38  N.  Y.  296 ;  Rose  v.  Clark,  8  Paige,  574,  581,  and  cases 
cited. 

10  Foster  v.  Hawley,  8  Hun,  68. 


82  ACTIONS  BY  AND  AGAINST 

ination  that  he  is  speaking  from  information  given  him  by  a  pa». 
ticular  person,  either  of  the  fact  or  of  the  general  reputation, 
evidence  is  shown  to  bo  incompetent,  unless  the  source  of  ir 
mation  was  a  member  of  the  family  of  either  spouse,  in  w! 
case  the -rule  as  to  declarations  may  apply.1 

19.  Cohabitation  and  Declarations.'] — Evidence  of  confession 
or  declarations  by  one  or  both  parties  that  they  were  married,  1. 
competent  against  them,  and  if  made  during  cohabitation,,  so  ast< 
characterize  it,  is  competent  for  or'against  third  persons;2  an-: 
so  are  the  acts  and  conduct  of  the  parties  toward  each  other; 
Concealment  which  prevented  any  public  repute  from  arising 
though  a  very  strong  circumstance  against  the  presumption  o! 
marriage,4  is  not  necessarily  fatal  to  it,  but  may  be  explained;1 
and  if  explained,  dispenses  in  so  far  with  evidence  of  repute 
Admissions  and  declarations  made,  and  a  general  repute  orig! 
nating,  after  the  cohabitation  had  ceased,  are  not  competent  ei 
cept  as  against  the  declarant.     They  must  be  reasonably  contcc 
poraneous  with  the  alleged  status,  so  as  to  characterize  it,  as  fact, 
in  the  nature  of  part  of  the  res  gestce* 

20.  Marriage  after  Meretricious  Intercourse.'] — If  the  cohal. 
itation  is  shown  to  have  commenced  as  a  meretricious  one,  tt1 
mere  continuance  of  cohabitation,  even  with  matrimonial  reputt 
can  never  amount  to  evidence  of  marriage ; 7  but  the  presumptio: 
in  favor  of  marriage  is  so  favored,8  that  the  courts  lay  hold  t:' 
any  circumstances  significant  of  actual  change  from  an  illici: 
to  a  lawful  relation,   even  without  any  evidence  pointing: 
the  actual  time  and  mode  of  the  change.    Marriage  may  be  prf 
sumed,  where  cohabitation  under  circumstances  that 'would  hav 
been  matrimonial  but  for  the  impediment  of  an  existing  marria^ 
of  one  of  the  parties,  is  continued  after  that  impediment  is  rf 
moved,  and  known  to  the  parties  to  be  so  removed.9    "While  tl. 
mere  removal  of  the  disability  is  not  enough  to  purge  the  merc' 
tricious  character,  even  when  coupled  with  evidence  of  a  pnV 
promise  to  marry  after  its  removal,*0  evidence  that  the  parties  re-' 
ognized  the  new  relation,  and  held  themselves  out  as  man  and  wif- 
and  professed  to  be  bound  by  marital  ties,  and  thus  exhibited  ti 

1  Shodden  v.  Patrick,  30  L.  J.  P.  M.  &  D.  217.  223  (1860-1861). 
8  See  Hayes  v.  People,  25  N.  Y.  396,  per  ALLKN,  J. ;  1  Bish.  Mar.  <fe  D.  §  4/1. 
Compare  Westfield  v.  Warren,  3  Halst.  249. 
8  See  Christy  v.  Clarke,  45  Barb.  529. 
4  Cunningham  v.  Burdell,  4  Bradf.  343. 
8  Gaines  v.  New  Orleans,  6  Wall.  707. 

•  Matter  of  Taylor,  0  Paige,  611,  616. 

7  This  seems  to  bo  the  result  of  the  present  state  of  the  authorities ;  but  see,  (« 
rule  more  favorable  to  the  inference  of  marriage,  1  Bish.  Mar.  <t  D.  §§  506-509, 

8  And  especially  whore  the  question  is  on  the  legitimacy  of  issue ;  see  CaujoLc 
Feme,  23  N.  Y.  90,  affi'g  26  Barb.  177,  4  Bradf.  28. 

•  O'Gara  v.  Eisenlohr,  38  N.  Y.  296;  Hose  v.  Clark,  8  Paige,  674,  681,  andc* 
cited. 

10  Foster  v.  Hawloy,  8  Hun,  68. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.          83 

continuation  of  their  cohabitation  upon  a  new  and  different  foot- 
ing, is  sufficient.1 

21.  Second  Marriage  during  Absence.'] — At  common  law,  mar- 
riage, however  proved,  may  be  disproved  by  evidence  that  one  of 
the  parties  was  at  the  time  a  party  to  a  prior  valid  marriage.3 
The  burden  of  proving  the  prior  marriage  is  on  the  one  who 
seeks  by  it  to  impeach  the  later;8  but  direct  evidence  of  the 
prior  marriage  is  not  essential;  it  may  be  proved  by  cohabita- 
tion and  repute.4  The  principle  of  the  statute  of  bigamy  of  1604,5 
which  excepted  from  the  offense  cases  of  second  marriage  con- 
tracted while  the  former  husband  or  wife  was  beyond  seas  for 
seven  years,  or  was  absent  arid  not  known  to  be  living  for  that 
period,  was  early  adopted  by  the  common-law  courts,  by  analogy, 
as  furnishing  a  presumption  of  death  in  such  cases,  for  civil  pur- 
poses, and  this  rule  has  been  generally  followed  in  this  country, 
the  time  being  shortened  in  some  States  by  statute,  as  in  New 
York  to  five  years,6  where,  also,  a  further  provision  has  been, 
adopted  to  the  effect  that  such  a  second  marriage  shall  not  be 
void,  as  formerly,  if  it  appear  that  the  party  to  both  marriages 
contracted  the  second  after  the  lapse  of  that  period,  without  hav- 
ing meanwhile  known  that  the  absentee  was  living,7  and  in  good 
faith  believing  him  dead.8  Under  that  provision  the  court  will  not 
adjudge  it  void  in  a  collateral  action  involving  only  questions  of 
property ; 9  and  after  the  death  of  one  of  the  parties  to  the  second 
marriage,  that  marriage  is  good  for  the  purpose  of  succession  and 
legitimacy  ; 10  and  even  during  the  life  of  both,  it  may  be  sustained 
for  those  purposes,  by  proof  that  the  former  husband  or  wife  was 
absent,  and  not  heard  of  for  seven  years,  and  that,  after  the  lapse 
of  that  time,  the  second  marriage  occurred ;  or  that  previous  cohab- 
itation and  repute  were  continued  under  circumstances  sufficient 
to  raise  a  clear  presumption  of  marriage  on  grounds  subsequent 
in  point  of  time  to  the  legally  presumable  death  of  the  former 
husband  or  wife.11  Upon  proof  that  the  absentee  was  reputed  in 


I  Ilydo  v.  Hyde,  3  Bradf.  500,  518. 

*  Blossom  v.  Burritt,  37  N.  Y.  434 ;  Emerson  v.  Shaw,  1  L.  <fc  Eq.  Reporter,  C35 
(N.  II.  Mar.  1876). 

3  Patterson  v.  Gaines,  6  How.  U.  S.  550.     But  evidence  of  an  admission  by  such 
party  that  he  was  guilty  of  bigamy  in  the  second  marriage  (Gaines  v.  Relf,  12  How. 
U.  S.  472,  534),  or  that  his  first  wife  was  then  living  (I  Bish.  Mar.  <fe  D.  §  46o),  is  not 
sufficient. 

4  Brower  v.  Bowers,  1  Abb.  Ct.  App.  Dec.  214,  s.  o.  9  N.  Y.  Leg.  Obs.  196. 

*  2  Ja.  I,  ch.  11  (3  Stat.  at  L.,  A.D.  1770,  p.  9),  §  2. 
8  2  R.  S.  C87,  S  9. 

7  2  11.  S.  139,  §  6 ;  Cropsey  v.  McKinney,  30  Barb.  47,  58. 

8  Whether  the  presumption  of  innocence  avails  to  require  evidence  to  the  con- 
trary— compare  Valleau  v.  Vallcau,  6  Paige,  209;  Spears  v.  Burton,  31  Miss.  555; 
O'Gara  v.  Eisenlohr,  38  N.  Y.  296;  Fleming  v.  People,  27  N.  Y.  334. 

9  Cropsey  v.  McKinney  (above) ;  compare  O'Gara  v.  Eisenlohr  (above),  and  Spicer 
v.  Spicer,  16  Abb.  Pr.  N.  S.  112,  and  note. 

10  1  Bish.  Mar.  <t  D.  §  114. 

II  Jackson  v.  Claw,  18  Johns.  346,  350. 


84  ACTIONS  BY  AND  AGAINST 

the  family,  before  the  lapse  of  that  period,  to  be  dead,  or  other 
presumptive  evidence,  the  jury  may  find  death  to  have  occurred 
before  the  second  marriage.1  But  absence  for  less  than  seven 
years,  without  other  evidence  raising  the  presumption  of  death, 
will  not  suffice ;  for  the  technical  presumption  of  innocence  does 
not  avail  against  facts  raising  a  presumption  of  guilt  on  the  one 
hand,  and  negativing  the  existence  of  any  motive  for  remarriage 
on  the  other  hand." 

22.  Rebutting  evidence  of  marriage.'] — Where  the  only  evi- 
dence of  marriage  is  indirect,  or  where  evidence  of  actual  mar- 
riage is  conflicting,  declarations  and  conduct  of  either  or  both 
parties  inconsistent  with  the  matrimonial  character,  are  competent, 
within  the  limits  above  stated,  unless  the  issue  is  upon  legitimacy. 
Thus  declarations  of  either  that  they  were  not  married,  the  fact  that 
the  woman  had  sued,  or  been  sued,  in  her  maiden  name,3  that  they 
terminated  cohabitation  and  separated,  without  further  claim  to 
matrimonial  relation,4  or  that  each  married  other  persons,5  are  suf- 
ficient to  go  to  the  jury  as  negativing  the  presumption  from  mere 
habit  and  repute.  The  effect  even  of  such  evidence  of  cohabi- 
tation and  repute  as,  standing  alone,  would  establish  marriage, 
may  be  nullified  by  evidence  that  the  parties  afterward  formally 
solemnized  a  marriage  under  circumstances  showing  that  their 
motive  was  to  legalize  their  connection,  for  this  conclusively 
proves  that,  in  their  judgment,  it  was  previously  illicit.6  The 
moral  and  social  character  of  the  parties  themselves  is  relevant  as 
bearing  on  the  question  of  the  matrimonial  or  meretricious  char- 
acter of  the  connection,7  though  incompetent  against  evidence  of 
a  ceremonial  marriage.8  But  the  opinion  of  a  witness  as  to 
whether  their  character  rendered  such  a  connection  improbable, 
is  not  competent.9  Evidence  of  loose  oral  denials  by  the  parties 
are  of  little  weight  against  otherwise  clear  and  satisfactory  evi- 
dence of  matrimonial  cohabitation  and  repute  ; 10  and  mere  declara> 
tions  that  the  declarant  is  unmarried,  made  without  reference  to 
a  reputed  relation  between  the  particular  parties,  are  held  incom- 


'  »  Cochrane  v.  Libby,  18  Me.  (6  Shepl.)  39. 

1  O'Gara  v.  Eisenlohr,  38  N.  Y.  296.     Contra,  see  1  Bish.  Mar.  &  D.  §  453,  and 
cases  cited ;  and  see  Kelly  v.  Drew,  12  Allen,  107,  109. 

3  Scudder  v.  Gori,  18  Abb.  Pr.  223,  s.  c.  less  fully,  3  Robt.  661. 

4  Jackson  v.  Claw,  18  Johns.  346.     An  advertisement  forbidding  trust,  appearing 
in  the  newspaper  at  their  domicile,  immediately  after  separation,  has  been  held  com- 
petent, the  original  manuscript  being  lost.     Jewell  v.  Jewell,  1  How.  U.  8.  219,  232 ; 
but  the  better  opinion  is  that  there  must  be  evidence  connecting  one  of  the  parties 
with  it. 

6  Niles  v.  Spragne,  13  Iowa,  202. 
•  Shedden  v.  Patrick,  L.  R.  1  Sc.  &  D.  App.  4TO. 

T  Hill  v.  Burger,  3  Bradf.  432.  449,  a.  p.  Steuart  v.  Robertson,  L.  R.  2  Sc.  App. 
494,  620,  s.  c.  13  Moak's  Eng.  165,  191. 

8  Per  BRADFORD,  Surr.     Hill  v.  Burger  (abovet. 

9  Such  testimony  was  held  to  have  no  weight,  in  Gaines  v.  New  Orleans,  6  WalL 
706. 

10  Tummalty  v.  Tummalty,  3  Bradf.  369. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.  85 

petent.1  Denials  of  "  marriage "  are  inconclusive,  because  they 
may  be  meant  of  a  ceremonial  marriage,  while  the  parties  were 
actually  man  and  wife.2 

23.  Foreign  Law.~] — The  written  law  of  another  State,  or  of  a 
foreign  country,  may  be  proved  in  the  manner  stated  at  p.  22  of 
this  volume.     The  unwritten  law  may  be  proved  by  calling  as  a 
witness  one  practically  conversant  with  it,  either  as  a  lawyer  in 
that  country,  or  as  having  had  a  course  of  legal  duty  to  perform 
there  in  respect  to  marriage,  such  as  to  make  it  probable  that  he 
has  made  himself  acquainted  with  the  law  on  that  subject.     One 
who  is  not  so  qualified,  and  who  has  acquired  his  Knowledge 
solely  from  books,  is  not  competent.8 

III.  ISSUE  OR  FAILURE  OF  ISSTTE. 

24.  Burden  of  proof J] — In  the  absence  of  evidence  neither 
birth  of  children,  nor  the  contrary,  is  presumed.     But  slight  evi- 
dence may  suffice.4      One  claiming  by  collateral  descent  must 
show  who  was  last  entitled,  and  then  prove  his  death  without  is- 
sue ;  next  prove  all  the  different  links  in  the  chain  of  descent 
which  will  show  that  he  and  the  claimant  descended  from  the 
same  common  ancestor,  together  with  the  extinction  of  all  those 
lines  of  descent  which  could  claim  any  preference  to  the  claimant. 
He  must  prove  the  marriages,  births  and  deaths,  and  the  identity 
of  persons  necessary  to  fix  title  in  himself,  and  the  extinction  of 
others  who  would  have,  if  in  existence,  a  better  title.5    This  is 
done  by  proving  the  marriages,  births  and  deaths  necessary  to 
complete  his  title,  and  showing  the  identity  of  the  several  parties.6 
He  must  prove  that  all  the  intermediate  heirs  between  himself 
and  the  ancestor  from  whom  he  claims,  are  dead,  without  issue.7 
The  non-existence  of  issue  is  a  fact  separate  from  death,  in  sup- 
port of  which  some  evidence  must  be  given.8 

25.  Presumptions  as  to  Failure  of  Issue, .] — In  the  absence  of 
evidence,  the  presumption  is  that  a  person  dying  intestate,  left 
heirs ; 9  and  the  mere  fact  that  the  death  occurred  under  twenty- 


1  Van  Tuyl  v.  Van  Tuyl,  8  Abb.  Pr.  N.  S.  5,  a.  c.  57  Barb.  235. 

9  Where  there  is  ample  evidence  of  long  and  uninterrupted  cohabitation  and  re- 
pute, evidence  of  the  declaration  of  the  man  that  they  were  not  married,  and  his  testi- 
mony that  they  were  never  married,  since  they  may  be  construed  as  referring  to  a  cere- 
monial marriage,  are  not  enough  to  take  the  case  from  the  jury.  Richard  v.  Brehm, 
73  Penn.  St.  140,  s.  c.  13  Am.  U.  733. 

8  16  Moak's  Eng.  591  n.  and  cases  cited;  Rose.  N.  P.  138,  139  ;  1  Bish.  Mar.  «t 
D.  §§  40-J-430,  521-536. 

4  Emerson  v.  White,  29  N.  H.  (9  Fost )  491,  497,  and  cases  cited. 

4  Sprigg  v.  Moale,  28  Md.  497,  605 ;  3  Washb.  R.  P.  4th  ed.  18  (38). 

6  Emerson  v.  White  (above). 

7  Richards  v.  Richards,  15  East,  294  n. 

8  Sprigg  v.  Moale  (above). 

9  Harvey  v.  Thornton,  14  111.  217. 


86  ACTIONS  BY  AND  AGAINST 

one,1  or  that  it  is  only  presumed  from  the  lapse  of  time,  is  not 
enough  to  raise  a  presumption  that  he  left  no  issue,2  except  after 
great  lapse  of  time,  and  only  for  the  purpose  of  setting  that  branch 
of  the  family  out  of  the  case ; 8  but  slight  evidence  of  death  without 
issue,  may,  after  great  lapse  of  time,  De  sufficient ; *  and  unsuccess- 
ful inquiry  for  children,  ii  any,  at  places  where,  if  such  had  existed, 
information  could  be  obtained,  will  suffice  to  sustain  a  verdict 
in  such  case.5 

26.  Escheat] — Every  citizen  dying  is  presnmed  to  leave  some 
one  entitled  to  claim  as  his  heir,  however  remote,  unless  one  or 
other  of  the  only  two  exceptions  known  to  our  law,  alienage  or 
illegitimacy,  should  intervene.     The  title  of  the  State,  by  reason 
of  defect  of  heirs,  can  be  established  by  actual  proof  of  the  fact 
of  alienage  or  of  illegitimacy,  or  in  certain  cases,  by  proof  of 
reputation  of  either  of  those  facts,  provided  such  proof  be  direct 
and  positive,  founded  upon  inquiry,   advertisements,   personal 
family  knowledge,  or  actual  declaration  of  the  last  person  seized, 
or  of  those  from  whom  his  title  descended.     Mere  hearsay  repu- 
tation of  the  general  fact  of  defect  of  relations  and  heirs  is  not 
sufficient.6 

27.  Possibility  of  Issue  Extinctl\ — The  highest  authorities  in 
medical  jurisprudence  sustain  the  proposition  that  a  woman  be- 
yond the  age  of  fifty-five  has  no  possibility  of  issue.     Extinction 
of  possibility  may  be  presumed  as  a  matter  of  fact  at  an  earlier 
period,  varying  with  the  evidence  as  to  length  of  married  life  and 
condition  of  health.7 

28.  Registry  of  birth  or  baptism.'] — The  fact  of  birth  may  be 
proved  by  an  official  registry  of  birth  kept  pursuant  to  statute, 
or  by  a  registry  of  baptism  shown  to  have  been  kept  in  the  man- 
ner hereafter  stated ; 8  but  a  mere  registry  of  baptism  is  not,  as 
an  official  registry  of  birth  may  be,  evidence  of  the  date  of  birth, 
though  stated  in  it,9  further  than  to  show  that  it  must  have  been 
prior  to  the  date  recorded  as  that  of  baptism, — that  is  to  say,  it 
only  proves  that  the  child  was  in  existence  at  the  time  of  the 


1  Clark  v.  Trinity  Ch.  5  Watts  <fe  S.  266,  271. 

2  Sprigg  v.  Moale  (above). 

3  Rowe  v.  Hasland,  1  W.  Black.  404,  MANSFIELD,  Ch.  J. 

4  Such  as  proof  that  Ms  family,  if  any,  or  his  intimate  acquaintances  frr  many 
years,  never  heard  him  speak  of  wife,  children,  <tc.     Jackson  v.  Etz,  5  Cow.  320 ;  Doo 
v.  Griffin,  15  Eiist,  293;  McComb  v.  Wright,  5  John?.  Ch.  253.     So  of  proof  of  cir- 
cumstances showing  t'int  the  absentee  was  a  young  man  strongly  likely  to  communi- 
cate with  liis  family  if  living,  and  to  inform  them  if  he  were  ever  married.     In  re 
Webb's  Estate,  Ir.  R.  5  Eq.  235. 

8  Kicgv.  Fowler,  11  Pick.  302. 

*  People  v.  Fulton  Fire  Ins.  Co.  25  Wend.  205. 

7  In  re  Widdow's  Trusts.  L.  R.  11  Eq.  408;   In  re  Millner's  Estate,  L.  R.  14  Eq. 
245,  s.  c.  8  Mnak's  Eng.  719;  and  see  25  Weekly  R.  901 ;  4  L.  J.  N.  S.  380. 

8  Paragraph  41  (below). 

9  Clark  v.  Trinity  Church.  5  Watts  <fc  S.  (Penn.)  266,  269 ;  Blackburn  v.  Crawfords, 
3  Wall.  189 ;  Morrissey  v.  Wiggins  Ferry  Co.  47  Mo.  521. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.  87 

ceremony,1 — unless  the  statement  of  the  time  of  birth  is  shown 
to  have  been  made  by  direction  of  a  member  of  the  family  since 
deceased,  so  as  to  bring  it  within  the  rule  admitting  declarations 
as  to  facts  of  pedigree." 

29.  Consorting  as  a  family. ~] — The  fact  that  persons  dwelt  or 
consorted  together  as  members  of  one,  family  in  the  apparent  re- 
lation of  parent  and  child,  and  assisted  and  depended  on  each 
other  as  such,  is  competent,  in  connection  with  other  substantial 
evidence  to  show  the  existence  of  the  relation.3    The  value  of 
such  evidence  depends  on  much  the  same  principles  as  those 
which  admit  cohabitation  and  repute  to  prove  marriage. 

30.  Direct  testimony  to  age.'] — Where  age  is  a  fact  of  pedigree 
within  the  rules  below  stated,  it  seems  that  the  person  whose  age 
is  in  question,  if  he  be  a  competent  witness,  may  as  properly  as 
any  other  person,  testify  to  it,  under  the  conditions  on  which  hear- 
say as  to  pedigree  is  admissible  ;  but  there  seems  to  be  no  good 
foundation  for  allowing  him  to  state  it  except  upon  such  sources.* 
Inspection,  however,  is  deemed  a  sufficient  legal  criterion  to  de- 
cide the  question  of  infancy,5  and  is  sufficient  to  put  a  party  who 
may  bo  affected  by  it  upon  inquiry  ; 6  but  the  mere  opinion  of  a 
witness  respecting  the  age  of  a  person,  from  his  appearance,  un- 
accompanied by  the  facts  on  which  that  opinion  is  founded,  is 
incompetent.7 

31.  Physician's  testimony  or  account.'] — The  testimony  of  the 
attending  physician  to  the  fact  and  the  date 8  of  birth  is  compe- 
tent for  the  purpose  of  proving  infancy ;  and  equally  for  prov- 
ing existence  or  age  for  any  other  purpose.9    If  he  does  not 
remember  the  date,  the  charge  made  by  him  in  his  accounts,  or 
any  other  original  contemporaneous  memorandum  he  made  of  the 
fact,10  is  competent,  if  introduced  by  his  testimony  that  it  was 
correctly  made  at  the  time.11    If  the  physician  is  dead,  his  entry 
in  a  register  of  the  births  he  attended,  which  he  was  accustomed 
to  keep  in  the  course  of  his  vocation,  though  without  requirement 


1  Kennedy  v.  Doyle,  10  Allen  (Mass.)  161 ;  Whitcber  v.  McLaughlin,  115  Mass. 
167. 

s  A  statement  of  illegitimacy  in  the  registry  has  been  deemed  competent,  but  ita 
weight  i-i  questionable.  Morris  v.  Davis,  3  Carr.  &  P.  215,  427;  and  see  Caujolle  y. 
Ferric,  23  N.  Y.  90. 

8  See  Kans:>3,  <fcc.  Rw.  Co.  y.  Miller,  2  CoL  T.  459  ;  Baltimore,  <fec.  R.  R.  Co.  v. 
Gettlc,  3  W.  Va.  376,  385. 

4  Compare  Dewitt  v.  Barly,  1 Y  N.  Y.  344 ;  McCarty  v.  Doming,  4  Lans.  440 ;  Hart 
v.  Stickney,  4  L.  <fe  Eq.  Rep.  120;  Banks  v.  Metcalfe,  1  Wheel.  Cr.  Cas.  381. 
State  v.  Arnold,  13  Ired.  L.  (N.  C  )  184. 
Conroo  v.  Birdsall,  1  Johns.  Gas.  127. 
Morse  v.  State,  6  Conn.  9,  13. 
Beatea  v.  Retallick,  1 1  Penn.  288. 

As  to  exclusion  for  professional  privilege,  see  Edington  v.  Mut.  Life  Ins.  67  N. 
Y.  185,  rev*g  5  Hun,  1;  Blackburn  v.  Crawfords,  3  Wall.  192,  and  cases  cited. 

10  See  Guy  v.  Mead,  22  N.  Y.  462 ;  Mai-cly  v.  Shults,  29  Id.  346. 

11  Heath  v.  West,  26  N.  1L  (6  Fost.)  191. 


88  ACTIONS  BY  AND  AGAINST 

of  statute,  is  evidence  of  the  time  of  a  birth  entered  therein,  there 
being  some  independent  evidence  of  thefact  of  birth.1 

32.  Legitimacy:  Burden  of  Proof  and  Presumptions] — 
Legitimacy  is  a  presumption  of  law  in  the  absence  of  competent 
evidence  to  the  contrary,2  and  language  in  an  instrument  of  evi- 
dence designating  a  person  by  the  word  "  son,"  "  daughter," 
"  child,"  or  the  like,  means  prima  facie,  legitimate  offspring.3 
The  burden  of  proof  is  on  the  party  denying  the  legitimacy  of 
one  shown  to  have  been  born  from  a  wife,4  and  his  evidence  must 
show  illegitimacy  beyond  a  reasonable  doubt.  This  presumption 
is  additional  to  the  presumptions  indulged  in  favor  of  marriage, 
and  of  innocence  of  the  parents,  and  may  prevail,  notwithstand- 
ing the  cohabitation  of  the  parents  is  shown  to  have  been  illicit 
in  its  origin,  and  there  is  no  definite  proof  as  to  when  or  how  the 
change  from  concubinage  to  matrimony  took  place.5  A  child 
born  during  the  mother's  coverture,6  (even  so  soon  after  marriage 
that  conception  must  have  preceded  marriage),7  is  presumed  legit- 
imate in  the  absence  of  competent  evidence  to  the  contrary,  and 
this  is  a  strong  legal  presumption,  and  can  only  be  rebutted  by 
proof  that  no  sexual  intercourse  occurred8  at  any  time,  (whether 
before  or  after  marriage),9  when  the  child  could  have  been  begot- 
ten ;  or  what  is  equivalent,  that  the  husband  was  physically  in- 
competent, or,  that  under  sentence  of  a  court  of  competent  juris- 
diction, they  were  living  separate.10  Sexual  intercourse  is  pre- 


1  Arms  v.  Middleton,  23  Barb.  571,  s.  p.  Blackburn  v.  Crawfords,  3  Wall.  175.  In 
Higham  v.  Ridgeway  (10  East,  109),  such  evidence  was  admitted  not  as  an  entry  in 
the  ordinary  course  of  duty,  but  as  an  entry  against  pecuniary  interest,  because  the 
charge  was  marked  "paid."  In  Matter  of  Paige  (62  Barb.  476),  an  entry  in  a  book 
not  kept  as  a  journal,  but  with  each  account  by  itself,  was  held  incompetent  without 
proof  of  its  truth.  Compare  generally  1  Tayl.  Ev.  597-607 ;  1  Smith's  L.  C.  500, 
<tc. 

8  Banbury  Peerage  Case,  1  Sim.  <fc  St.  153. 

8  Caujolle  v.  Ferric,  23  N.  Y.  105,  107. 

4  Phillips  v.  Allen,  2  Allen,  454;  Caujolle  v.  Ferrie,  26  Barb.  (N.  Y.)  177,  s.  c.  23 
N.  Y.  90.  The  English  authorities  (which  hold  to  stronger  rules  of  cogency  than 
some  American  authorities  on  a  question  arising  in  a  civil  case  involving  crime  or 
turpitude)  require  evidence  "strong,  distinct,  satisfactory  and  conclusive."  Har- 
grave  v.  llargrave,  9  Beav.  555;  and  see  23  N.  Y.  109. 

6  Thus  the  marriage  of  the  parents  may  be  presumed,  from  the  fact  that  the  father 
desired  to  marry  the  mother;  and  that  while  he  might  have  maintained  an  illicit  re- 
lation with  her  without  opposition  from  his  relatives,  he  abandoned  his  home  and 
parents  in  order  to  live  with  her.  Caujolle  v.  Ferrie,  23  N.  Y.  90,  108,  affi'g  26  Barb. 
177,  4  Bradf.  28. 

6  Cross  v.  Cross,  3  Paigo,  139,  Banbury  Peerage  Case  (above). 

7  Page  v.  Dennison,  5  Am.  L.  Reg  O.  S.  469,  s.  o  1   Grant,  377;  Co.  Litt.  244  a. 
But  see  Phillips  v.  Allen,  2  ^llen,  455.     But  it  the  birth  was  before  marriage,  though 
the  intercourse  was  under  promise  of  marriage,  the  child  is  illegitimate.      Cheney 
v.  Arnold,  15  N.  Y.  846. 

8  Proof  negativing  it  beyond  a  reasonable  doubt,  for  instance  showing  continued 
actual  separation,  with  only  interviews  at  which  such  intercourse  was  not  had,  may 
be  enough.     Cross  v.  Cross  (above) ;  Van  Aernatu  v.  Van  Ac-mam,  1  Barb.  Ch.  378. 

'  Page  v.  Dennison  (above). 
10  1  Best's  Ev.  464 ;  Banbury  Peerage  case  (above). 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.  89 

sumed  from  access.1  Where  access  giving  opportunity  for  sexual 
intercourse  is  shown,  such  that  the  husband  might  in  the  usual 
course  of  nature 2  be  the  father,  no  evidence  that  he  is  not,  can  be 
received,  except  such  as  tends  to  negative  his  having  had  such  in- 
tercourse.3 Such  evidence  is  competent,4  but  without  it  evi- 
dence of  the  wife's  simultaneous  adulterous  intercourse  with 
another  man,  is  incompetent,  for  if  there  be  a  possibility  of 
legitimacy  the  law  will  not  weigh  against  it  the  doubt.5 

33.  Parent^  Testimony  and  Declarations  as  to  Legitimacy.'} 
—Neither  husband  nor  wife  is  competent,  either  viva  voce  or  on 
deposition,  to  prove  or  disprove  non-access  or  non-intercourse, 
directly  or  indirectly,6  even  where  pregnancy  preceded  marriage7 
and  the  fact  that  the  other  parent  is  dead  does  not  alter  the  case.8 
Modern  statutes  abrogating  common-law  disqualifications  do  not 
affect  this  incompetency  unless  they  expressly  indicate  it.9  But 
either  is  a  competent  witness,10  and  the  declarations  of  either 
are  competent  after  his  or  her  death,  to  prove  legitimacy11  or 
illegitimacy 12  in  any  mode  not  involving  the  question  of  access, 
such  as  testifying  to  the  date  of  birth,13  or  on  the  question  of  mar- 
riage ; u  and  the  wife's  confession  of  her  own  adultery  is  compe- 
tent evidence  of  the  illegitimacy  of  her  offspring,  when  the  fact  of 
non-access  lias  been  shown  by  independent  evidence.15  Evidence 
of  the  treatment  of  the  child  by  the  husband  and  wife,  its  recog- 
nition or  non-recognition  by  them  and  by  the  family,  the  mention 
or  the  omission  of  the  husband  to  provide  for  it  in  a  will  provid- 
ing for  other  children,  &c.,  is  competent,  within  the  limits  of  the 
rule  as  to  hearsay  on  facts  of  pedigree.16  Evidence  that  one  since 
deceased  admitted  his  own  illegitimacy,  is  competent  against  those 
claiming  under  or  through  him.17 

1  Head  v.  Head,  1  Sim.  <fc  St.  150. 

2  For  presumption  as  to  period  of  gastation,  see  1  Best  Ev.  455,  and  standard 
treatises  on  Med.  Jurisp. 

3  Hanbury  Peerage  Case  (above). 

4  Head  v.  Head  (above). 

5  Bury  v.  Phillpot,  2  Mylne  &  K.  349;   Cross  v.  Cross,  3  Paiga,  139.     Compare, 
in  favor  of  admission  of  strong:  circumstantial  evidence  that  a  child  begottea  during 
wedlock  was  the  offspring  of  adultery,  1  liish.  Marr.  &  D.  §^  448,  449. 

•  1  Tayl.  Ev.  837,  §  868,  and  cases  cited. 

7  Pajje  v.  Dennison  (above),  472. 

8  1  Tayl.  Ev.  g§  837,  868.  ' 

•  Tioga  Co.  v.  South  Creek,  75  Penn.  St.  436. 

10  1  Tayl.  838,  §  868. 

11  BnlCN.  P.  '294,  295;  Rose.  N.  P.  46. 

12  Blackburn  v.  Crawfords,  3  Wall.  194.     Compare  Cope  v.  Cope,  1  Moo.  <fe  Rob. 
272;  Viall  v.  Smith,  6  R.  I.  422;  Gaines  v.  Relf,  12  How.  U.  S.  534 

13  Goodright  v.  Moss,  Cowp.  591.     But  not  sufficient  to  prove  illegitimacy  without 
ether  proof  of  non-access.     Patterson  v.  Gaines,  6  How.  U.  S.  550,  589. 

14  Caujolle  v.  Ferrie,  23  N.  Y.  104. 

15  Cross  v.  Cross,  3  Paige,  141 ;  1  Tayl.  Ev.  838,  §  868. 

"  1  Tayl  Ev.  580,  §  684 ;  and  see  Stegall  v.  Stegnll,  2  Brock.  Marsh.  256.  Except, 
perhaps,  where  the  child  is  proved  to  have  been  born  in  wedlock,  and  there  is  no  evi- 
dence of  non-access.  Page  v.  Dennison,  5  Am.  L.  lle^.  O.  S.  469,  s.  c.  1  Grant,  377. 

11  But  perhaps  not  against  others.    1  Tayl.  Ev.  571,  §  573. 


90  ACTIONS  LY  AND   AGAINST 

IY.  HEARSAY  AS  TO  FACTS  OF  FAMILY  HISTORY  (PEDIGREE). 

34.  Grounds  of  receiving  it:  and  its  Weight.'] — For  the  pres- 
ent purpose  I  use  the  term  "  Facts  of  Family  History,"  instead 
of  "  Pedigree,"  as  conveniently  characteristic  of  the  American 
rule,  which  admits  certain  hearsay  evidence  of  such  facts,  for  any 
legitimate  purpose  within  the  scope  of  this  chapter,  whether  di- 
rectly involved  in  the  issue  or  not,1  and  does  not  restrict  its  use, 
as  it  seems  the  English  rule  does,  to  cases  where  it  is  offered  for  a 
genealogical  purpose,  that  is  to  make  out  one  link  in  a  chain  of  pedi- 
gree.2    In  other  respects  the  American  and  English  rules  stand 
upon  the  same  principle,  viz.,  that  upon  such  questions  the  law  will 
receive  the  natural  effusions  of  a  party  who  Knew  the  truth,  and 
who  spoke  upon  an  occasion  where  his  mind  stood  in  an  even  posi- 
tion without  any  temptation  to  exceed  or  fall  short  of  the  truth.3 
The  value  of  such  evidence  is  enhanced  in  proportion  as  it  relates 
to  long  past  occurrences,4  other  evidence  of  which  is  impaired  or  lost 
by  lapse  of  time,5 — in  proportion,  too,  as  it  consists  of  contempora- 
neous declarations  or  records  formally 6  or  solemnly 7  made  by  per- 
sons naturally  cognizant  of  the  facts,  and  who  would  have  no  motive 
to  misrepresent ;   and  in  proportion  as  those  from  whom  it  pro- 
ceeded bore  such  a  relation  as  created  an  interest  to  ascertain  and 
perpetuate  the  truth ; 8  and,  if  consisting  of  an  oral  declaration,  by 
the  naturalness  of  the  circumstances  which  led  to  its  being  made  ;9 
and,  if  consisting  of  records,  in  proportion  as  they  have  been  pub- 
lic, open,  and -well  known  in  the  family,  thus  acquiring  such  con- 
firmation as  the  tacit  consent  of  those  interested  can  give.10    With- 
out some  degree  of  these  characteristics  it  is  not  admissible.     At 
best  it  is  weak  evidence,11  its  value  often  depending  upon  the  ab- 
sence of  other  sources,  and  although  the  weight  of  such  evidence 
is  for  the  jury,  it  is  proper  for  the  court  to  instruct  them  whether, 
upon  a  view  of  the  whole,  it  is  sufficient  to  sustain  a  finding.13 

35.  W ft  at  facts  are  within  the  rule.']— The  facts  of  family 
history  which  may  be  proved  by  hearsay  from  proper  sources,  are 

I  North  Brookfield  v.  Warren,  10  Gray,  174,  and  other  cases  cited  in  next  para- 
graph ;    Primm   v.  Stewart,  7  Tex.  178.      The  contrary  is  held  in  settlement  cases, 
«bc.,  where  marriage,  <fcc.,  is  the  substantive  fact.     Westfield  v.  Warren,  8  llalst.  249. 

8  1  Tayl.  Ev.  675,  677,  without  sufficient  reason.  1  Phil.  Ev.  C.  &  II.  N.  252, 
uu  91. 

3  Whitelocke  v.  Baker,  14  Vea.  514. 

4  In  proving  recent  events,  where  the  fact  is  directly  in  issue,  stricter  proof  may 
be  reasonably  required.     Rose.  N.  P.  49. 

'  Stouvenel  v.  Stephens,  26  How.  Pr.  244,  nnd  cases  cited. 

6  Thus  a  formal  "family  record"  in  a  Bible  requires  less  authentication  than  a 
similar  memorandum  casually  made  elsewhere. 

1  Thus  dying  declarations  of  legitimacy  are  entitled  to  special  weight.  Caujolle 
V.  Ferric,  23  N.  Y.  90,  94. 

8  Per  Ld.  ELDON,  Walker  v.  Wingfield,  18  Yes.  611. 

»ld. 

10  North  Brookfield  v.  "Warren,  16  Gray,  174,  per  BIGELOW,  C.  J. 

II  More  wood  v.  Wood,  14  East,  330. 
"  Sprigg  v.  Moale,  28  Md.  497,  509. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.  91 

the  following : — birth ;  *  living  or  survival ; 2  marriage  ; s  issue  or 
want  of  issue  ;4  death  ;5  the  times,  either  definite6  or  relative,7  of 
these  facts ;  relative  age  or  seniority ; 8  name ; 9  relationship  gen- 
erally ; 10  its  degree  ; u  in  some  sense  legitimacy  and  the  contrary ; u 
and  the  place  of  residence,  when  proved  for  purpose  of  identifica- 
tion.13 At  this  limit  the  rule  stops.  It  does  not  admit  hearsay 
as  to  a  specific  fact,  however  closely  connected  with  these  facts 
of  family  history,  if  one  which,  in  its  nature  is  susceptible  of 
being  proved  by  witnesses  speaking  from  their  own  knowledge, 
even  although  all  such  witnesses  are  dead.14  The  virtue  of  the 
evidence  depends  on  the  fact  being  a  salient  fact  in  a  family  his- 
tory which  concerns  the  declarant.  A  declaration  as  to  a  fact  of 
this  character  is  not  excluded  because  the  fact  is  only  incidentally 
in  issue ;  and  on  the  other  hand,  a  declaration  as  to  an  ordinary 
fact  is  not  made  competent  by  its  enabling  to  fix  the  date  or  ex- 
istence of  a  fact  of  family  history.15 

36.  By  Whose  declarations  such  facts  may  be  proved.] — 
To  render  the  evidence  competent  (unless  it  is  admissible  as  mat- 
ter of  general  repute  under  the  rule  stated  below),  it  must  appear 
that  the  declarant,  or  source  of  the  witness's  information,  was  a 
deceased 16  member  of  the  family,  that  is  to  say  legally  n  related  by 
blood  or  marriage,18  to  the  family  whose  history  the  fact  concerns. 
Therefore  the  witness  must  name  the  source  of  information,19  and 


I  North  Brookfield  v.  Warren,  16  Gray,  174;  Am.  Life  Ins.  Co.  v.  Rosenagle,  77 
Penn.  St.  507,  516. 

9  Johnson  v.  Pembroke,  1 1  East,  504. 

8  Caujolle  v.  Ferrie,  23  N.  Y.  90,  and  see  paragraph  18  (above). 
4  People  v.  Fulton  Fire  Ins.  Co.  25  Wend.  208  ;  and  see  paragraph  25  and  notes. 
B  Masons  v.  Fuller,  45  Vt.  29;  1  Tayl.  Ev.  570,  §  572. 
6  Roe  v.  Rawlins,  7  East,  290;  Webb  v.  Richardson,  42  Vt.  465. 
.7  Bridger  v.  Huett,  2  Fost.  &  F.  35. 

8  Johnson  v.  Pembroke.  11  East,  504. 

9  Per  Ld.  BROUGHAM,  Monkton  v.  Att.  Gen.  2  Russ.  &  M.  158. 

10  Doe  v.  Randall,  2  Moore  &  P.  20,  20 ;  Vowles  v.  Young.  13  Ves.  147. 

II  Webb  v.  Richardson,  42  Vt.  465  ;  and  see  Chapman  v.  Ch  ipman,  2  Conn.  350. 

12  See  paragraph  33. 

13  See  Cuddy  v.  Brown,  78  111.  415  ;  Sheilds  v.  Boucher,  1  Do  Gex  <fe  Sra.  40,  s.  p. 
Doe  v.  Randall,  2  Moore  <fe  P.  20;  see  1  Tayl.  Ev.  578,  §  582. 

14  Thus  hearsay  as  "to  legal  status,  as  slave  or  free,  is  not  competent.    Mima  Queen 
v.  Hepburn,  7  Cranch,  290,  295.    Nor  is  hearsay  as  to  place  of  birth  or  death.    Town 
of  Union  v.  Town  of  Plainneld,  39  Conn.  5(>3 ;  Monkton  v.  Att.  Gen.  2  Puss.  &  M. 
156,  L-.\.  BROUGHAM;  McCarty  v.  Doming,  4  Lans.  410.     But  see  1  Whart.  Ev.  §  208. 
Aa  to  whether  siatement  of  a  legal  conclusion,  such  as  that  one  was  "  heir,"  or  "  could 
get  nothing  by  law,"  and  the  like,  is  competent,  the  authorities  are  in  conflict.    I:i  tho 
affirmative,  see  Doe  v.  Randall,  2  Moore  &  P.  20;  Doe  v.  Davies,  10  Q  15.  314.    In 
the  negative,  Chapman  v.  Chapman,  2   Conn.  350.      Compare  Viall  v.  bmith,  6 
R.  I.  417. 

15  1  Tayl.  Ev.  576. 

16  E;nerson  v.  White,  29  N.  H.  (9  Fost.)  491,  and  cases  cited. 
"  1  Tayl.  Ev.  569. 

18  Doe  v.  Randall,  2  Moore  &  P.  20.     Where  tho  declarant's  tie  to  the  family  was 
by  marriage,  the  fact  that  it  had  been  dissolved  by  death  before  the  declaration,  does 
not  render  tho  declaration  incompetent.     1  Tayl.  Ev.  571. 

19  Entire  certainty  not  necessary.     Scott  v.  Ratcliff,  5  Pet.  81. 


92  ACTIONS  BY  AND  AGAINST 

show  affirmatively  that  it  was  a  relative  or  connection,1  (though 
the  degree  need  not  be  stated,2)  who  is  since  deceased.8  It  is  not 
enough  that  the  adversary  might  bring  out  the  contrary  by  cross- 
examination.4 

It  is  enough  to  show  that  the  declarant  was  thus  connected  with 
the  family,  without  showing  him  to  be  a  connection  of  the  person 
whose  connection  with  the  family  is  to  be  established ; 5  ana,  con- 
versely, relationship  of  the  declarant  with  the  particular  person 
is  sufficient  to  admit  his  declarations  of  the  relationship  of  that 
person  to  the  family.6  But  his  relationship  to  one  or  the  other 
must  be  established  by  other  evidence  than  the  declarations  them- 
selves;7 and  this  is  a  preliminary  question  for  the  judge,8  and 
slight  evidence  that  the  declarant  was  connected,  even  without 
showing  precise  degree  of  relationship,  seems  to  be  enough.9  But 
if  the  relationship  is  remote,  the  question  will  be  whether  the 
connection  was  such  as  to  bring  the  declarant  within  the  natural 
probability  of  knowledge  and  correctness.10 

It  is  not,  however,  necessary  that  the  declarant  should  have 
had  personal  knowledge,11  nor  need  the  declarations  have  been 
contemporaneous  with  the  event,12  nor  indicate  the  source  of  the 
declarant's  information.13 

37.  Family  records.'] — Records  of  such  facts  of  family  history, 
made  or  preserved  as  such  by  a  member  of  the  family,  are  com- 

1  Waldron  v.  Tattle,  4  N.  H.  371,  378  ;  Emerson  v.  White,  29  Id.  491 ;  s.  p.  Chap- 
man v.  Chapman,  2  Conn.  347. 

2  Vowles  v.  Young,  13  Ves.  146,  Ld.  ERSKIXE. 

3  Greenleaf  v.  Dubuque,  <fec.  R.  R.  Co.  30  Iowa,  301 ;  Butler  v.  Mountgnrret,  7  H. 
of  L.  Cas.  633;  Emerson  v.  White  (above);  Waldron  v.  Tuttle  (above).     In  the  two 
last  mentioned  cases  the  opinion  is  also  expressed,  that  it  must  affirmatively  appear 
that  the  declarants  had  no  interest  to  misrepresent;  but  this  is  not  sound  if  intended 
to  require  affirmative  evidence  of  want  of  interest.     It  is  enough,  in  the  first  instance, 
to  show  a  relationship  that  is  entirely  free  from  the  indication  of  any  such  interest. 

4  Emerson  v.  White  (above).    Contra,  Webb  v.  Richardson,  42  Vt.  466. 

6  Monkton  v.  Attorney  General,  2  Russ.  <fe  M.  156,  Ld.  BROUGHAM. 
•Id. 

7  Thus,  to  prove  a  marriage,  for  the  purpose  of  lesitimating  the  issue  as  heirs  of 
the  alleged  husband,  evidence  of  a  declaration  of  a  relative  of  the  woman,  is  not  com- 
petent in  the  first  instance,  because  the  declarant  must  first  be  shown  to  be  connected 
with  the  family  of  the  man.     Blackburn  v.  Crawfords,  3  Wall.  187,  and  cases  cited. 
But  compare  Jewell  v  Jewell,  1  How.  U.  S.  219,  231,  where  declarations  of  the  hus- 
band of  a  daughter,  that  his  wife's  mother  was  not  married,  were  held  competent. 
See  also  Alexander  v.  Chamberlain,  1  Supm.  ft.  (T.  <fe  C.)  600,  and  cases  citei 

8  Even  where  the  question  is  tho  same  with  that  on  which  the  jury  are  to  pass. 
Doe  v.  Davies,  10  Q.  B.  323.     Contra,  Dyke  v.  Williams,  2  Sw.  &  Tr.  491. 

9  1  TayL  Ev.  573,  §  576. 

10  Chapman  v.  Chapman,  2  Conn.  349.     The  tradition  must  be  from  persons  having 
such  a  connection  with  the  party  to  whom  it  relates,  that  it  is  natural  and  likely 
from  their  domestic  habits  and  connections,  that  they  are  speaking  the  truth,  and 
that  they  could  not  be  mistaken.     Whitelocke  v.  Baker,  13  Ves.  511,  614,  Ld.  ELDON. 
To  render  objection  to  the  preliminary  proof  available  as  error,  the  proof  must  ap- 
pear in  the  exceptions.     Whitcher  v.  McLaughlin,  116  Mass.  167. 

11  Jewell  v.  Jewell,  1  How.  U.  S.  219,  231.     But  declarations  of  his  own  age  have 
been  held  incompetent.     Clark  v.  Trinity  Ch.  5  Watts  &  S.  (Penn.)  266. 

11  1  Tayl.  Ev.  572,  §  675. 

13  Jewell  v.  Jewell  (above).    Compare  7  Scott  N.  R.  193,  213. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.          93 

petent — for  instance,  entries  of  births,  deaths  and  marriages,  in 
the  family  Bible,1  or  other  book 2  or  memorandum-book ; 3  a  chart 
or  genealogical  table  preserved  as  such  in  the  family ; 4  almost  any 
document  which,  even  though  not  evidence  in  its  own  character, 
has  been  preserved  as  a  memorial  by  the  family,  such  as  a  mar- 
riage certificate,5  transcript  of  a  parish  register,8  an  ancient  can- 
celed will,7  a  ring  worn  publicly  by  a  member  of  the  family,  stat- 
ing the  date  of  death  of  the  person  whose  name  is  engraved  upon 
it.  Except  in  case  of  a  tombstone  inscription,  or  a  formal  fam- 
ily record  such  as  is  usually  kept  in  a  Bible,  there  must  ordinarily 
be  evidence  that  the  entry  or  document  is  in  the  handwriting  of  a 
deceased  9  member  of  the  family,  or  such  evidence  of  its  having 
been  preserved  and  treated  in  the  family  as  containing  a  family 
memorial,  as  to  give  it  the  character  of  a  declaration  by  the  fam- 
ily or  of  some  01  its  members.10  In  the  case  of  a  tombstone,11  or  a 
Bible  shown  to  have  been  the  family  Bible,13  this  is  presumed,  and 
proof  of  handwriting  or  direction  to  make  inscription  is  not  re- 
quired. The  existence  of  errors  in  a  family  record,  and  the  fact 
that  it  purports  to  be  founded  partly  on  hearsay,  aifect  its  credi- 
bility rather  than  its  competency,13  but  may  render  it  incompetent 
as  to  matters  obviously  stated  without  means  of  knowledge.14 
The  handing  down  of  the  record  in  the  family,  may  be  proved 
by  oral  declarations  of  members  of  the  family.1* 

38.  Other  written  declarations. ~\ — Recitals  or  other  state- 
ments in  an  instrument  executed  by  a  member  of  the  family, 
since  deceased,  such  as  a  will  recognizing  children ; 16  or  a  deed  m 


I  Lewis  v.  Marshall,  5  Pet.  470,  476  ;  Berkeley  Peerage  Case,  4  Camp.  401. 
8  A  hymn  book.     Collins  v.  Grantham,  12  Md.  440. 

•*  A  memorandum-book  containing  a  record  of  inoculation.  Clara  v.  Ewell,  2 
Cranch  C.  Ct.  208. 

North  Brookfield  v.  "Warren,  16  Gray,  171 ;  Goodright  v.  Moss,  Cowp.  594. 
Doe  v.  Davies,  10  Q.  B.  314. 
Kansas,  <fcc.  Rw.  Co.  v.  Miller,  2  CoL  T.  460,  462. 
Johnson  v.  Pembroke,  11  East,  504. 

Rose.  N.  P.  47,  citing  dictum  in  2  Russ.  <fc  M.  158.     So  of  the  fact  of  the  family 
wearing  mourning.     Succession  of  Jones,  12  La.  Ann.  397. 

*  Or,  perhaps,  of  one  beyond  seas.  Collins  v.  Grantham,  12  Ind.  440.  Where 
the  member  of  the  family  who  made  the  entry,  is  incompetent  as  a  witness,  he  may 
be  admitted  to  prove  the  entry.  Carkshadden  v.  Poorman,  10  Watts,  82. 

10  Hood  v.  Beauchamp,  8  Sim.  26.  Preservation  among  the  muniments  of  the 
family  renders  competent,  especially  if  the  document  waa  against  interest.  Roe  v. 
Rawlings,  7  East,  291. 

II  Rose.  N.  P.  47.     Inscription  may  be  proved  by  a  witness.     16  Gray.  171. 
»  Rose.  N.  P.  47. 

13  Monkton  v.  Atty.  Gen.  2  Russ.  <fc  Myl.  147.      Even  the  testimony  of  a  witness, 
that  the  memorial  was  not  considered  in  the  family  as  a  correct  one,  without  specify- 
ing in  what  respect,  is  held  to  affect  not  the  competency  but  the  credibility  only. 
Southern  Life  Ins.  Co.  v.  Wilkinson,  63  Geo.  535. 

14  Davies  v.  Lowndes,  5  New  Cas.  161 ;  6  M.  «fe  G.  471,  612,  625. 
16  Doe  v.  Davies,  10  Q.  B  824,  Ld.  DENMAX. 

16  Russell  v.  Jackson,  22  Wend.  276,  affi'g  4  Id.  643;  Cowan  T.  Hite.  2  A.  K. 
Marsh.  (Ky.)  238;  Skeene  v.  Fishback,  1  A.  K.  Marsh.  (Ky.)  356;  Shuman  v.  Shu- 
ma:),  -27  Penn.  St.  90. 


94  ACTIONS  BY  AND  AGAINST 

•which  parties  are  designated,  and  which  they  execute,  as  husband 
and  wife;1  or  in  which  the  woman  joins  for  the  purpose  of  bar- 
ring her  dower;2  or  which  a  party  signs  with  the  addition 
"  child,"  or  "  heir,"  or  the  like,3  although  not  competent  on  the 
question  of  title,4  are  competent  as  declarations  within  the  rule. 
And  although  the  original  itself  must  ordinarily  be  produced,5 
yet  in  case  of  an  ancient  instrument  the  record  or  probate,  with 
appropriate  evidence  to  identify  it  as  a  family  or  public  memo- 
rial, is  competent.8  Letters  purporting  to  have  come  from  the 
deceased,  and  containing  declarations  as  to  the  facts  of  his  family 
history,  are  competent  if  proved  to  be  in  his  hand-writing  by  the 
knowledge  of  a  witness  who  is  acquainted  with  it,  or  by  the  be- 
lief of  a  witness  who  received  them  in  due  course  of  correspond- 
ence, and  acted  on  them  as  such.  The  envelopes,  if  existing, 
should  be  produced,  and  the  post-mark,  or  the  witness's  testimony 
to  it  if  the  envelope  has  been  destroyed,  is  prima  facie  evidence 
that  it  was  deposited  at  the  place  and  time  indicated  by  the  mark.7 
Statements  made  in  a  deposition  which  was  not  taken  between 
the  parties  to  the  action,  or  those  under  whom  they  claim,  are 
not  regarded  as  admissible  as  declarations,  because  artificially 
drawn  forth  without  cross-examination,  especially  when  made 
after  dispute  arose.8 

39.  General  family  repute.! — Some  facts  at  least  of  family 
history, — such  as  death,  issue  or  failure  of  issue,  kinship,  name,  and 
marriage, — may  be  proved  by  general  reputation  in  the  family, 
upon  the  testimony  of  a  witness  whose  knowledge  of  that  repute 
and  of  the  conduct  of  members  toward  each  other,  is  that  which 
usually  exists  among  intimate  acquaintances.9  But  the  testimony 
of  witnesses  who  are  not  connected  with  the  family,  know  noth- 
ing personally  of  the  facts  to  which  they  speak,  and  have  not 
derived  their  information  from  such  persons  as  had  any  connec- 
tion or  particular  acquaintance  with  the  family,  but  can  only  state 
loose  hearsay  from  unknown  sources,  is  not  sufficient  to  go  to  the 
jury.10 


1  Hicks  v.  Cochran,  4  Edw.  107. 

J  Rose  v.  Clark,  8  Paige,  674,  581,  and  c-ises  cited. 

8  Jackson  v.  Cooley,  8  Johns.  128;  Doe  v.  Davies,  10  Q.  B.  325. 

4  Skeene  v.  Fishback  (above). 

8  Doe  v.  Emerod,  1  Moo.  <fe  Rob.  466. 

6  Russell  v.  Jackson,  22  Wend.  276,  affi'g  4  Id.  543.     As  to  value  and  effect  of  an- 
cient certificates,  see  Hunt  v.  Johnson,  19  N.  Y.  279. 

7  Kansas,  <fcc.  Rw.  Co.  v.  Miller,  2  Col.  T.  460. 

8  Berkeley  1'eerage  Case,  4  Carnpb.  401.  Otherwise  of  an  ex  parte  affidavit.    Hurst 
T.  Jones,  Wall.  Jr.  373. 

9  Eaton  v.  Tallmndge,  24  Wise.  217,  222;  Bridger  v.  Huett,  2  Fost.  <t  F.  35  ; 
Viall  v.  Smith,  6  R.  I.  419;  Spears  v.  Burton,  31  Miss.  547,  654;  Jackson  v.  Bone- 
ham,  15  Johns.  226;  Russell  v.  Jackson,  22  Wend.  276,  affi'g  4  Id.  643;  and  see  par- 
agraphs 1,  8,  and  18.    To  the  contrary,  see  language  of  some  authorities  cited  under 
paragraph  36. 

10  Jackson  v.  Browner,  18  Johns.  37. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.     95 

40.  Declarations  made  in  view  of  Controversy] — It  ia  not 
every  kind  or  degree  of  interested  feeling  on  the  part  of  the  de- 
clarant that  will  exclude  a  declaration.   The  law,  while  it  assumes, 
as  the  foundation  of  the  rule,  the  existence  of  an  interest,  created 
by  domestic  ties,  to  know  and  hand  down  the  truth,  recognizes 
that  such  declarations  are  often  accompanied  with  a  feeling  of  in- 
terest which  will  cast  suspicion  on  them,  without  rendering  them 
incompetent  ;J  and  even  the  legal  interest  of  a  grantor,  in  the  sup- 
port of  the  recitals  in  his  deed,  does  not  exclude  them.2    But  if 
it  appears  by  either  the  declaration  itself,3  or   other  evidence, 
that  at  the  time  the  declaration  was  made,  a  discussion  and  con- 
troversy had  arisen  (though  merely  in  the  family,  and  before  litiga- 
tion) 4  as  to  the  fact  of  family  history  sought  to  be  proved,5  the 
declaration  is  incompetent.6    It  has  been  said  that  it  makes  no 
difference  that  the  dispute  was  raised  for  the  purpose  of  excluding 
declarations,  or  that  the  existence  of  the  dispute  was  unknown  to 
the  declarant.7    Declarations  made  for  purpose  of  evidence  would 
not  be  competent  ;8  but  this  must  be  taken  in  connection  with  the 
existence  either  of  controversy  or  adverse  interest,  for  one  proper 
object  of  formal  family  records  is  to  preserve  evidence  in  case 
any  question  should  arise.9    Writings  dated  more  than  thirty 
years  past,  and  coming  from  the  proper  custody,  are  presumed  to 
nave  been  made  at  the  time  of  their  date,  as  against  the  sugges- 
tion that  they  were  made  after  controversy  had  arisen.10 

41.  Repute   "beyond  the  family — Acquaintance — Newspaper 
notice — Insurance.] — General  repute,  among  one's  acquaintances, 
that  he  had  died,  is  competent,  either  when  he  left  no  kindred,11 
or,  in  connection  with  family  repute,  when  he  died  abroad.12     In 
the  absence  of  any  direct  evidence,  the  testimony  of  those  who 
naturally  would  be  likely  to  hear  of  the  absentee  if  living — such 
as  one  residing  near  the  estate  of  a  tenant  for  life,  though  not  a 
member  of  the  family — that  he  had  not  been  heard  of  for  years, 

I  LI  DEXMAN,  Doe  v.  Davis,  10  Q.  B.  325. 
JId. 

8  Butler  v.  Mountgarret,  7  II.  of  L.  Cas.  C45. 

4  It  is  the  beginning  of  dispute,  involving  the  very  point  in  question,  not  that  of 
the  state  of  facts  from  which  the  dispute  sprang,  nor  that  of  resulting  litigation, 
which  terminates  the  competency.  Shedden  v.  Patrick,  2  Sw.  <fe  Tr.  170,  188;  B.  o. 
L.  J.  30  P.  M.  A  A.  (1860-1861)  217,  282. 

6  Elliott  v.  Piersol,  1  Pet.  337 ;  liutler  v.  Mountgarret,  7  H.  of  L.  Cas.  637. 

*  Lord  BROUGHAM'S  view  was  that  it  is  not  suffident  that  the  declarant  w.is  in  the 
same  situation  touching  the  matter  in  contest  with  the  party  relying  upon  the  dec- 
laration, but  it  is  for  the  objector  to  show  either  that  the  declaration  was  made  after 
controversy  commenced,  or  under  bias.     Monkton  v.  Att.  Gen.  2  Russ.  &  M.  160. 

7  Shedden  v.  Patrick  (above). 

8  Chapman  v  Chapman,  2  Conn.  347,  SWIFT,  Ch.  J. 

•  See  Berkeley  Peerage  Case,  4  Campb.  401. 

10  Davies  v.  Lowndes,  7  Scott  N.  R.  214,  and  cases  cited.  As  to  recont  writings, 
compare  Potez  v.  Glossop.  2  Exch.  191  ;  Butler  v.  Mountgarret,  7  II.  of  L.  Cas.  647; 
and  c  ises  cited  on  p.  14,  n.  5,  of  this  voL 

II  Ringhouae  v.  Keever,  49  111.  47<X 

"  Ewing  v.  Savary,  3  Bibb,  235,  238. 


96  ACTIONS  BY  AND  AGAINST 

is  competent.1  The  courts,  also,  have  taken  notice  of  facts  affect- 
ing pedigree  contained  in  public  histories,  biographies  and  com- 
pilations like  that  of  "  Debrett's  Peerage."  3  But  death  abroad 
cannot  be  proved  by  a  newspaper  notice  published  here,3  and  the 
better  opinion  is  that  to  render  competent  newspaper  announce- 
ments of  facts  of  family  history,  there  must  be  something  to 
connect  them  either  with  the  family  or  a  member,  or  with  com- 
mon repute  properly  in  evidence.4  Upon  this  principle  of  the  prob- 
able truth  of  a  general  conviction  among  those  likely  to  know  and 
best  qualified  to  judge,  attested  by  their  acting  upon  it,  the  courts 
have  received  the  fact  that  insurers  have  paid  a  loss  upon  a  vessel 
not  heard  from,  as  relevant  to  the  presumption  of  death  of  one  on 
board ; 5  but,  on  the  other  hand,  mere  memoranda,  though  found 
in  official  record  books,  are  not  competent,6  nor  is  an  assumption 
of  the  right  of  suffrage  or  a  submission  to  taxation  competent 
evidence  that  the  person  was  of  age,  except  against  himself.7 

42.  Best  and  secondary  evidence^ — Oral  declarations  are  equal- 
ly primary  as  family  records  or  other  documents  of  the  nature  of 
hearsay ;  *  but  the  competency  of  each  depends  not,  indeed,  on 
entire  absence  of  more  satisfactory  evidence,9  but  on  the  death  of 
the  declarant;  and  if  he  is  alive,  and  present  or  within  reach  of 
process,  the  declaration,  whether  oral  or  written,  is  incompetent,10 
except  as  against  him  and  those  claiming  under  him,  or  by  way 
of  corroboration  of  testimony  given  by  the  declarant  as  a  wit- 
ness.11 Where  the  original  family  record  is  proved  to  have  been 
lost,12  or  in  any  other  way  properly  accounted  for,  a  copy  is  ad- 
missible ;  otherwise  not.13 


1  Doe  v.  Deakin,  4  B.  <fc  Aid.  433  ;  Flynn  v.  Coffee,  12  Allen,  133.  But  common 
repute  among  his  acquaintances,  not  founded  primarily  on  the  fact  of  death,  but  on 
belief  that  his  body  was  found  and  buried  at  a  particular  time  and  place,  is  not  com- 
petent, unless  after  great  lapse  of  time.  Jackson  v.  Etz,  6  Cow.  316. 

8  Russell  v.  Jackson,  22  Wend.  276,  affi'g  4  Id.  543. 

3  Fosgate  v.  Herkimer  Mfg.  Co.  9  Barb.  287,  295. 

4  Compare  Redgrave  v.   Redgrave.  38  Md.  101 ;   Jewell  v.  Jewell,  1  How.  U.  S. 
219,  232;    Ring  v.  Huntington,  1  Mill  (S.  C.)  Const.  162  ;    Mann  v.  Russell,  11  111. 
586;  Henkle  v.  Smith,  21  Id.  238;  Sweigar  v.  Lowmaster,  14  Serg.  &  R.  200. 

8  See  paragraph  5  (above). 

6  Ridgeley  v.  Johnson,  11  Barb.  627 ;  see  Caujolle  v.  Ferric,  23  N.  T.  90. 
1  Clark  v.  Trinity  Church,  5  Watts  &  S.  (Penn.)  266.    The  declarations  of  the  dece- 
dent as  to  his  age  are  not  competent. 

8  Clements  v.  Hunt,  1  Jones  (N.  C.)  L.  400. 

9  1  Tayl.  Ev.  569,  574;  compare  Fosgate  v.  Hertimer  Mfg.  Co.  12  Barb.  352. 

10  Leggett  v.  Boyd,  3  Wend.  376  ;  Campbell  v.  Wilson,  23  Tex.  252 ;  Robinson  v. 
Blakely,  4  Rich.  L.  (S.  C.)  586. 

11  Wiseman  v.  Cornish,  8  Jones  (N.  C.)  L.  218. 

12  Whitcher  v.  McLaughlin,  115  Mass.  167. 

13  Ryerson  v.  Grover,  1  N.  J.  L.  (Coxe),  458.  A  recital  in  a  deposition  not  enough. 
Greenleaf  v.  Dubuque,  <fcc.  R.  R.  Co.  30  Iowa,  301.     It  has  been  held  that  the  age  of 
a  member  of  a  family,  copied  by  a  son  into  the  family  Bible  from  another  book 
where  the  original  entries  were  made  by  his  father,  is  not  competent  without  ac- 
counting for  the  entries  of  the  father.    Curtis  v.  Patton,  6  Serg.  <fe  R.  135.    But  they 
might  be  made  competent  by  evidence  establishing  the  family  Bible  as  the  recognized 
family  record. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.    97 


Y. — REGISTRY  OF  FACTS  OF  FAMILY  HISTOKY  (PEDIGREE.) 

43.  Registries  authorized  ly  law.~\ — A  registry,  whether  of 
birth,  marriage,  death  or  burial,  kept  pursuant  to  law  (statutory 
or  unwritten),  is  competent  evidence  of  the  main  fact  and  its 
date,1  and  of  any  other  fact  which  the  law  or  statute  directed  the 
officer  to  ascertain  and  record ; 2  and  it  is  not  incompetent  because 
the  statute  does  not  expressly  declare  it  to  be  evidence.3 

To  prove  an  entry,  in  such  a  register  kept  within  the  State, 
the  book  may  be  produced  by  the  present  keeper  of  the  record, 
or  other  witness  who  can  testify  that  it  comes  from  the  proper 
custody,  with  evidence  either  that  it  is  the  official  register,  and 
that  he  who  was  the  keeper  at  the  time  of  the  entry,  made  the 
entry,  or  that  the  entries  relied  on,  or  at  least  some  of  them,  are 
in  his  handwriting,  and  that  the  book  was  handed  down  by  the 
present  keeper's  predecessors  in  office  as  the  official  register.4 
Instead  of  the  book,  a  copy  in  full  of  the  particular  entries  relied 
on  may  be  produced,5  authenticated  (if  the  statute  authorizes 
certified  copies)  by  the  certificate  of  the  keoper  of  the  record,8 
or  authenticated  by  the  oath  of  a  witness,  as  in  the  case  of  a 
voluntary  register  stated  below. 

A  register  kept  pursuant  to  the  law  of  a  sister  State  or  foreign 
nation,  may  be  proved  by  proving  the  law  which  authorized  it,7 
and  that  it  was  made  and  preserved  according  to  that  law,  and 
that  the  person  certifying  was  the  proper  officer ; 8  and  by  produc- 


1  See  paragraphs  2,  16,  and  28  (above). 

2  Derby  v.  Salem,  30  Vt.  722.   But  as  to  a  fact  not  within  his  personal  knowledge, 
it  is,  of  course,  slight  evidence,  and  without  the  statute  would  not  be  competent. 
But  a  defective  record,  or  the  entry  of  facta  of  which  the  entry  is  not  evidence,  may 
be  made  competent  by  tracing  it  to  information  furnished  by  a  competent  family 
source,  making  it  admissible  as  hearsay.     Viall  v.  Smith,  6  R.  I.  421. 

3  State  v.  Wallace,' 9  N.  H.  615;  and  see  Wedgwood's  Case,  8  Greenl.  75. 

4  Doe  d.  Jaycoks  v.  Gilliam,  3  Murph.  (N.  C.)  47 ;    Sumner  v.  Seebec,  3  Greenl. 
223.     Absence  of  authentication  of  an  entry  in  an  ancient  record  not  fatal.     Ex*rs 
of  Booge  v.  Parsons,  2  Vt.  456. 

s  An  official  certified  copy  should  be  a  literal  exemplification  of  each  entry  relied 
on,  but  a  sworn  copy  produced  by  a  witness  may  be  the  tabulation  of  several  entries 
if  the  witness  swears  that  he  extracted  the  details  from  the  register.  American  Life 
Ins.  <fe  Trust  Co.  v.  Rosenagle,  77  Penn.  St.  550.  Where  the  statute  requires  the 
officiating  clergyman  to  certify  his  act  to  the  county  clerk  for  record,  the  proper  evi- 
dence is  a  copy  of  the  certificate,  not  merely  of  the  memorandum  of  the  clerk.  Niles 
v.  Spragne,  13  Iowa,  198 ;  compare  Fox  v.  Lambson.  3  Halst.  275,  280.  As  to  delay  in 
the  clergyman's  return,  see  People  v.  Lambert,  5  Mich.  849  ;  1  Bish.  Marr.  &,  D.  §  468. 

•  N.  Y.  Code  Civ.  Pro.  §  928  (3  R.  S.  6th  ed.  150,  §  17);   and  see  Jackson  v. 
People,  3  111.  (2  Scam.)  231. 

*  See  pp.  22  and  23  of  this  vol.,  paragraphs  9, 10;  and  BOO  Morrisey  v.  "Wiggins 
Ferry  Co.  47  Mo.  521.     The  fact  that  the  record  wns  kept  and  preserved  pursuant  to 
foreign  law  may  be  proved  by  the  custodian,  though  not  a  lawyer,  for  he  is  in  a  po- 
sition to  make  it  probable  that  he  knows  the  law.     Am.  Life  Ins.  Co.  v.  Rosenagle, 
77  Penn.  St.  515. 

8  State  v.  Horn,  43  Vt.  20;  State  v.  Dooris,  40  Conn.  145.  A  copy  of  a  marriage 
contract,  the  original  of  which  was  executed  and  deposited  in  the  public  archives  of 
a  foreign  State,  may  be  admitted,  not  without  authentication,  but  by  a  sworn  copy 
or  a  copy  certified  by  the  officers  of  our  government  when  they  have  succeeded  to  the 

f 


98  ACTIONS  BY  AND  AGAINST 

ing  a  copy,  authenticated  as  such  according  to  the  mode  pre- 
scribed by  the  law  of  the  forum  for  authenticating  foreign  official 
acts,1  or  authenticated  by  the  oath  of  a  witness,2  as  in  the  case  of 
a  voluntary  register  stated  below. 

The  registry  being  duly  proved,  compliance  with  preliminary 
formalities  is  presumed.8 

44.  Registries  not  authorized  l>y  law.~\ — A  register  kept  with- 
out authority  of  law  is  competent,  in  evidence  of  the  main  fact, 
whether  of  marriage,4  baptism,5  or  burial,6  and  of  its  date,  but  not 
of  other  facts  stated  in  it,  such  as  date  or  place  of  birth  or  death ; ' 
but,  to  admit  it,  it  must  appear  that  it  was  kept  by  the  proper 
officer,8  or  by  the  officiating  clergyman,9  pursuant  to  his  duty  or 
in  the  usual  course  of  his  functions,10  and  that  he  is  since  de- 
ceased ;u  but  the  fact  that  he  was  not  a  sworn  officer,12  or  that  he 
kept  it  not  as  a  public  record  belonging  to  the  parish,  but  as  his 
private  memorandum,13  does  not  render  it  incompetent,  if  he  was 
under  a  duty  to  keep  it.  It  should  also  appear  that  the  register 
is  produced  from  the  custody  of  his  successor,  the  entry  being  in 
his  own  handwriting  and  appearing  to  have  been  made  contem- 
poraneously with  the  performance  of  the  rite,  and  before  contro- 
versy arose,  with  no  apparent  inducement  to  misstate  nor  inter- 
est adverse  to  his  official  duty ;  and  in  such  case  additional 
memoranda  on  the  register,  of  fee  paid,  is  not  necessary  to  render 
the  paper  competent.14  If  the  entries  were  made  first  in  a  day- 
book, and  then  transferred  to  the  register,  the  day-book  is  not, 
but  the  register  is,  evidence  of  the  act  entered  in  the  register.15 

If  the  record  is  of  a  public  nature,  such  as  that  of  a  church,  an 
examined  copy  of  the  entries  relied  on,  without  production  of  the 


foreign  authority  and  have  custody  of  the  original,  or  certified  by  the  foreign  officers 
who,  at  the  time  of  certifying,  had  custody  of  the  original,  with  proof  that  the  per- 
son certifying  was  acting  in  the  office,  and  that  his  signature  is  genuine.  Chouteau 
v.  Chevelier,  1  Mo.  343. 

1  S.  Y.  Code  Civ.  Pro.  §  956  (L.  1875,  c.  136).  In  Pennsylvania,  ex  parte  evidence 
of  the  copy  has  long  been  held  admissible  where  the  registry  is  beyond  seas.  King- 
ston v.  Leslie,  10  Serg.  <fe  R.  389,  and  cases  cited. 

4  Jackson  v.  Boneham,  15  Johns.  226. 

I  Inhabitants  of  Milford  v.  Inhabitants  of  Worcester,  7  Mass.  48,  57. 

*  Maxwell  v.  Chapman,  8  Barb.  579. 

*  Blackburn  v.  Crawfords,  3  Wall.  182,  189. 

*  Lewis  v.  Marshall,  5  Pet.  470,  476. 

7  Except  to  show  that  the  birth  or  death  was  prior  to  the  entry.     6  Pet.  470,  476. 
See  paragraphs  2  and  28  (above).     Unless  shown  to  have  been  made  under  direc- 
tion of  deceased  relative  or  parent.     Doe  v.  Bray,  8  B.  <fc  C.  817. 

8  Doe  v.  Andrews,  15  Q.  B.  758.    Compare,  however,  Doe  v.  Bray,  8  B.  <fc  C.  813. 
'  Blackburn  v.  Crawfords,  3  Wall.  175,  183,  189,  191. 

10  Same  cases. 

11  Morrisey  v.  Wiggins  Ferry  Co.  47  Mo.  621,  s.  p.  Iluntly  v.  Compstock,  2  Root, 
99.     Compare  16  Ves.  (by  Sumner),  72,  n.  3. 

11  Kennedy  v.  Doyle,  10  Allen,  161. 

II  Blackburn  v.  Crawfords  (above). 

14  Kennedy  v.  Doyle,  10  Allen,  161.  ' 
18  Maxwell  v.  Chapman,  8  Barb.  579, 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.          99 

original,  is  admissible.1  The  proper  evidence  of  the  copy  is  testi- 
mony of  the  witness  producing  it,  that  it  was  taken  at  the  proper 
office,  the  record  being  there  produced  to  him  by  the  lawful 
keeper  ;2  and  proof  of  the  handwriting  of  the  deceased  officer  may 
be  made  by  the  witness  having  inspected  the  signature  in  the 
various  places  where  it  occurred  in  the  register.8  A  copy  certi- 
fied under  the  seal  of  the  corporation,  is  not  evidence  unless  made 
so  by  statute.4  If  the  one  who  made  the  entry  is  living,  the 
original  entry  is  competent,  on  producing  him  as  a  witness  to 
testify  to  accuracy. 

The  marriage  certificate  given  to  the  parties  at  the  time  by 
the  officiating  functionary  is  evidence,  not  only  when  made  so  by 
statute,5  but  also  if  shown  to  be  part  of  the  res  gestce,  on  inde- 
pendent evidence  of  the  act,6  especially  if  given  by  a  public  officer 
who  is  since  deceased ; 7  or  if  so  preserved  and  shown  by  either 
party  as  to  be  his  or  her  admission  or  declaration,8  or,  with  lapse 
of  time,  to  become  a  family  memorial,  competent  as  hearsay.9 

45.  Best  and  secondary  evidence.'] — Registers,  even  though 
statutory,  are  not  conclusive  evidence,10  nor  the  only  best  evi- 
dence, so  as  to  exclude  parol,11  unless  made  so  by  the  statute.   The 
object  of  the  register  is  to  facilitate  the  proof,  not  to  supersede 
other  modes.12     Where  the  register  is  proved,  the  witnesses  who 
signed  it  need  not  be  called.13 

To  prove  that  no  entry  was  made,  the  book  or  paper  of  en- 
tries is  the  best  evidence.  The  statement  of  the  keeper  of  the 
record,  as  a  witness,  that  no  entry  appeared  is  secondary.14 

46.  Impeaching  the  registry.']— -The  fact  of  a  mutilation  or  im- 
perfection in  the  register,  not  material  to  the  series  of  entries 
affecting  the  parties ; 1S  or  that  the  entry  was  copied  from  another 
contemporaneous  or  collateral  register,  both  records  being  made  in 
the  course  of  duty ; 16  or  the  appearance  of  other  entries  not  made 


I  Jackson  v.  King,  5  Cow.  237;  Lewis  v.  Marshall,  5  Pet.  470,  476. 

8  Gainea  v.  Relf,  12  How.  U.  S.  472,  622.     Compare  p.  60  of  this  vol. 

s  Doe  T.  Daviea,  10  Q.  15.  325. 

4  Stoever  v.  Whiteman,  6  Binn.  41(5. 

B  As  ia  N.  Y.  Code  Civ.  Pro.  §  928  (3  R.  S.  6  ed.  150,  §  17),  and  in  other  States. 

6  See  Stockbridge  v.  Quicke,  3  Car.  &  K.  305. 

7  AVheeler  v.  McWilliams,  2  U.  C.  Q.  B.  77 ;  and  see  10  Allen,  101. 

8  Hill  v.  Hill,  38  Penn.  St.  611,  compare  Commonwealth  v.  Morris,  1  Gush.  (Mass.) 
391. 

9  Paragraph  87  (above). 

10  Derby  v.  Salem,  30  Vt.  722;    Rice  v.  The  State,  7  Humph.  14; 

II  Viall  v.  Smith,  6  R.  L  419,  even  to  supply  a  defect;  Northfield  v.  Plymouth,  20 
Vt.  582,  589. 

ia  State  v.  Marvin,  35  N.  H.  22. 

13  Birt  v.  Barlow,  1  Dou^l.  172. 

14  Blackburn  v.  Crawfords,  8  Wall.  183,  but  compare  to  the  contrary,  Smith  v. 
Richards,  p.  39  of  this  vol.  n.  10. 

15  Walker  v.  Wingfield,  18  Ves.  445,  Li-  ELDOX;  and  see  Doe  <fc  Jaycocks  v.  Gil- 
liara,  3  Murph.  N.  C.  47;  Sumner  v.  Seebec,  3  GreenL  223. 

16  Doe  v.  Andrews,  15  Q.  B.  756. 


100  ACTIONS  BY  AND  AGAINST 

at  the  proper  time  or  by  the  proper  person ; 1  or,  if  an  official 
register,  that  the  making  of  the  entry  was  somewhat  delayed,2  or 
was  not  made  on  the  best  information,8  and  the  like  objections, 
go  rather  to  the  credibility  than  the  competency  of  the  entry. 

YI.  JUDICIAL  RECORDS  SHOWING  FACTS  OF  FAMILY  HISTORY 
(PEDIGREE). 

47.  Letters  of  administration,  cfcc.] — Letters  testamentary  or 
of  administration,  though  competent  and  sufficient  in  favor  of  or 
against  the  representative  to  prove  his  capacity  to  sue  and  be 
sued,4  are  not  competent  against  any  other  party,  to  prove  the 
death  as  a  substantive  part  of  a  cause  of  action  or  defense,5  unless 
by  lapse  of  time  they  have  become  competent  as  hearsay.6      This 
exclusion  is  an  apparent  exception  to  general  principles,  and  rests 
on  the  imperfect  judicial  character  of  the  proceedings.     The  etat- 
utes  regulating  the  probate  court  may  01  course  be  such  as  to 
make  the  adjudication  competent ;    but  as  death  is  the  jurisdic- 
tional  fact,  the  determination  would  not  be  conclusive  even  be- 
tween the  parties  to  the  proceeding.     On  other  questions  direct- 
ly, not  merely  incidentally,7  in  issue,  and  actually  determined  by 
the  probate  court,  such  as  legitimacy  or  illegitimacy,  and  kinship, 
a  decree  of  the  surrogate's  court  is  competent  evidence  between 
the  parties  and  those  in  privity  with  them,8  and,  if  the  matter 
was  exclusively  within  the  probate  jurisdiction  and  intelligently 
decided,  is  conclusive 9  both  as  to  personalty 10  and  realty  ;n  but  as 
to  a  third  person  not  strictly  claiming  under  either  party,  it  is, 
at  the  most,  only  prima  facie  evidence  in  his  favor,  and  is  not 
competent  against  him.12 

48.  Judgments  and  Verdicts.'] — Personal  judgments,  and  judg- 
ments affecting  particular  property  only,  are  not  competent  evi- 

I  Harwell  v.  Chapman,  8  Barb.  579. 

II  Derby  v.  Salem,  30  Vt.  727. 

3  Doe  v.  Andrews,  15  Q.  B.  759. 

4  See  p.  54,   paragraph  1.     So  they  have  been  admitted  after  lapse  of  time, 
where  the  question  of  death  did  not  affect  the  liability  of  the  objector,  but  only  the 
question  who  was  the  proper  plaintiff.      French  v.  French,  1  Dick.  268. 

6  Carroll  v.  Carroll,  60  N.  Y.  123,  rev'g  2  Hun,  609.  Nor  to  prove  the  time  of 
death,  either  relatively  or  absolutely.  English  v.  Murray,  13  Tex.  366  ;  Ins.  Co.  v. 
Tisdale,  91  U.  8.  (1  Otto),  238. 

6  Munro  v.  Merchant,  26  Barb.  383.     See  U.  S.  v.  "Wright,  11  Wall.  648 ;  Johnson 
V.  Towsley,  13  Id.  72,  83,  86,  and  cases  cited. 

7  Anson  v.  Stein,  6  Iowa  (Clarke),  150. 

8  Lalonette  v.  Lipscomb,  52  Ala.  570. 

9  Doglioni  v.  Crispin,  L.  R.  1  H.  L.  301 ;  and  see  Broderick's  "Will,  21  "Wall.  503. 

10  Caujolle  v.  Ferric,  13  Wall.  469. 

11  Blackburn  v.  Crawfords,  3  Wall.  190. 

12  Spencer  v.  Williams,  L.  R.  2  P.  &  D.  230,  237,  and  cases  cited.     Thus  a  decree 
of  the  probate  court,  determining  a  question  of  legitimacy  of  a  child,  by  determining 
that  the  parents  were  never  married,  is  not  competent  a*  against  other  children  who 
were  not  parties  to  the  proceedings.     Kearney  v.  Denn,  15  Wall.  57.      So  proceed- 
ings before  the  surrogate  for  admeasurement  of  dower,  are  not  evidence  of  title. 
Clarke  v.  Randall,  5  Cow.  168. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        101 

dence  of  facts  of  heirship  or  the  like,  recited  in  them,  except  as 
against  a  party  to  the  action  in  which  they  were  recovered,  or  a 
person  claiming  under  him,1  or  as  to  the  particular  property  ad- 
judicated on,2  unless  by  lapse  of  time  the  rule  as  to  hearsay  makes 
them  competent. 

Where  the  circumstances  are  such  that  the  fact  might  be  es-, 
tablished  by  general  reputation,  any  judgment  or  decree,  or  even 
a  verdict,3  of  a  court  of  competent  jurisdiction,  expressly  or  by 
necessary  implication  determining  the  fact,  is  prima  facie  evi- 
dence, even  against  third  persons. 

A  judgment  in  an  action  for  divorce,  being  in  the  nature  of 
an  action  in  rem,  determines  the  question  of  personal  status  as 
against  all  the  world,  and  is  therefore  competent  for  or  against 
strangers.  Such  a  judgment,  whether  foreign  or  domestic,  is  to 
be  proved  by  the  production  of  the  record,  or  a  duly  authenti- 
cated copy,  which  should  include  the  pleadings,  orders,  reports, 
&c.,  as  well  as  the  adjudication.4 

"VII.  IDENTITY 

49.  Necessity  of  proof :] — Where  a  given  name5  appears  with 
the  surname,  in  a  document  or  testimony,  identity  of  the  name 
with  that  appearing  in  other  evidence,  is  sufficient  to  make  a 
prima  fade  case  of  identity  of  person,  if  there  be  a  reasonable 
coincidence  in  whatever  circumstances  of  time,  place,  age,  legal 
character  or  capacity,  &c.,  appear  in  the  case,  and  nothing  affirm- 
ative to  cast  doubt  on  the  identity.6  Under  such  circumstances, 
proof  of  identity  of  the  person  named  in  a  record,  whether  a 
register  of  baptism,  marriage,7  &c.,  or  a  judgment,8  is  unnecessary 
in  the  first  instance.  The  practice  in  this  State  is  to  leave  it  to 
the  adverse  party  to  give  some  evidence  against  identity.  This 
is  a  principle  recognized  in  civil  cases  generally.9 

1  Lovell  v.  Arnold,  2  Munf.  167 ;  Archer  v.  Bacon,  13  Mo.  149 ;  Wardlaw  v. 
Hammond,  9  Rich.  (S.  C.)  L.  464. 

3  Whitman  v.  Henneberg,  73  111.  109. 

3  Pile  v.  McBratney,  16  111.  314,  319 ;  Patterson  v.  Gaines,  6  How.  U.  S.  699. 

4  Lawrence's  Will  Case,  18  Abb.  Pr.  347. 

5  Fanning  v.  Lent,  8  E.  D.  Smith,  206. 

*  As,  for  instance,  where  the  name  is  very  common,  or  where  the  name  of  a  signer 
and  of  an  attesting  witness  is  the  same.  Jackson  v.  Christman.  4  Wend.  277. 

7  Jackson  v.  King,  5  Cow.  241  (disapproving  1  Campb.  196;  4  Id.  34).  Entries 
in  a  church  register,  showing  that  W.  A.  had  a  son  baptized  as  S. ;  that  years  after 
S.  A.  had  a  daughter  baptized  as  M.,  and  that  years  after  M.  A.  was  married  to  P., 
is  sufficient  evidence  to  go  to  the  jury  that  P.  married  a  granddaughter  of  W.  A.,  if 
nothing  appears  to  show  that  there  ever  were  other  persons  of  those  names.  It  may 
be  presumed  that  the  persons  named  in  the  register  were  the  ancestors  of  the  claim- 
ant, where  all  bore  the  appropriate  names,  the  dates  of  the  several  baptisms  and  mar- 
riages being  at  such  distance  of  time  from  each  other  as  to  be  consistent  with  the 
claim.  Id.  This  appears  also  to  be  the  modern  English  rule.  Hubbard  v.  Lees,  L. 
R.  1  Ex  265.  Contra,  Middleton  v.  Sandford,  4  Campb.  34;  Mooera  v.  Bunker,  29 
N.  II.  420;  Morrisey  v.  Wiggins  Ferry  Co.  47  Mo.  625;  1  Whart.  Ev.  623,  §  655. 

»  Hatcher  v.  Rochelenu,  1 8  N.  Y.  86. 

»  Bogue  v.  Bigelow,  29  Vt.  1S3  ;  2  Phil.  Ev.  508,  and  note ;  1  Greenl.  EY.  §  38, 
note.  Otherwise  in  criminal  cases.  Wedgwood's  Cast-,  8  Greeul.  76. 


102  ACTIONS  BY  AND  AGAINST 

50.  Mode  of  Proof.'] — Identity  of  person  may  be  proved  by 
the  direct  testimony  of  a  witness  Laving  means  of  knowledge ; l 
and  photographs  as  well  as  other  miniatures,  shown  to  be  good 
likenesses,  are  competent,  in  connection  with  testimony,  to  iden- 
tify the  person.2     Evidence  showing  correspondence  of  age,  per- 
sonal appearance,  dialect,  habits,  manners,  calling,  places  of  re- 
sort, &c.,  is  also  competent.3 

YIII.   NATIONAL  CIIAEACTEK,  AND  DOMICILE. 

51.  Citizenship  and  Alienage.'] — Citizenship  may  be  proved 
by  proving  birth,  at  any  place,  from  a  father,  a  citizen  of  the 
United  States,  whether  he  was   native  born  or  not;4  or  birth 
in  this  country  since  the  war  of  the  Revolution,  without  refer- 
ence to  the  alienage  or  citizenship  of  the  parents.5    Alienage  may 
be  proved  by  proving  birth  in  a  foreign  country,  from  a  father 
not  a  citizen  of  this  country,  or  who  never  resided  in  this  coun- 
try ; 6  or  birth  in  this  country  prior  to  the  declaration  of  inde- 
pendence, and  withdrawal  or  removal  from  this  country  without 
ever  having  adhered  to  our  government.7    Marriage  to  an  Ameri- 
can, of  an  alien  woman  who  might  lawfully  be  naturalized,  makes 
her  a  citizen ; 8  in  other  cases  marriage  does  not  alter  the  woman's 
citizenship.9    Evidence  that  one  deceased  was  reputed  to  be  of  a 
specified  foreign  nationality,  and  had  the  appearance  and  dialect 
thereof,  is  presumptive  evidence  of  alienage.       Residence,  if  ma- 
terial on  a  question  of  national  character,  may  be  proved  as  in 
case  of  Domicile. 

52.  Naturalization.] — A  record  of  the  judgment  of  a  compe- 
tent court,  admitting  an  alien  to  become  a  citizen,  and  reciting 
the  facts  which  entitled  the  alien  thereto,  is  conclusive,  and  is 
complete  evidence  of  its  own  validity.     It  cannot  be  impeached 

1  The  testimony  of  a  grandmother  that  she  verily  believed  the  person  produced 
in  court  to  be  the  one  baptized  as  a  child  as  proved  by  the  register — is  sufficient  evi- 
dence of  identity,  for  the  jury.     Queen  v.  Weaver,  L.  R.  2  C.  C.  Res.  85,  s.  r.  7  Moak's 
Eng.  323.     So  evidence  that  the  woman  was  formerly  known  by  the  maiden  name 
mentioned  in  the  marringe  register,  and  that  the  parties  cohabited  as  husband  and 
wife,  is  proof  of  identity.     State  v.  Wallace,  9  N.  H.  515,  617. 

2  Ruloffs  Case,  11  Abb.  Pr.  N.  S.  245,  s.  c.  45  N.  Y.  213;  Luke  v.  Calhoun,  52 
Ala.  115  ;  Udderzook  v.  Commonwealth,  76  Penn.  St.  340;  R.  v.  Folsom,  4  R  &  F.  103. 

3  See  Jackson  v.  Etz,  5  Cow.  316;  Lindsay  v.  People,  63  N.  Y.  143;  Cunningham 
V.  Burdell,  4  Bradf.  343. 

4  Young  v.  Peck,  21  Wend.  389 ;  U.  S.  R.  3.  §  1993. 

6  McKay  v.  Campbell,  2  Sawyer,  1 18,  s.  c.  5  Am.  L.  T.  407 ;  Lynch  v.  Clarke,  1 
Sandf.  583,  638.  Compare  as  to  expatriation,  Ludiam  v.  Ludlam,  26  N.  Y.  363,  affi'g 
31  Barb.  486 ;  14  Op.  U.  S.  Alt.  Gen.  295 ;  Op.  N.  Y.  Att.  Gen.  380 ;  Juando  v.  Tay- 
lor, 2  Paine,  652. 

6  See  Shanks  v.  Dupont,  3  Pet.  247 ;  U.  S.  R.  S.  §  1993 ;  TJ.  S.  v.  Gordon,  5  Blatchf. 
18;  Young  v.  Peck,  21  Wend.  389. 

1  See  Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  99 ;  Hollingsworth  v.  Duane,  Wall. 
C.  Ct.  61. 

8U.S.R.S.  §  1941. 

*  Beck  v.  McGillis,  9  Barb.  35,  49 ;  Shanks  v.  Dupont,  3  Pet.  242.  Compare  Citi- 
zenship, 14  Op.  U.  S.  Att.  Gen.  402. 

10  Jackson  v.  Etz,  5  Cow.  314. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.         103 

in  collateral  proceedings,  by  proof  contradicting  these  facts.1  A 
certified  copy  of  a  record  of  naturalization  in  another  State,  cer- 
tified according  to  the  act  of  Congress  to  allow  it  to  be  admissi- 
ble in  evidence,  is  admissible,  without  further  proof  that  it  has 
been  in  the  custody  of  the  clerk,  &c.,  and  without  extraneous 
proof  of  any  of  the  preliminaries  of  naturalization.2  If  the  local 
law  requires  any  further  declaration  or  oath  as  a  condition  of 
holding  lands,  there  must  be  evidence  tending  to  show  that  the 
condition  was  complied  with.3 

53.  Nature  of  the  question  of  Domicile.'] — Amid  the  conflict 
of  opinion  and  decision  on  questions  of  domicile,  an  important 
guide  is  to  bear  in  mind  that  for  purposes  of  succession  the  ob- 
ject of  the  inquiry  is,  to  ascertain  what  jurisdiction,  what  law, 
this  person's  aggregate  of  legal  rights  and  liabilities  was  under. 
For  other  purposes,4  a  person  may  belong  to  several  places,  in  the 
legal  sense,  and  the  law  looks  at  his  interests  distributively  to 
ascertain  the  locality  for  each  purpose.     But  for  purposes  of  suc- 
cession the  inquiry  is  not  as  to  the  locality  of  any  one  class  of  in- 
terests, nor  even  of  his  chief  interests  nor  political  allegiance, 
but  we  are  to  look  at  the  aggregate  of  his  civil  interests  as  an 
entirety, — the  universitas  juris,  of  the   Roman,  law, — and  ask 
where  in  legal  society  was  this  entirety  centered ;  in  what  juris- 
diction did  this  aggregation,  considered  as  a  whole,  subsist  ? 

54.  Presumptions  and  material  Facts.'] — The  domicile  of  a 
person  sui  juris  is  proved  by  showing  a  residence  at  a  particular 
place,  or  at  least  within  a  particular  jurisdiction,  accompanied 
with  either  direct  or  presumptive  evidence  of  an  intention  to 
remain  there  for  a  time  not  limited.5    If  nothing  appears  indicat- 
ing that  the  person  ever  had  a  different  origin  or  residence,  proof 
of  the  mere  fact  of  his  being  at  a  place,  without  more,  is  suffi- 
cient pritna  facie  evidence  that  he  was  then  domiciled  there,  to 
put  upon  the  adverse  party  the  burden  of  rebutting  the  evidence,6 
which  may  be  done  by  showing  that  his  presence  there  was  either 
for  a  temporary  purpose,7  or  by  constraint  ;8  but  the  place  where 
one  is,  for  however  short  a  time,  may,  if  he  never  had  any  other 
domicile,  be  deemed  to  be  his  domicile,  at  least  for  the  purpose 
of  defining  his  capacities  while  there.     Usually,  however,  there 
is  evidence  of  an  abode;  and  the  place  where  the  person  "lives" 
is  taken  to  be  his  domicile  until  facts  adduced  establish  the  con- 


1  McCarthy  v.  Marsh,  6  N.  T.  (1  Seld.)  263,  and  cases  cited.      Compare  Case  of 
Stern,  13  Op.  U.  S.  Alt.  Gen.  376. 

*  People  v.  Snyder,  41  N.  Y.  397,  affi'g  51  Barb.  589. 

*  Blight  v.  Rochester,  7  Wheat.  635. 

4  Such  as  taxation,  voting,  settlement,  <fec. 

5  Mitchell  v.  U.  8.  15  Wall.  350;  Guier  v.  O'Daniel,  1  Binn.  349,  n. 

6  Bruce  v.  Bruce,  2  Bos.  <fe  P.  230,  n.,  Ld.  THUBLOW  ;  Bempde  v.  Johnstone,  3  Ves. 
201 ;  Mann  v.  Clark,  83  Vt.  65,  60. 

7  Bruce  v.  Bruce  (above). 

8  Bempde  v.  Johnstone  (above). 


104:  .       ACTIONS  BY   AND  AGAINST 

trary.1  Thus  an  immigrant  having  abandoned  his  domicile  abroad, 
and  come  with  his  family  to  this  country  with  intent  to  seek  a 
home  here,  acquires  a  domicile  at  the  port  where  he  comes  within 
our  jurisdiction,  which  continues  until  his  movement  and  intent 
manifest  the  adoption  of  another.2  Showing  long  continued  resi- 
dence within  a  jurisdiction  other  than  that  of  the  domicile  of 
origin,  in  the  absence  of  anything  indicating  intent  to  preserve 
or  return  to  that  original  domicile,  is  enougn  to  throw  on  the 
other  party  the  burden  of  disproving  intent  to  remain.8  If  the 
person  was  moving  to  and  fro,  the  question  where  he  had  his 
home,4  where  he  had  established  his  family  if  he  had  one,5  or 
where  his  strongest  domestic  ties  were  fixed,6  may  determine  in 
which  of  the  several  places  he  "  lived,"  within  the  meaning  of 
the  rule,7  even  though  he  declared  himself  a  resident  of  his  place 
of  business.8  It  is  the  residence  which  indicates  the  domicile, 
though  but  little  of  his  time  was  spent  there,  rather  than  the 
place  of  business,  though  much  was  spent  there.9  If  he  main- 
tained two  domestic  establishments  at  once,  the  relative  length  of 
time  spent  in  them  is  of  little  or  no  weight ; 10  but  any  circum- 
stances, such  as  health,  climate,  &c.,  indicating  that  he  probably 
regarded  one  rather  than  the  other  as  likely  to  be  his  ultimate 
abode,  will  control ; u  if,  however,  the  case  is  equally  balanced  in 
respect  to  intent,  the  one  first  adopted  as  an  abode  will  maintain 
its  character  as  his  domicile.  Slight  circumstances  may  fix  domi- 
cile, if  not  controlled  by  stronger  evidence ;  and  as  the  question  is 
usually  between  two  places,  each  indicated  by  some  circumstances, 
it  often  occurs  that  the  evidence  of  facts  pointing  to  one  place 
would  be  entirely  conclusive  were  it  not  for  circumstances  of  a 
still  more  decisive  character  which  fix  it  beyond  question  in  the 
other.12  In  such  cases  the  intention  of  the  person  to  consider  the 
one  or  the  other  to  be  his  residence  or  domicile  will  usually  con- 
trol.13 Foreign  domicile  may  be  proved  by  evidence  of  foreign 
national  character,  and  of  residence  within  the  foreign  jurisdiction, 
although  the  particular  place  may  not  be  satisfactorily  ascertained.14 


I  Bruce  v.  Bruce,  2  Bos.  <fe  P.  229,  n. ;  Bempde  v.  Johnstone,  3  Ves.  201 ;  Stanley 
V.  Bernes,  3  Hagg.  Eccl.  374,  437;  Best  on  Pres.  235. 

s  Kennedy  v.  Ryall,  67  N.  Y.  386,  affi'g  40  Super.  Ct.  (J.  <fc  S.)  347;  Whart  Notes 
on  Dom.  3  So.  L.  Rev.  416,  417. 

3  Ennis  v.  Smith  (Kosciusko's  Case),  14  How.  U.  S.  400,  423. 

4  Story's  Confl.  of  L.  §  41. 

6  Chaine  v.  Wilson,  8  Abb.  Pr.  73,  s.  c.  1  Bosw.  673. 

6  See  Catlin  v.  Gladding,  4  Mas.  C.  C.  308. 

7  See  other  cases  in  2  Abb.  N.  Y.  Dig.  2d  ed.  tit.  Dom. 

8  Wade  v.  Matheson,  4  Lans.  158. 
*  Chaine  v.  Wilson  (above). 

10  Greene  v.  Greene,  11  Pick.  410,  415. 

II  Forbes  v.  Forbes,  Kay,  341.     Compare  Isham  v.  Gibbons,  1  Bradf.  69. 

12  Thorndike  v.  City  of  Boston,  1  Mete.  246 ;  Mann  v.  Clark,  33  Vt.  60. 

13  Opinion  of  the  judges,  5  Mete.  589.     Source  of  income  (if  not  parental)  is  not 
material.     Ib.  591. 

14  See  Matter  of  Fitzgerald,  2  Cai.  318. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        105 

For  the  purpose  of  actions  treated  in  this  chapter,  a  wife's 
domicile  is  proved  by  proving  that  of  her  husband,  if  sui  juris?- 
unless  they  were  separated  by  the  decree  of  a  competent  court.3 
The  domicile  of  a  legitimate  minor  is  proved  by  proving  the 
domicile  of  the  father,3  while  he  was  living  ;  after  his  death,  that 
of  the  mother  ;  but  it  does  not  follow  any  change  in  her  domicile 
resulting  on  her  remarriage.4  That  of  an  illegitimate  minor  is 
proved  by  proving  the  domicile  for  the  time  being  of  its  mother.5 
That  of  a  foundling,  by  showing  where  it  was  discovered,  or  the 
place  of  education  or  adoption  to  which  it  was  removed.6  In 
case  of  a  continued  absentee,  under  constraint,  like  a  soldier  or 
Bailor,  the  residence  of  his  wife  at  the  place  where  he  established 
her  is  prima  facie  evidence  of  his  domicile ; 7  or,  if  single,  the 
place  where  he  most  usually  resorted  for  board  in  the  intervals  of 
his  return.8 

55.  Change  of  domicile.'] — Domicile  once  shown,  whether  it  be 
the  original  or  an  acquired  one,9  is  presumed  by  the  law  to  have 
continued  until  a  new  domicile  is  shown  to  be  acquired.  Merely 
abandoning  the  old  abode,  though  without  intent  to  return,  does 
not  divest  the  domicile.10  The  burden  is  on  him  who  alleges  a 
change  of  domicile  to  prove  the  change.11  To  constitute  the  new 
domicile  two  things  are  indispensable :  1,  residence  in  the  new 
locality ; w  and,  2,  the  intention  to  remain  there,  either  perma- 


1  Whart.  Confl.  of  L.  §  44. 

"  Id. ;  Greene  v.  Greene,  10  Pick.  415  ;  and  see  Yelverton  v.  Yelverton,  1  Sw.  <fe 
Tr.  674,  585 ;  Parsons  v.  City  of  Bangor,  61  Me.  461,  APPLETON,  J. 

'  Ludlara  v.  Ludlam,  26  N.  Y.  856,  371 ;  Guier  v.  O'Donnell,  1  Binn.  352,  n. ; 
Forbes  v.  Forbes,  Kay,  353. 

4  Brown  v.  Lyncli,  2  Bradf.  214 ;  and  see  Ryall  v.  Kennedy,  40  N.  Y.  Super.  Ct. 
(J.  &  S.)  347  (affi'd  in  67  N.  Y.  386),  and  cases  cited. 

6  Whart.  Confl.  of  L.  §  37. 

•  Id.  §  39. 

I  Brewer  v.  Linnaeus,  36  Me.  428.     But  compare  Ford  v.  Hart,  L.  R.  9  C.  P.  273, 
8.  o.  9  Moak's  Eng.  400  ;  Yelverton  v.  Yelverton,  1  Sw.  &  Tr.  574. 

8  So  held  of  the  residence  of  a  fisherman  living  in  his  boat  at  sea.  Boothbay  v. 
"Wiscasset,  3  Grecnl.  (Me.)  354. 

8  Opinion  of  the  judges,  9  Mete.  687,  889. 

10  Somerville  v.  Somerville,  5  Ves.  756,  787 ;  Jennison  v.  Hapjrood,  10  Pick.  77 ; 
First  Nat'l  Bank  v.  Balcom,  35  Conn.  637;  Mitchell  v.  U.  S.  21  Wall.  350.  Unless 
it  be  in  a  foreign  jurisdiction  ;  The  Venus,  8  Cranch,  253  ;  or  the  intent  be  to  resume 
domicile  of  birth.  Reed's  Appeal,  71  Penn.  St.  381,  383.  The  better  opinion  is  that 
the  principle  that  original  domicile  easily  reverts,  is  practically  confined  to  cases 
where  the  national  character  and  the  original  domicile  are  the  same,  and  does  not 
apply  where  both  domiciles  are  under  one  national  sovereignty.  First  Nat.  Bk.  v. 
Balcom,  35  Conn.  857.  Compare  Mann  v.  Clark,  83  Vt.  55,  61.  The  intention  to 
abandon,  though  formed  after  leaving,  effects  abandonment.  Ilampdcn  v.  Levant,  59 
Me.  659,  APPLETOX,  J. 

II  Crookenden  v.  Fuller,  1  Sw.  «fc  Tr.  441 ;   Hodgson  v.  De  Buchesne,  12  Moore's 
P.  C.  288;  Mitchell  v.  U.  S.  (above);  Dcsmare  v.  U.  S.  93  U.  S.  (3  Otto),  605. 

19  There  are,  however,  cases  where  the  establishment  of  a  homo  or  wife  at  a  place, 
with  intent  to  go  and  abide  there  permanently,  have  been  held  to  fix  the  domicile 
there  before  actual  residence  commenced.  Banes  v.  Brewster,  111  Mass.  882;  and 
Bee  Petersen  v.  Chemical  Bk.  32  N.  Y.  21,  23 ;  affi'g  2  Robt.  605.  Being  t»t  itincre  to 


106  ACTIONS  BY  AND  AGAINST 

nently  or  for  an  indefinite  time.1  The  change  cannot  "be  made 
except,  facto  et  animo.  Both  are  alike  necessary.  Either  with- 
out the  other  is  insufficient.  Mere  absence  from  a  fixed  home, 
however  long  continued,  cannot  work  the  change.  But  the  fact 
of  fixing  a  residence  in  another  place,  from  motives  of  health  or 
business  of  a  permanent  nature,  may  raise  a  legal  presumption  of 
intent  to  make  the  change.3  On  the  other  hand,  the  intent  to 
change  will  not  be  presumed  if  it  would  have  been  illegal.3 

The  domicile  of  a  minor  cannot  be  changed  by  its  own  act ; 4 
but  an  actual  change  of  residence  by  the  guardian  with  the  ward, 
made  in  good  faith,  may  have  the  effect  to  change  the  ward's 
domicile.5  If  a  minor,  on  coming  of  age,  leaves  the  parental 
domicile,  he  may  acquire  a  domicile,  as  any  other  person,  by  taking 
up  a  residence,6  without  intent  to  return  otherwise  than  on  visits. 
But  if  he  retains  family  ties,  and  resorts  to  the  old  home  in  vaca- 
tion, he  does  not  lose  his  domicile  there  by  his  absence  and  resi- 
dence at  college.7  A  wife  after  divorce,  either  absolute  or  by 
way  of  separation,  may  change  her  domicile  by  her  own  act.8  A 
soldier  or  sailor  does  not  lose  his  domicile  by  absence  in  actual 
service.9  Naturalization  is  very  strong,  but  perhaps  not  conclu- 
sive evidence  of  change  of  domicile.10 

56.  The  Intent."] — Usually  the  intent  to  which  the  evidence  is 
to  be  directed  is  not  intent  to  secure  domicile,  as  a  legal  result, 
but  to  take  up  continuous  residence,  as  a  matter  of  fact.  In  some 


the  intended  new  domicile  may  be  enough.  Forbes  v.  Forbes,  Kay,  841.  But  mere 
intention  to  change  is  not  enough.  Guier  v.  O'Donnell,  1  Binn.  352,  note.  If  it  suffi- 
ciently appears  that  the  necessary  intent  to  remain  existed,  the  right  of  domicile  ia 
acquired  by  ever  so  brief  a  residence.  The  Venus,  8  Cranch,  253,  279.  But  the 
force  of  residence  as"  evidence  of  domicile  is  increased  by  the  length  of  time  during 
which  it  has  continued.  Stanley  v.  Bernes,  2  Hagg.  Ecc.  437.  Under  what  circum- 
stances "  locating  "  with  intent  to  return  for  family,  effects  a  change  before  they  are 
brought,  compare  Burnham  v.  Rangeley,  1  Woodo.  <fe  M.  7 ;  State  v.  Hallett,  8  Ala. 
159;  Smith  v.  Croom,  7  Fla.  81,  158. 

1  Jennison  v.  Hapgood,  10  Pick.  77.   As  to  intent  to  return  in  the  indefinite  future, 
see  Bruce  v.  Bruce,  2  Bos.  &  P.  230,  n. ;  Ross  v.  Ross,  103  Mass.  575. 

2  Elbers  v.  U.  S.  Ins.  Co.  16  Johns.  128.. 

*  Mitchell  v.  U.  S.  (above). 

4  Forbes  v.  Forbes,  Kay,  353.     It  seems  not  even  after  emancipation.     Trammell 
T.  Trammell,  20  Tex.  406,  417. 

*  Wheeler  v.  Hollis,  19  Tex.  522,  and  cases  cited  ;   and  see  Brown  v.  Lynch,  2 
Bradf.  214.    Otherwise,  if  made  fraudulently  for  the  guardian's  benefit.     Trammell  v. 
Trammell,  20  Tex.  406.   The  domicile  of  a  person  non  compos  may  be  changed,  where 
it  does  not  affect  succession,  by  the  committee  or  guardian.     Holyoke  v.  Haskins,  5 
Pick.  (Mass.)  20. 

6  Hart  v.  Lindsey,  17  K  H.  235. 

*  Granby  v.  Amherst,  7  Mass.  1,  5.    And  see  Putnam  v.  Johnson,  10  Mass.  488. 
An  intent  to  change  domicile  is  not  so  readily  presumed  from  residence  at  a  public 
institution  for  purposes  of  education,  as  from  a  like  removal  for  ordinary  purposes. 
Opin.  of  the  Judges,  5  Mete.  590. 

"  Barber  v.  Barber,  21  How.  U.  S.  582. 

*  Brewer  v.  Linnaeus,  36  Me.  428,  s.  r.  per  SHAW,  Ch.  J.,  Sears  v.  City  of  Boston, 
1  Mete.  (Mass.)  250,  252. 

10  See  Moore  v.  Darrall,  4  Ilagg.  63. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        107 

cases,  however,  especially  where  two  residences  are  shown,  there 
may  have  been  an  intent  that  one  should  be  made  the  domicile  to 
the  exclusion  of  the  other.  Intent  of  either  kind  is  competent 
evidence.  On  the  one  hand  it  is  enough  to  show  the  residence 
as  a  fact,  and  the  intent  to  abide,  without  showing  that  the  per- 
son had  any  intention  or  even  knowledge  as  to  the  legal  conse- 
quence in  fixing  domicile ;  *  on  the  other  hand  the  intelligent  in- 
tention to  retain  the  existing  domicile  as  the  legal  habitat,  while 
making  a  change  of  residence  which  it  was  apprehended  might 
be  permanent,  may  be  effectual  to  prevent  a  change  of  domicile.2 
But  where  the  facts  show  all  the  preponderating  indicia  of  domi- 
cile in  one  of  two  residences,  the  mere  election  of  the  person  to 
have  the  other  considered  as  the  domicile  cannot  sufficed 

57".  Evidence  of  Residence  and  of  Intent.'] — A  witness  may 
testify  to  the  fact  of  a  person's  residence ;  and  even  negatively,  by 
showing  that  the  witness  had  adequate  acquaintance  with  the 
place,  and  that  the  person  could  not,  in  his  opinion,  have  lived 
there  without  the  witness  knowing  it.4  A  person,  whether  a 
party  to  the  suit  or  not,  may  testify  what  was  his  own  intent  in 
taking  up  his  residence  or  removing,5  but  against  his  testimony 
all  material  circumstances  may  be  weighed.6 

Evidence  of  declarations  manifesting  intent,  made  by  the  per- 
son before  suit,  and  accompanying  the  residence  or  the  acts  of 
change,  is  competent,  whether  the  person  is  living 7  or  not 8  at  the 
time  of  trial,  if  the  intent  related  to  the  present  or  future,9  but 
declarations  of  the  intent  of  a  former  residence  or  removal  are 
not  competent.10 

1  This  is  the  American  rule.  The  English  courts  seem  not  agreed.  In  Moorhouse 
T.  Lord,  10  Ho.  of  L.  282,  285,  292,  it  was  held  (in  case  of  a  national  change)  that 
the  intent  must  be  intent  to  change  the  domicile  as  distinguished  from  the  residence, 
In  Douglas  v.  Douglas,  41  L.  J.  Eq.  74,  88,  this  was  said  not  to  be  the  English  law, 
and  the  rule  was  laid  down  that  the  evidence  of  intention  may  be  either  express,  or 
such  as  to  lead  to  the  inference  that,  if  the  question  had  been  formally  submitted  to 
the  party  whose  domicile  is  in  dispute,  he  would  have  expressed  his  wish  in  favor  of 
a  change;  that  such  an  intention  must  be  either  shown  to  have  actually  existed  in  the 
mind,  or  it  must  appear  that  it  was  reasonably  certain  it  would  have  been  formed  or 
expressed  if  the  question  had  arisen  in  a  form  requiring  a  deliberate  and  solemn  de- 
termination. Id.  p.  89. 

8  Dupuy  v.  Wui  tz,  63  N.  T.  656,  affi'g  64  Barb.  156. 

8  Oilman  v.  Oilman,  52  Me.  165;  Holmes  v.  Greene,  7  Gray,  299,  301 ;  Butler  v. 
Farnsworth,  4  Wash.  C.  Ct.  101. 

4  Cavendish  v.  Troy,  41  Vt.  108.  It  was  also  held  that  to  prove  his  presence, 
ancient  documents  of  other  persons,  showing  his  business  and  litigation  there,  were 
competent. 

*  Fisk  v.  Chester,  8  Gray  (Mass.)  60;  Hulett  v.  Hulett,  87  Vt.  681,  586. 

8  Wilson  v.  Wilson,  L.  R.  2  P.  «fe  D.  435,  444,  8.  c.  4  Moak's  Eng.  663,  671. 

*  Kilburn  v.  Bennett,  3  Mete.  (Mass.)  199  ;  Burgess  v.  Clark,  3  Ind.  250. 

8  Brodio  v.  Brodie,  2  Sw.  &  Tr.  269,  262;  Ennis  v.  Smith,  14  How.U.  S.  400, 421. 

9  A  letter  written  a  year  after  leaving,  and  expressing  intent  never  to  return,  with 
business  instructions  based  on  it,  is  competent  on  the  question  of  previous  change. 
Thorndike  v.  City  of  Boston,  1  Mete.  242,  247. 

10  Salem  v.  Lynn,  13  Mete.  544.     But  this  limit  is  not  to  be  too  strictly  applied. 
It  depends  perhaps  on  the  existence  of  interest.      See  also  Crookenden  v.  Fuller,  1 
Sw.  <fc  Tr.  450. 


108  ACTIONS  BY  AND  AGAINST 

A  written  declaration,  although  more  reliable  than  mere 
words  in  point  of  preservation,  may  or  may  not  be  more  signifi- 
cant of  intent  in  proportion  as  it  is  spontaneous  and  deliberate.1 
Thus,  an  averment  in  pleading,2  or  a  description  in  a  will,3  deed 
or  contract,4  being  formal  acts  drawn  usually  by  another  ;  or  an 
entry  in  a  hotel  register,5  being  usually  a  careless  act, — though 
each  competent,  are  entitled  to  little  weight. 

Acts  are  usually  more  cogent  evidence  of  intent  than  declara- 
tions.6 The  law,  in  the  absence  of  direct  evidence  of  intent,  pre- 
sumes that  a  man.  did  not  intend  to  abandon  his  family ;  hence 
the  act  of1  leaving  one's  family  at  the  pre-existing  domicile,  or  of 
breaking  up  the  establishment  and  removing  the  family  to  the 
new  abode,  and  leaving  them  there  while  returning,  raises  a  strong 
presumption  of  intent  to  retain,  in  the  first  case  the  old,7  in  the 
second  case  the  new  residence.8 

Evidence  that  the  person  voted,9  or  attempted  to  vote,10  or  that 
he  refrained  from  voting,11  or  that  he  voted  elsewhere,12  or  that  he 
paid 13  or  did  not  pay 14  taxes  as  a  resident,  to  the  State  or  local 
treasury  where  he  was,  or  that  he  paid  such  taxes  elsewhere,13 
though  not  direct  evidence  of  domicile,  is  competent  on  the  ques- 
tion of  residence,  which  is  one  of  the  elements  in  proof  of  domi- 
cile. But  such  facts  are  slight  evidence,  taken  into  consideration 
because  of  the  want  of  direct  or  decisive  proof ;  and  their  compe- 
tency depends  on  their  manifesting  his  own  intent  or  opinion  as 
to  his  residence,  not  that  of  the  officers  of  taxation  or  election.16 

Evidence  of  acts  is  not  confined  to  acts  contemporaneous  with 
the  alleged  change.  After  proof  of  actual  removal  or  of  declara- 


1  See  Dupuy  v.  Wurtz,  53  N.  Y.  556.  561,  affi'g  64  Barb.  156. 
*  Hegeman  v.  Fox,  31  Barb.  475,  478. 

3  Oilman  v.  Oilman,  52  Me.  165.   Compare  Ennis  v.  Smith,  14  How.  U.  S.  400,  421. 

4  Lougee  v.  Washburn,  16  N.  H.  134.      A  declaration  of  residence,  in  a  convey- 
ance, is  not  conclusive,  unless  the  domicile  is  one  of  the  causes  of  the  contract.     Till- 
man  v.  Mosely,  14  La.  An.  Rep.  721. 

8  Gilman  v.  Oilman  (above). 

6  Dupuy  T.  Wurtz  (above).  The  "  intent  is  manifested  by  what  he  does,  and  by 
what  he  says  when  doing,  and  sometimes  as  significantly  by  what  he  omits  to  do  or 
to  say."  THOMAS,  J.,  in  Cole  v.  Cheshire,  1  Gray,  444. 

I  Jennison  v.  Hapgood,  10  Pick.  99. 

8  Greene  v.  Greene,  11  Pick.  410. 

9  Smith  v.  Croom.  7  Fla.  81,  158. 

10  Guier  v.  O'Donnell,  1  Binn.  854  n. 

II  Hitt  v.  Crosby,  26  How.  Pr.  413. 
14  Lincoln  v.  Hapgood,  1 1  Mass.  350. 

13  See  Mann  v.  Clark,  83  Vt.  61. 

14  Hitt  v.  Crosby,  26  How.  Pr.  413. 

16  If  the  law  of  the  foreign  State  does  not,  like  the  law  of  the  forum,  impose  taxes 
on  personalty  merely  upon  residence,  it  is  for  the  adverse  party  to  show  the  law  in 
order  to  render  evidence  of  having  paid  taxes  in  the  other  State  incompetent.  Hu- 
lett  v.  Hulett,  37  Vt.  581,  687. 

16  Thus,  if  the  registering  officers  have  no  authority  to  register  a  voter,  except  on 
his  application,  their  testimony,  that  they  decided  him  to  be  an  inhabitant  and  reg- 
istered him,  is  incompetent  without  evidence  that  he  requested  it.  Fisk  v.  Chester, 
8  Gray  (Mass.)  506. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.       109 

tions  of  intent  to  remove,  it  is  competent  to  prove  the  character 
of  the  sojourn  at  either  place.1 

It  is  said  that  intent  must  be  proved  by  very  satisfactory  evi- 
dence,2 especially  when  the  change  is  to  a  foreign  country,8  but 
this  requirement  varies  according  to  the  transitory  or  settled 
habits  of  the  person. 

IX.  WILLS. 

58.  Presumptions,  and  Burden  of  Proof  as  to  Intestacy.'] — 
The  law  never  presumes  a  will 4  in  the  absence  of  all  evidence; 
and  in  trying  the  title  of  an  heir,  it  is  not  necessary  for  him  to 
show  that  his  ancestor  died  intestate.     The  intestacy  is  presumed 
until  the  contrary  appears.5    And  mere  existence  of  a  will  being 
shown,  the  law  does  not  presume  that  it  was  a  will  of  real  as  well 
as  of  personal  property.6 

59.  Domestic  Will  proved  by  producing  probate.~\ — A  will  is  put 
in  evidence  by  showing  it  to  have  been  duly  proved 7  in  the  probate 
or  other  competent  court  within  the  State ;  and  the  mode  of  due  pro- 
bate depends  on  the  statutes  of  the  State,  which  should  be  careful- 
ly consulted.    This  is  now  usually  the  primary  and  exclusive  mode 
of  proving  a  domestic  will,  or  a  devise  of  lands  within  the  State. 
Under  a  statute  which  allows  the  record,  or  an  exemplification  of 
the  record,  to  be  received  in  evidence  the  same  as  the  original,8 
the  whole  record  must  be  presented  or  exemplified, — that  is,  the 
record  of  the  proofs,9  as  well  as  of  the  will  itself.10    The  original 
record  of  the  surrogate  is  equally  competent ; n  and,  independent 

I  See  Wilson  v.  Terry,  11  Allen  (Mass.)  206;   Crawford  v.  Wilson,  4  Barb.  523. 
So,  to  show  that  a  removal  before  suit  brought  wns  with  intent  to  take  up  a  domi- 
cile, evidence  is  competent  that  it  was  continued  after  so  brought,  and  down  to  the 
time  of  trial ;   for  these  facts,  although  occurring  pending  the  action,  are  compe- 
tent as  throwing  light  upon  the  character  of  the  previous  fact.     Hulett  v.  Hulett,  37 
Vt.  581,  585. 

*  Donaldson  v.  McClure,  20  Scotch  Sess.  Cas.  2d  ser.  307,  321,  affi'd  in  3  McQ. 
852. 

3  Moorhouse  v  Lord,  10  Ho.  of  L.  283. 

4  Duke  of  Cumberland  v.  Graves,  9  Barb.  595,  606. 

6  8  Washb.  R.  P.  18  (37).  Because  it  is  the  negative  (Lyon  y.  Rain,  36  HI.  368); 
and  because  the  l«w  entitles  heirs  to  rest  on  the  right  of  inheritance  until  a  will  is 
proved.  Delafield  v.  Parish,  26  N.  Y.  9. 

8  Duke  of  Cumberland  v.  Graves  (above).  The  contrary  held  after  probate,  in 
Stevenson  v.  Haddleson,  13  B.  Monr.  (Ky.)  299. 

*  A  copy  of  the  decree  of  probate,  not  the  mere  certificate  of  the  clerk  that  the 
will  has  been  proved,  is  the  proper  evidence.     Creasy  v.  Alverson,  43  Mo.  13.     At 
common  law,  the  will  itself  is  the  primary  evidence  as  to  lands;  the  probate  the 
primary  and  exclusive  evidence  as  to  personalty. 

8  2  N.  Y.  R.  S.  68,  §  15;  L.  1860,  c.  94;  L.  1861,  c.  12 ;  but  contra  in  N.  Y.  as  to 
wills  proved  before  1830.  L.  1871,  c.  361.  In  Pennsylvania,  probate  without  the 
proofs  is  held  prima  facie  evidence.  Kenyon  v.  Stewart,  44  Penn.  St.  188. 

*  Including  the  sworn  petition,  if  any.     Bolton  v.  Jacks,  6  Robt.  166. 

10  Morris  v.  Keyes,  1  Hill,  640;  Caw  v.  Robertson,  5  N.  Y.  125  ;  Ackley  v.  Dy- 
gert,  33  Barb.  17G;  Marr  v.  Gilliam,  1  Coldw.  488,  612;  Bright  v.  White,  8  Mo.  422, 
427- 

II  EUlen  v.  Keddell  8  East,  187. 


110  ACTIONS  BY  AND  AGAINST 

of  statute,  would  be  so  on  proof  that  the  original  will  was  lost.1 
If  from  the  record,  including  the  sworn  petition  for  probate,  if 
one  was  presented,  jurisdiction  appears  on  the  face  of  the  pro- 
ceedings, the  authority  for  record  ia  prima  facie  established,  and 
the  will  and  record  are  admissible  in  evidence  without  further 
proof  aliunde?  If  it  affirmatively  appear  by  them  that  the  will 
was  not  duly  proved, — as,  for  instance,  where  it  was  admitted  on 
the  oath  of  one  of  the  subscribing  witnesses,  without  accounting 
for  the  others, — the  probate  is  not  evidence.8  The  proofs  are, 
however,  required  only  for  authentication ;  they  do  not  become 
evidence  in  the  cause  for  other  purposes.4  Without  the  probate, 
the  will  itself  as  a  title  to  property,  or  as  giving  a  right  to  the 
executor  or  administrator  to  sue,  cannot  be  received  in  evi- 
dence.5 

60.  Decree  of  Probate  Court,  how  far  conclusive.'] — The  decree 
of  a  surrogate  having  jurisdiction  of  the  subject,  declaring  a  will  of 
personalty  duly  executed,  is  conclusive  evidence  thereof,  against  all 
the  world,  in  a  collateral  action,  as  to  personalty.6  But  as  to  real 
property  the  probate  of  a  will  containing  a  devise  was  not,  at  com- 
mon law,  any  evidence  whatever  of  its  execution;  and  the  American 
statutes  making  it  competent  evidence  do  not,  without  express  lan- 
guage or  necessary  implication,  have  the  effect  to  make  it  conclu- 
sive, but  only  prima  facie  evidence.  The  effect  of  the  probate, 
whether  conclusive  (as  it  always  is  as  to  personalty,  and  under 
some  statutes  is  as  to  realty),  or  prima  facie  (as  usually  in  respect 
to  realty),  extends  to  all  points  peculiar  to  the  testamentary  act, 
and  which  were  necessarily  determined,  including  the  capacity  of 
the  testator,  in  respect  of  ae;e,7  coverture  or  non-coverture,8  sound- 
ness of  mind,9  the  form  an3  mode  of  execution,10  the  competency 
of  witnesses/1  and  the  weight  of  the  evidence  upon  these  points.12 


1  Jackson  v.  Lucett,  2  Cai.  363. 

1  Bolton  v.  Jacks,  6  Robt.  166.  As  to  presumptions  in  favor  of  due  notice,  <fec., 
see  Marcy  v.  Marcy,  6  Mete.  (Mass.)  360;  Bolton  v.  Brewster,  32  Barb.  389. 

8  Staring  v.  Bowen,  6  Barb.  109.  And  see  Thompson  v.  Thompson,  9  Penn.  St. 
234.  Contra,  Tel  ford  v.  Barney,  1  Greene  (Iowa),  675;  Stevenson  v.  Huddleson,  13 
B.  Monr.  (Ky.)  299. 

4  Nichols  v.  Romaine,  3  Abb.  Pr.  122. 

6  Graham  v.  Whitely,  26  N.  J.  L.  254 ;  Thorn  v.  Shiel,  15  Abb.  Pr.  N.  S.  81 ;  1 
"VVhart.  Ev.  78,  §  66,  and  cases  cited.  And  see  Broderick's  Will,  21  Wall.  503. 

6  Vanderpoel  v.  Van  Valkenburgh,  6  N.  Y.  (2  Seld.)  190;  Matter  of  Kellum,  50 
Id.  298;  Colton  v.  Ross,  2  Paige,  396;  Muir  v.  Trustees  of  Leake  <fe  Watts  Orphan 
House,  3  Barb.  Ch.  477.  See  also  Clark  v.  Bogardus,  4  Paige,  623.  This  is  so  at 
common  law,  and  also  by  express  statutes  usual  in  the  American  States. 

I  Howard  v.  Moot,  64  N.  Y.  262,  affi'g  2  Hun,  475.     Otherwise  where  the  age  for 
devising  real  property  was  not  necessarily  determined.     Dickenson  v.  Hayes,  31 
Conn.  417. 

8  Cassels  v.  Vernon,  6  Mas.  332 ;  and  see  Picquet  v.  Swan,  4  Mas.  443. 

9  Poplin  v.  Hawke,  8  N.  H.  124  ;  Osgood  v.  Breed,  12  Mass.  531. 

10  Vanderpoel  v.  Van  Valkenburgh  (above). 

II  Fortune  v.  Buck,  23  Conn.  1. 

"  Holliday  v.  Ward,  19  Penn.  St.  490 ;  Holman  v.  Riddle,  8  Ohio  St.  384 ;  Jour- 
den  v.  Meier,  31  Mo.  40;  Taylor  v.  Burnsides,  1  Gratt.  (Va.)  165.  Contra,  Ferguson 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        Ill 

It  is  also  evidence  conclusive  or  prima  facie,  as  the  case  may  be, 
in  respect  to  the  contents  of  the  will,  except  that  for  the  pur- 

Eoses  of  construction  or  interpretation,  so  far  as  that  may  appear 
rom  the  grammatical  skill  or  the  accuracy  of  the  writer  in  punc- 
tuation, parenthetical  clauses,  mode  of  writing,  and  the  like,  which 
are  never  perfectly  reproduced  in  a  copy,  the  court  may,  even 
when  the  probate  is  conclusive,  examine  the  original,1  and  for  this 
purpose  production  of  the  original  may  be  compelled  by  subpoena 
duces  tecum?  The  probate,  however,  does  not  determine  the 
legality  of  the  dispositions  of  the  will.  In  those  States  where  the 
probate  is  only  prima  facie  evidence  as  to  realty,  it  may  be  im- 
peached by  evidence  to  the  contrary  as  to  capacity  or  execution,  or 
on  the  weight  of  evidence,3  even  by  parties  who  were  parties  to  the 
probate  proceedings.4  Where  probate  would  not  be  conclusive 
in  favor  of  a  will,  a  decree  of  the  probate  court  rejecting  the  will 
is  not  conclusive  against  it.5  Where  probate  would  be  conclusive 
in  its  favor,  rejection  is  conclusive  against  it.6  In  any  case,  the 
jurisdiction,  over  the  subject,  of  the  surrogate  whose  decree  is  pro- 
duced may  be  impeached,  and  in  a  case  of  personal  property 
where  this  is  done,  as  well  as  in  all  cases  of  real  property,  the 
validity  of  the  will  may  be  questioned.7 

61.  Formalities  of  Execution. — When  proof  of  execution  is 
necessary,  it  must  appear,  1.  That  the  will  was  subscribed  by  the 
testator,  at  the  end ;  that  is  to  say,  after,  and  in  reasonable  prox- 
imity to  the  last  clause ;  2.  That  it  was  subscribed  by  the  testator 
in  the  presence  of  each  of  at  least  two  witnesses,  or  that  it  was 
acknowledged  by  him  to  have  been  made,  to  each  of  such  attest- 
ing witnesses,  or  to  such  of  them  as  were  not  present  at  the  mak- 
ing of  the  subscription ;  3.  That  at  the  time  of  making  such  sub- 
scription, or  at  the  time  of  acknowledging  the  same, — or  both,  if 
subscribed  in  presence  of  one  and  acknowledged  after  subscrip- 
tion to  the  other, — he  declared  in  the  presence  of  both  witnesses, 
or  in  the  presence  of  each,  that  the  instrument  was  his  will ;  4. 
That  each  of  at  least  two  such  witnesses  signed  his  name  as  a 


v.  Hunter,  7  111.  (2  Gilm.)  657;  Hale  v.  Monroe,  28  Md.  98.  See  also,  as  to  probate 
by  less  than  the  statutory  number  of  witnesses,  paragraph  59,  note  8. 

1  1  Wins.  Exr.  6th  Am.  ed.  637,  n.  citing  Manning  v.  Purcell,  24  L.  J.  Ch.  623,  n. 
3  Redf.  on  W.  62  (8)  and  n. 

8  See  Kenyon  v.  Stewart,  44  Penn.  St.  179,  unless  deposited  in  the  probate  court, 
pursuant  to  law.  Randall  v.  Hodges,  8  Bland  (Md.)  477. 

8  See  Staring  v.  Bowen,  6  Barb.  109 ;  Rowland  v.  Evans,  6  Penn.  St.  435  ;  Holi- 
day v.  Ward,  19  Id.  490 ;  Kenyon  v.  Stewart,  44  Id.  179.  The  opposing  party  may 
even  show  statements  mado  out  of  court  by  one  of  the  subscribing  witnesses,  in  order 
to  contradict  the  statements  of  such  witness  in  the  record  of  the  proofs  before  the 
surrogate,  as  to  the  due  execution  of  the  will.  Otterson  v.  llofford,  86  N.  J.  (7  Vroom) 
129,  s.  o.  13  Am.  R.  429.  See  note  8  (below). 

4  Bogardus  v.  Clark,  4  Paige,  623. 

5  Smith  v.  Bonsall,  6  Rawlo  (Penn.)  80. 

6  Picquet  v.  Swan,  4  Mas.  461. 

T  Redt  Surr.  Pr.  110;  Code  of  1877,  §  2473. 


112  ACTIONS  BY  AND  AGAINST 

witness  at  the  end  of  the  will,  at  the  testator's  request.  Any  of 
the  acts  thus  required  of  the  testator  may  be  done  by  another,  in 
his  presence  and  by  his  direction  or  manifested  approval :  and  the 
order  in  which  they  are  to  be  done  is  not  material,  except  that 
the  testator  must  subscribe  before  the  witnesses  do.1  On  a  trial 
in  an  action  at  law,  the  execution  may  be  proved  by  one  witness, 
if  he  is  able  to  prove  perfect  execution  ;a  but  if  he  can  only  prove 
his  own  signature,  the  other  witnesses,  if  living,  must  be  pro- 
duced, or,  if  they  are  dead,  their  handwriting  and  that  of  the  tes- 
tator must  be  proved ;  and  it  is  then  a  question  of  fact,  whether, 
under  all  the  circumstances,  all  the  requisites  of  the  statute  are 
to  be  deemed  complied  with.8  The  testimony  of  the  subscribing 
witnesses,  whether  in  support  of  or  against  the  will,  is  not  con- 
clusive, but  is  liable  to  be  rebutted  by  other  evidence,  either 
direct  or  circumstantial.4  But  the  rebutting  proof  should  be 
clear.5  The  signature  of  a  deceased  witness  to  a  full  attestation 
clause  is  not  alone  enough,  against  the  positive  testimony  of  a 
surviving  witness.6  But  a  full  attestation  clause  may  after  the 
lapse  of  time  be  enough  as  against  the  entire  forgetfulness  of  the 
witnesses.7  The  subscribing  witnesses  are  subject  to  same  rules 
as  to  contradiction  and  impeachment  as  other  witnesses.8  The 
conduct  and  declarations  of  the  testator  at  the  time  of  the  execu- 
tion are  competent  upon  the  question  of  execution,  and  its  intelli- 
gence and  freedom,  because  a  part  of  the  res  gestce;  but  his  pre- 
vious or  subsequent  conduct  and  declarations  are  not  competent 
upon  this  question,9  except  within  the  limits  below  stated  as  to 


1  These  rules,  which  state  the  requisites  under  the  New  York  statute,  ore  from 
Redf.  SUIT.  Pr.  76.     The  statutes  in  the  various  States  vary  more  or  less. 

2  Cornwall  v.  Wooley,  1  Abb.  Ct.  App.  Dec.  441.     Otherwise,  perhaps,  in  an  ac- 
tion in  equity  to  establish  the  will.     Thornton  v.  Thornton,  39  Vt.  122,  s.  c.  6  Am. 
L.  Reg.  N.  S.  841. 

3  Jackson  v.  Le  Grange,  19  Johns.  386 ;  Jackson  v.  Yickory,  1  Wend.  406. 

4  Orser  v.  Orser,  24  N.  Y.  51 ;  Theological  Seminary  of  Auburn  v.  Calhoun,  25 
N.  Y.  422,  reVg  88  Barb.  143  ;  s.  P.  Peck  v.  Cary,  27  N.  Y.  9,  affi'g  38  Barb.  77 ;  and 
see  25  N.  Y.  425,  note,  and  cases  cited. 

B  Redf.  Surr.  Pr.  98. 

6  Orser  v.  Orser  (above). 

7  Nelson  v.  McGiffert,  8  Barb.  Ch.  158. 

8  Peebles  v.  Case,  2  Bradf.  226  ;  Losee  v.  Losee,  2  Hill,  609.     And  as  to  weight  of 
testimony,  see  Thornton  v.  Thornton,  89  Vt.  122,  s.  c.  6  Am.  L.  Reg.  N.  8.  841; 
Stevens  v.  Van  Cleve,  4  Wash.  C.  Ct.  262;    Turner  v.  Cheeseman,  15  N.  J.  Eq.  243. 
But  evidence  of  the  bad  character  of  a  deceased  subscribing  witness  is  not  admissible. 
Boylan  ads.  Meeker,  4  Dutcher,  275.     Whether  his  declarations  of  opinion  as  to  the 
insanity  of  testator  are  admissible,  compare  Scribner  v.  Crane,  2  Paige,  147;  Baxter 
v.  Abbott,  7  Gray  (Mass.)  71 ;  Beaubien  v.  Cicotte,  12  Mich.  459.     The  party  calling 
the  subscribing  witness  to  support  the  will,  may  impeach  his  testimony  unfavorable 
to  the  will,  by  proof  of  his  declarations  of  fact  in  its  favor,  though  not  by  declara- 
tions of  contrary  opinion,  nor  by  attacking  hig  veracity  generally.    Thornton  v. 
Thornton  (above).    Compare  Fulton  Bank  v.  Stafford.  2  Wend.  483  ;  and,  as  to  con- 
trary opinions,  Schell  v.  Plumb,  55  N.  Y.  592,  affi'g  16  Abb.  Pr.  N.  S.  19. 

'Waterman  v.  Whitney,  11  N.  Y.  172;  Boylan  ads.  Meeker  (above).     Compare 
Sugden  v.  Ld.  St.  Leonards,  L.  R.  1  Prob.  Div.  154,  227. 


HEIRS  AND  NEXT  OF  K.IN,  DEVISEES  AND  LEGATEES.         113 

mental  capacity  and  undue  influence.1  Proof  of  due  execution 
raises  a  sufficient  presumption  of  knowledge  of  the  contents,  un- 
less circumstances  of  suspicion  exist, — for  instance,  where  the 
will  was  drawn  up  by  a  devisee.  In  such  case  he  must  give 
affirmative  evidence  that  the  testator  knew  its  contents,  and  that 
it  expressed  his  real  intentions.  Any  evidence  is  sufficient  which 
shows  that  he  had  full  knowledge  of  the  contents,  and  executed 
it  freely  and  without  undue  influence.2  So  where  the  testator  is 
shown  to  be  unable  to  read,  there  should  be  some  evidence  that 
he  knew  its  contents.  The  will  cannot  be  shown  to  be  void  by 
parol  proof  that  dispositions  which  the  testator  directed  to  be  in- 
serted were  omitted  by  the  mistake  of  the  scrivener.  For  the 
purpose  of  determining  the  genuineness  of  the  will,  the  circum- 
stances attending  its  production,  the  history  of  its  custody,  and 
the  declarations  of  its  custodian  made  during  the  custody,  are 
competent.3  The  genuineness  of  signatures  may  be  proved  by 
the  opinion  of  any  witness  who  has  at  any  time  seen  the  person 
write,  or  who  has  received  documents  purporting  to  be  written 
by  the  person,  in  answer  to  documents  written  by  himself,  or 
under  his  authority,  and  addressed  to  the  person,  or  to  whom,  in 
the  ordinary  course  of  business,  documents  purporting  to  be 
written  by  the  person  have  been  habitually  submitted.4  But  it 
cannot  be  proved  by  the  opinion  of  an  expert,  unless  he  is 
acquainted  with  the  handwriting,  nor  can  his  opinion  be  re- 
ceived on  a  comparison  of  handwritings,  unless  the  signature 
produced  is  attached  to  papers  otherwise  in  evidence,  and  mate- 
rial to  the  issue,  or  admitted  to  be  genuine.5  Photographic  copies 
of  a  signature  are  not  admissible  to  aid  the  expert.6 

62.  Testamentary  Capacity^ — The  burden  of  proving  to  the 
satisfaction  of  the  court  that  the  paper  in  question  does  declare 
the  will  of  the  deceased,  and  that  the  supposed  testator  was,  at 
the  time  of  making  and  publishing  the  document  propounded 
as  his  will,  of  sound  and  disposing  mind  and  memory,8  is  on  the 

1  Paragraphs  63  and  70.  And  except,  perhaps,  if  part  of  the  res  gestce  of  his 
custody  of  the  will  (see  paragraph  75,  note  9,  below),  or  to  rebut  evidence  impeach- 
ing the  genuineness  of  the  signature  (Taylor  Will  Case,  10  Abb.  Pr.  N.  S.  306),  or 
where  the  declarations  are  offered  to  support  or  rebut  evidence  of  his  ignorance  of 
its  contents  (Davis  v.  Rogers,  1  Houst.  44;  Redf.  on  Wills,  567). 

s  Lake  v.  Ranney,  33  Barb.  49,  and  cases  cited ;  see  Harrison  v.  Rowan,  3  Wash. 
C.  Ct.  580 ;  Comstock  v.  Hadlyme,  8  Conn.  254. 

8  Boylan  ads.  Meeker,  4  Dutcher,  275,  s.  p.  Nexsen  v.  Nexsen,  3  Abb.  Ct.  App. 
Dec.  SCO.  Subject,  however,  to  the  professional  privilege,  if  any  exist  Taylor  Will 
Case,  10  Abb.  Pr.  N.  S.  300.  See  N.  Y.  Code  Civ.  Pro.  §§  833-836;  3  Wall.  176, 
192;  Redf.  Surr.  Pr.  101. 

4  See  pp.  393-7  of  this  vol. 

6  This  is  the  New  York  rule.     Johnson  v.  Hicks,  1  Lans.  150,  162.     The  English 
rule  allows  irrelevant  documents  to  be  proved  and  submitted  to  the  jury  fur  purpose 
of  comparison.    Steph.  art.  52 ;   1  Greenl.  $  681. 

•  Taylor  Will  Case,  10  Abb.  Pr.  N.  S.  300. 

7  As  to  age,  see  paragraphs  27-30. 

8  For  the  test  m  case  of  delusion,  see  Banks  v.  Goodfellow,  L.  R.  6  Q.  B.  649 ; 
Van  Guyeling  v.  Van  Keuren,  36  N.  Y.  70 ;  Clapp  v.  Fullerton,  34  Id.  190  ;  Bonard 

8 


114:  ACTIONS  BY  AND  AGAINST 

party  undertaking  to  establish  the  will ;  and  this  burden  is  not 
shifted  during  the  progress  of  the  trial,  and  is  not  removed  by 
proof  of  the  formal  execution  of  the  will  and  the  testamentary 
competency,  by  the  attesting  witnesses,  but  remains  with  the 
party  setting  up  the  will.1  The  ordinary  presumption  of  sanity 
does  not  alone  suffice  to  dispense  with  all  evidence  on  the  point. 
Slight  evidence,  however,  is  sufficient  to  go  to  the  jury.2 

After  the  formal  and  usually  slight  evidence  of  mental 
capacity  has  been  given,  if  evidence  to  the  contrary  is  adduced 
by  those  resisting  the  will,  it  is  in  the  discretion  of  the  court,  if 
riot  a  matter  of  right,  that  the  party  alleging  the  will  may  give 
cumulative  evidence  of  capacity,  &c.,  in  rebuttal.3  Evidence 
that  incapacity  of  a  continuing  nature  previously  existed  (within 
reasonable  limit  of  time),  is  sufficient  to  raise  a  presumption  of 
its  existence  at  the  time  of  execution,  which  must  be  rebutted 
by  affirmative  evidence.4  Evidence  of  the  existence  of  such  in- 
capacity, at  a  time  subsequent  to  the  execution  of  the  will,  is 
competent  in  case  of  idiocy,  and  is  competent  in  other  cases  if 
sufficiently  near  in  point  of  time  to  raise  a  presumption  (in  con- 
nection with  other  evidence,  and  when  the  nature  of  the  defect 
is  considered)  that  it  existed  at  the  time  of  execution ;  but  is  not 
competent  except  on  that  ground.5 

A  general  or  continuing  insanity  having  been  shown  within  a 
reasonable  time  prior  to  the  act,  the  burden  is  thrown  upon  the 
other  party  to  show  a  lucid  interval  at  the  time  of  the  act.6  Evi- 
dence of  cessation  of  the  symptoms  is  not  enough,  but  there 
must  be  evidence  of  sufficient  restoration  to  act  intelligently  and 


"Will  Case,  16  Abb.  Pr.  N.  S.  128;  Dunham's  Appeal,  27  Conn.  192;  Boughton  v. 
Knight,  L.  R.  Prob.  &  D.  64,  68;  Duffield  v.  Morris,  2  Harr.  (Del.)  3*75;  Stack- 
house  v.  Horton,  15  N.  J.  Eq.  202;  Redf.  Am.  Cas.  on  L.  of  Wills,  384.  For  the 
test  in  case  of  imbecility  or  mental  weakness,  see  Delafield  v.  Parish,  25  N.  Y.  9,  27, 
29,  overruling  Stewart  v.  Lispenard,  26  Wend.  225.  Whether  it  be  deemed  that  a 
will  requires  greater  capacity  than  a  contract  (as  said  in  Boughton  v.  Knight,  above, 
which  is  usually  sound  as  to  mere  question  of  mental  capacity),  or  that  a  contract 
requires  greater  capacity  than  a  will  (as  said  in  Harrison  v.  Rowan,  3  Wash.  C.  Ct. 
686;  Kinne  v.  Kinne,  9  Conn.  102;  Converse  v.  Converse,  21  Vt.  168,  which  may  be 
true  on  a  question  of  weakness  in  case  of  undue  influence),  the  question  whether 
testator  had  capacity  for  contracts  or  other  transactions,  civil  or  criminal,  is  not 
relevant,  except  so  far  as  the  facts  adduced  show  testamentary  incapacity  or  suscept- 
ibility  to  undue  influence.  See  Dew  v.  Clark,  1  Hagg.  EC.  311. 

1  Delafield  v.  Parish  (above);  Redf.  Am.  Cas.  on  L.  of  Wills,  4.  Contra,  Id.  28, 
and  Higgins  v.  Carlton,  28  Md.  115.  As  to  the  right  to  open  and  close,  see  Brooks 
v.  Barrett,  7  Pick.  94 ;  Comstock  v.  Hadlyme,  8  Conn.  254 ;  Taylor  Will  Case,  10 
Abb.  Pr.  N.  S.  300. 

8  Id. ;  and  1  Wms.  on  Exrs.  6th  Am.  ed.  24-30,  and  notes  reviewing  conflicting 
cases. 

3  Taylor  Will  Case,  10  Abb.   Pr.  N    S.  300 ;   and  see  Redf.  Am.  Cas.  on  L.  of 
Wills,  82. 

4  See  Clark  v.  Fisher,  1  Paige,  171,  and  cases  cited;  and  Smith  v.  Tebbett,  L.  R. 
1  P.  <fe  D.  398. 

8  Stevens  v.  Van  Cleve,  4  Wash.  C.  Ct.  262.  Compare  Terry  v.  Buffington,  11 
Geo.  342. 

'  Dicken  v.  Johnson,  7  Geo.  488,  and  cases  cited. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.         115 

freely.1  The  reasonableness  and  good  sense  of  the  will  itself,2 
and  the  mode  in  which  it  was  executed,8  are  competent  evidence 
of  the  existence  of  a  lucid  interval  when  it  was  made.  In  the 
case  of  drunkenness,  the  evidence  must  be  directed  to  the  partic- 
ular moment,  so  as  to  show  that  the  testator  was  so  excited  by 
liquor,  or  so  conducted  himself  during  the  act,  as  to  be  at  the 
moment  legally  disqualified ; 4  or  there  must  be  evidence  of  con- 
firmed derangement  caused  by  habitual  indulgence.5  The  fact  of 
being  deaf  and  dumb  does  not  now  raise  a  legal  presumption  of 
mental  incapacity  ; 6  but  necessitates  stricter  proof  of  open  dealing 
and  intelligent  assent.  Old  age  alone  does  not  incapacitate.7 

63.  Conduct  and  Declarations  of  Testator, .] — On  the  question 
of  mental  condition,  whether  raised  as  to  unsoundness  or  undue 
influence,  the  conduct  and  declarations  of  the  testator,  both  be- 
fore and  after  execution,  are  competent  to  show  capacity  or  in- 
capacity, if  they  tend  to  show  its  existence  at  the  time  of  execu- 
tion,8 but  not  otherwise.9  A  sudden  change  to  excentric  and 
peculiar  habits  is  cogent  evidence  of  insanity.10  Suicide  is  not 
conclusive  evidence  of  insanity.11  The  testator's  correspondence, 
his  manner  of  conducting  business,  &c.,  are  competent.12  The 
fact  that  others  dealt  with  him  as  sound  or  unsound  of  mind,  is 
competent  when  adduced  merely  to  lay  a  foundation  for  evidence 
of  the  manner  in  which  he  received  such  treatment,  but  not 
otherwise.13 

His  declarations,  if  not  part  of  the  res  gestce  of  execution, 
must  be  offered  not  as  his  statement  of  facts  of  fraud  or  undue 
influence,  for  in  this  respect  they  are  hearsay  and  incompetent, 
but  as  statements  which,  independent  of  their  truth  or  falsity, 
disclose  his  state  of  mind,  strength  or  weakness  of  will,  inde- 
pendence or  infirmity  of  purpose,  capacity  or  imbecility.  What 


1  Lucas  v.  Parsons,  27  Geo.  693;    Boyd  v.  Eby,  8  Watts  (Penn.)  66;    Ex  parte 
Holyland,  11  Ves.  10. 

2  Cartwright  v.  Cartwright,  1  Phillira.  90,  as  qualified  in  Banks  v.  Goodfellow,  L. 
R.  6  Q.  B.  549,  and  Gombault  v.  Pub.  Admr.  4  Bradf.  226. 

3  Hall  v.  Warren,  9  Ves.  605,  8.  c.  Ewell's  Cases,  702. 

*  Peck  v.  Cary,  27  N.  Y.  9. 

5  Gardner  v.  Gardner,  22  Wend.  526. 

«  Christmas  v.  Mitchell,  3  Ired.  Eq.  535,  541.  ' 

7  Collins  v.  Townley,  21  N.  J.  Eq.  853. 

I  Boylan  ads.  Meeker,  4  Dutcher,  274. 

•  Kinne  v.  Kinne,  9  Conn.  104. 
10  Lucas  v.  Parsons,  27  Geo.  593. 

II  Brooks  v.  Barrett,  7  Pick.  94;  and  see  Burrows  v.  Burrows,  1  Hagg.  109,  148. 
19  Harper  v.  Harper,  1  N.  Y.  Supm.  Ct.  (T.  <fc  C.)  851 ;   s.  P.  United  States  v. 

Sharp,  1  Pet.  C.  Ct.  118;  Irish  v.  Smith,  8  Serg.  A  R.  578. 

13  Thus  letters  written  to  him,  even  by  persons  since  deceased,  are  not  competent 
evidence  as  to  his  mental  soundness,  unless  his  conduct  in  reference  thereto  is  shown. 
The  fact  that  they  were  found  in  his  possession  is  not  enough.  Doe  d.  Wright  v. 
Tatham,  5  Clark  <fe  F.  670;  7  Ad.  <fe  E.  813.  But  a  witness  may  testify  that  he  waa 
told  by  the  wife  in  the  husband's  presence  that  he  did  not  attend  to  business,  he  was 
incapable, — and  that  he  said  nothing.  Irish  v.  Smith,  8  Serg.  &  R.  578. 


116  ACTIONS  BY  AND  AGAINST 

the  testator  said,  the  law  does  not  credit,  for  it  is  unsworn ;  but 
the  fact  that  he  said  it,  the  law  receives,  because  to  ascertain  his 
state  of  mind  we  must  hear  how  he  talked,  and  read  what  he 
wrote.  His  declaration  is  not  evidence  of  the  fact  declared,  but 
it  is  evidence  of  the  state  of  mind  from  which  the  declaration 
proceeded.1  With  this  purpose,  great  latitude  is  allowed  in  the 
admission  of  such  evidence.2  The  rule  allows  previous  as  well  as 
subsequent  declarations  as  to  testamentary  intentions  to  be  received 
in  evidence.8  The  weight  of  the  declarations  depends  on  their  prox- 
imity in  point  of  time  to  the  act,  and  on  whether  they  were  before 
or  after  it.  Declarations  before  the  act  are  more  pregnant  of 
presumption  than  those  made  after  it;  and  a  state  of  weakness 
shown  to  exist  before  the  act,  being  presumed  to  continue,  affords 
more  influential  evidence  than  if  only  shown  to  exist  after  the  act, 
because  it  is  possible  that  the  wealoiess  might  have  intervened.4 
Unreasonableness  of  a  will  is,  alone,  no  evidence  of  incapacity ; 5 
but  in  connection  with  evidence  of  mental  unsoundness,  or  of 
weakness  and  influence,  or  intoxication,  it  is  to  be  considered  in 
corroboration  or  rebuttal  of  those  allegations;  and,  in  such 
case,  evidence  of  the  situation  of  the  family  and  property  is  com- 
petent for  the  purpose  of  throwing  light  upon  the  reasonableness 
of  the  will.6  In  proportion  as  the  will  departs  from  reasonable 
and  natural  division  of  the  estate,  evidence  of  mental  competency 
and  evidence  to  rebut  circumstances  tending  to  show  undue  influ- 
ence becomes  necessary. 

64.  Opinions  as  to  mental  soundness.] — On  the  question  of 
the  testator's  mental  capacity,  a  Subscribing  witness  may  state  the 
opinion  which,  at  the  time  of  the  execution,  he  formed.  It  is 
not  necessary  that  he  should  first  state  the  facts  upon  which  he 
formed  this  impression.7  The  fact  that  he  was  an  attesting  wit- 
ness gives  the  right  to  ask  his  opinion.  All  the  facts  and  cir- 
cumstances seen  or  known  by  the  witness  at  the  time  may  be 
brought  out  on  direct  or  cross-examination ; 8  but  the  opinion  is 
not  excluded,  even  if  the  facts  engendering  it  have  been  for- 
gotten.9 

An  Expert 10  may  testify  directly  as  to  the  mental  capacity,  in 


1  Waterman  v.  Whitney,  11  N.  Y.  157. 

*  Robinson  v.  Adams,  62  Me.  369,  s.  c.  16  Am.  R.  473. 

3  Tunison  v.  Tunison,  4  Bradf.  138;    Dennison's  Appeal,  29  Conn.  399;    Den  v. 
Vancleave,  5  N.  J.  L.  (2  South.)  589.     Even  the  draft  of  a  former  will  more  or  less 
similar,  directed  or  approved,  though  not  executed  by  the  testator,  ia  competent. 
Thornton  v.  Thornton,  39  Vt.  122,  s.  c.  6  Am.  L.  Reg.  N.  S.  341. 

4  See  1  Redf.  on  Wills,  1 36-163,  548. 

8  Munday  v.  Taylor,  7  Bush  (Ky.),  491 ;  Ross  v.  Christman,  1  Ired,  L.  209. 

6  Per  WALWOBTH,  Ch.,  Betts  v.  Jackson,  6  Wend.  175. 

7  Robinson  v.  Adams,  62  Me.  369,  B.  c.  16  Am.  R.  473. 

8  Id. 

9  Clapp  v.  Fullerton,  34  N.  Y.  190. 

10  The  question  whether  the  witness  is  an  expert  is  not  in  the  discretion  of  the 
judge,  but  is  a  question  of  law  on  the  facts  concerning  qualifications.     Baxter  v.  Ab- 


HEIRS  AND  NEXT  OF  KTN,  DEVISEES  AND  LEGATEES.        117 

either  of  three  ways  :  1.  If  he  had  adequate  opportunities  of  per- 
sonal examination  of  the  testator,  he  may  state  his  opinion  positive- 
ly, based  upon  his  personal  knowledge  of  the  facts,  but  not  upon 
hearsay,1  nor  upon  conflicting  testimony  in  the  cause.8  2.  An  ex- 
pert who  has  heard  all3  the  testimony  adduced  upon  the  trial 
bearing  on  the  question,  may,  if  it  is  not  conflicting,  give  his 
opinion  on  the  question,  what  the  facts  sworn  to,  if  true,  would 
indicate  as  to  the  mental  condition.4  3.  An  expert  may  be  asked 
what  a  supposed  state  of  facts,  put  to  him  hypothetically,  but 
corresponding  in  details  to  the  facts  already  in  evidence,  would 
indicate  as  to  the  mental  condition.5  When  the  evidence  involves 
conflict,  the  opinion,  if  not  based  wholly  on  personal  examination, 
should  be  drawn  out  by  an  hypothetical  question,  having  refer- 
ence to  the  facts  in  evidence  on  one  side  or  both,  or  on  each  side 
separately.6  The  expert  is  not  to  be  substituted  for  the  jury ; 
but  so  long  as  the  question  is  framed  according  to  the  principles 
here  stated,  it  can  be  no  objection  to  it  that  the  issue  and  the 
other  evidence  is  such  that  the  question  to  be  submitted  to  the 
jury  must  call  for  the  same  answer.  An  expert  may  also,  within 
limits  not  very  well  defined,  be  asked  general  questions  upon  the 
laws  of  mental  disorder,  decay,  or  imperfect  development,  rele- 
vant to  the  case,  or  upon  the  consistency  with  each  other  of  al- 
leged symptoms,  for  the  purpose  of  enhancing  the  qualifications 
of  the  court  or  jury  to  weigh  and  apply  the  evidence ;  and,  on 
cross-examination,  he  may  be  interrogated  generally  for  the  pur- 
pose of  testing  his  qualifications.7 

An  Ordinary  witness  (that  is  to  say,  any  witness  other  than 
an  expert  or  subscribing  witness)  may  testify  to  facts  and  cir- 
cumstances within  his  own  knowledge  bearing  on  the  question  of 
mental  capacity ;  and  after  he  has  stated  them,  if  they  show  reason- 
able means  of  forming  an  impression,8  he  may  be  asked,  either  on 


bott,  7  Gray  (Mass.)  71.  An  educated,  practising  physician,  who  attended  the  testa- 
tor, is  competent,  though  not  specially  conversant  with  insanity ;  and,  in  a  case  of 
gradual  decay,  the  family  physician's  opinion  is  more  cogent  than  that  of  a  stranger 
who  is  a  specialist.  Id. 

1  The  better  opinion  is  that,  under  this  rule,  a  medical  witness  must  give  the  facts 
on  which  his  opinion  is  founded,  in  connection  with  his  opinion,  lftho.se  facts  neces- 
sarily include  information  given  him  by  the  attendants  of  the  patient,  his  opinion  is 
not  competent,  for  those  communications  are  hearsay.  Heald  v.  Thing,  45  Me.  896, 
a.  P.  Wetherbee  v.  Wetherbee,  38  Vt.  464. 

*  Woodbury  v.  Obear,  7  Gray  (Mass.)  467,  471. 

8  People  v.  Sanchez,  22  N.  Y.  147,  154. 

4  Redf.  Surr.  Pr.  103;  People  v.  Lake,  12  N.  Y.  358;  Commonw.  v.  Rogers,  7 
Mete.  500. 

4  Bonard's  Will,  16  Abb.  Pr.  N.  S.  128. 

6  Woodbury  v.  Obear  (above).     This  is  the  better  mode  of  inquiry  than  referring 
to  the  testimony.     See  Dexter  v.  Hall,  15  Wall.  14,  26. 

7  The  principal  elements  of  qualification,  apart  from  personal  examination  of  the 
testator,  are  knowledge  of  the  subject  of  mental  disorder,  experience  in  de.iling  with 
it,  freedom  from  any  peculiar  abstract  theory,  and  from  conceit.     The  fact  of  receiv- 
ing large  compensation  for  testifying  is  not  in  itself  derogatory  to  the  '.vitnes-".     Peo- 
ple v.  Montgomery,  13  Abb.  Pr.  N.  S.  209. 

8  An  opinion  of  an  ordinary  witness  is  competent  in  connection  with  the  facts  ob- 


118  ACTIONS  BY  AND  AGAINST 

direct  or  cross-examination,  the  impression  as  to  mental  sound- 
ness made  on  his  mind  at  the  time  by  the  acts  and  declarations 
of  the  testator  to  which  he  has  testified,  and  may  characterize 
them  as  rational  or  irrational ;  *  but  he  cannot  express  an  opinion 
on  the  general  question,  whether  the  mind  of  the  testator  was 
sound  or  unsound,8  nor  testify  to  his  opinion,  or  to  impressions 
made  upon  his  mind,  independently  of  stating  the  facts  and  cir- 
cumstances.3 Nor  can  he  be  asked  the  broad  question  whether 
the  testator  was  of  sound  and  disposing  mind,  or  its  equiva- 
lent in  any  form.  The  question  must  be  so  framed  as  not  to  em- 
brace the  law  of  the  case.4  But  where  the  alleged  incapacity 
is  imbecility,  as  distinguished  from  delusion,  such  a  witness 
may  be  asked  to  state  the  character  of  the  testator  in  respect  to 
decision  and  independence,  and  whether  he  appeared  capable  of 
attending  to  business,5 — all  such  statements  being  preceded  by  a 
statement  of  the  facts.  Such  a  witness  cannot,  either  on  direct 
or  cross-examination,  be  asked  his  opinion  on  a  hypothetical 
question.6  Such  a  witness  is,  however,  competent  to  testify 
whether  testator  was  sick  or  well,7  able  to  help  himself,  or  re- 
served by  him,  although  founded  on  observation  at  a  single  interview,  and  of  which, 
notwithstanding  a  general  impresaion  of  mental  quality,  he  remembers  no  distinct 
marked  act  of  folly  or  childishness.  Clary  v.  Clary,  2  Ired.  78 ;  Potts  v.  House,  6 
Geo.  324. 

1  Clapp  v.  Fullerton,  34  N.  Y.  190.     A  witness  giving  facts  may  say,  "His  coun- 
tenance indicated  childishness."    The  expression  of  countenance  is  matter  of  fact, 
though  depending  in  some  measure  on  opinion.     Irish  v.  Smith,  8  Serg.  &  R.  678, 
s.  P.  De  Witt  v.  Barley,  17  N.  Y.  340,  350.     A  witness  having  testified  to  facts  was 
allowed  to  say,  "His  insanity  manifested  iteelf  in  hostility  to  myself," — this  being  re- 
garded rather  as  a  general  statement  of  fact,  than  an  opinion.     Pelamourges  v.  Clark, 
9  Iowa,  17. 

2  Clapp  v.  Fullerton  (above).     Compare  Pidcock  v.  Potter,  68  Penn.  St.  842,  s.  o. 
8  Am.  R.  181.    An  answer  by  an  ordinary  witness,  that  he  observed  nothing  peculiar, 
did  not  observe  any  failure  of  mind — being  a  mere  negation,  does  not  amount  to  an  opin- 
ion which  it  is  error  to  receive.     Robinson  v.  Adams,  62  Me.  369,  s.  c.  16  Am.  R.  473. 

8  Hewlett  v.  Wood,  55  N.  Y.  634;  Cram  v.  Cram,  83  Vt.  15;  Dicken  v.  Johnson, 
7  Geo.  484,  and  cases  cited;  Hickman  v.  State,  88  Tex.  190.  Contra,  Beaubien  v. 
Cicotte,  12  Mich.  459,  and  State  v.  Pike,  61  N.  H.  105,  s.  c.  11  Am.  L.  Reg.  N.  S.  233, 
where  the  cases  are  reviewed,  and  it  is  held  that  the  opinion  is  competent  on  direct, 
leaving  the  facts  to  be  brought  out  on  cross-examination.  See  farther  on  this 
subject  Brooke  v.  Townshend,  7  Gill,  10,  27;  Dunham's  Appeal,  27  Conn.  192.  It 
has  been  said,  in  a  criminal  case,  that  the  circumstances  must  be  such  as  to  have 
afforded  the  opportunity  to  form  an  accurate  judgment  as  to  the  existence  or  non- 
existence  of  the  disease,  considered  with  reference  to  the  character  or  degree  in  which 
it  is  alleged  to  exist.  Powell  v.  State,  25  Ala.  21.  But  this,  if  applicable  at  all  to 
testamentary  causes,  must  be  taken  with  the  qualification  that,  when  the  facts  and 
circumstances  are  sufficiently  connected  with  the  time  of  execution,  the  impression 
of  a  casual  observer  of  the  conduct  and  language  of  the  testator  may  be  competent. 

The  important  elements  in  the  weight  of  the  opinion  of  a  non-expert  are  the  intel- 
ligence of  the  witness,  experience  with  the  subject,  freedom  from  abstract  theories, 
and  from  interest  or  prejudice,  personal  acquaintance  with  the  decedent,  the  nature 
and  adequacy  of  the  facts  stated  as  the  ground  of  the  opinion,  and  the  fidelity  of  the 
witness's  memory  of  those  facts. 

4I)eWittv.  Barley,  17  N.  Y.  847;  Deshon  v.  Merchants'  Bank,  8  Bosw.  461. 
Contra.  Beaubien  v.  Cicotte  (above). 

5  Gardiner  v.  Gardiner,  34  N.  Y.  155,  165. 

6  Dunham's  Appeal,  27  Conn.  192. 

1  Higbie  v.  Guardian  Mut.  Life,  63  N.  Y.  603 ;  66  Barb.  462. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        119 

quiring  assistance,1  intoxicated,2  deaf,  dumb,3  or  blind.  Common 
repute,  or  the  opinion  of  the  neighborhood,  is  not  competent  evi- 
dence on  the  question  of  mental  capacity.4  BooTts,  whether  writ- 
ten by  lawyers  or  physicians,  cannot  be  read  to  the  jury  by  way 
of  evidence ; 5  but  may,  within  proper  limits,  be  read  and  com- 
mented on  in  argument. 

65.  Hereditary  insanity^ — Where  there  is  evidence  directly 
relating  to  the  testator  and  tending  to  show  insanity  in  him  (as 
distinguished  from  imbecility 6),  it  is  competent  to  show  the  in- 
sanity of  a  parent  or  of  an  uncle.7 

66.  Inquisitions  and  other  adjudications^ — An  inquisition, 
if  taken  on  notice  to  the  subject  of  it,8  though  without  notice  to 
the  parties  to  the  present  action,  is  prima  facie  evidence  of  tes- 
tamentary incapacity  during  the  period  expressly 9  overreached 
by  it  pursuant  to  the  statute,  and,  if  a  guardian  is  thereupon  ap- 
pointed, is  conclusive  evidence  of  incapacity  from  the  time  of  the 
finding  until  further  direction  of  the  court,  except  that  a  will 
may  be  proved  to  have  been  made  in  a  lucid  interval.10 

Other  adjudications  are  not  conclusive  except  as  between  the 
parties  to  them  and  those  claiming  under  such  parties,11  nor  always 
even  competent  then. 

A  verdict  on  the  mental  state  on  a  particular  day,  is  held  not 
even  prima  facie  evidence  of  the  state  on  a  prior  or  subsequent 
day.12 

67.  Undue  influence, — the  burden  of  proof. ~\ — Where  no  de- 
fect of  powers  on  the  part  of  the  testator  is  indicated,  the  burden 
of  proving  undue  influence  is  on  the  party  alleging  it.13    In  such 
case  the  mere  fact  of  the  existence  of  an  intimate  or  fiduciary  re- 
lation between  the  testator  and  the  person  provided  for,  does  not, 
without  evidence  that  the  latter  exerted  some  influence  in  the 


I  Sloan  v.  N.  T.  Central  R.R.  Co.  45  N.  Y.  125. 

8  People  v.  Eastwood,  14  N.  Y.  562,  affi'g  3  Park.  Cr.  25. 
8  Rex  T.  Pritchard,  7  C.  <fe  P.  303,  805 ;  King  v.  Jones,  1  Leach  0.  C.  102. 
4  Foster  v.  Brooks,  6  Geo.  287 ;  Lancaster  Co.  Bk.  v.  Moore,  78  Penn.  St.  407. 
•  Commonwealth  v.  Wilson,    1   Gray  (Mass.)  337.     Contra,  5  Cent.  L.  J.  439. 
Compare  1  Wms.  Exrs.  6th  Am.  ed.  415;  Pierson  v.  Hoag,  47  Barb.  243. 

6  Shailer  v.  Bumstead,  99  Mass.  112,  131 ;  s.  p.  Cole's  Trial,  7  Abb.  Pr.  N.  S.  321. 

7  Baxter  v.  Abbott,  7  Gray,  71,  81. 

8  Hathaway  v.  Clark,  5  Pick.  490. 

9  Rippy  v.  Gant,  4  Ired.  N.  C.  Eq.  443. 

10  The  general  rule  here  stated  is  unquestioned ;  the  exception  is  perhaps  open  to 
controversy.     See  Breed  v.  Pratt,  18  Pick.  115,  and  cases  cited;  Wadsworth  v.  Sher- 
man, 14  Barb.  169,  8  N.  Y.  382.    Lewis  v.  Jones,  50  Barb.  645  ;    Banker  v.  Banker, 
63  N.  Y.  409 ;  Hall  v.  Warren,  9  Ves.  605. 

II  Gibson  v.  Soper,  6  Gray,  279  ;  Supervisors  of  Munroe  v.  Budlong,  51  Barb.  493 ; 
Hovey  v.  Chase,  62  Me.  305 ;  and  see  1  Whart.  <fc  St.  Med.  Jur.  §  2 ;    Bogardus  v. 
Clark,  1  Edw.  266,  4  Paige,  623. 

19  Emery  v.  Hoyt,  46  111.  258. 

13  Tyler  v.  Gardner,  85  N.  Y.  669 ;  Baldwin  v.  Parker,  99  Mass.  79 ;  1  Wms, 
Exrs.  72  n.  Old  age  alone  ia  not  sufficient  ground  for  presuming  imposition.  But- 
Isr  v.  Beuaon,  1  Barb.  526. 


120  ACTIONS  BY  AND  AGAINST 

making  of  the  bequest,  raise  the  slightest  ground  for  any  pre- 
sumption of  undue  influence.1  Nor,  again,  does  the  mere  fact 
that  a  beneficiary  was  the  draftsman  of  the  will  or  gave  instruc- 
tions for  it,  raise  such  a  presumption,2  unless  he  stood  in  a  fiduci- 
ary relation.3  Nor,  again,  is  the  mere  fact  that  a  beneficiary 
possessed  influence  and  ascendancy  not  shown  to  be  undue, 
enough,  even  though  the  will  be  unreasonable ; 4  although  if  the 
evidence  justifies  the  conclusion  that  the  interfering  mind  must 
have  been  conscious  that  an  unjust  result  was  being  obtained  by 
personal  influence,  this  evidence  of  constructive  fraud,  combined 
with  the  unnatural  character  of  the  will,  may  be  enough  to  shift 
the  burden  of  proof.5  If,  however,  it  is  shown  that  the  benefici- 
ary and  the  testator  stood  in  an  intimate  or  fiduciary  relation 
toward  each  other, — such  as  that  of  parent  and  child,6  or  grand- 
child,7 husband  and  wife,8  physician  and  patient,9  legal  adviser 
and  client,10  confessor  and  penitent,11  guardian  and  ward,12  or  agent 
and  principal, — and  that  the  beneficiary 18  drew  the  will,14  or  gave 
the  instructions  to  the  draftsman,15  or  was  concerned  in  clandes- 
tine execution,16  the  burden  of  proof  is  thrown  on  him. 

Where  there  is  evidence  of  defect  in  the  powers  of  the  testa- 
tor, whether  it  be  unsoundness  or  weakness,17  or  defect  of  the 
senses,18  then  either  the  fact  that  the  beneficiary  exercised  influ- 
ence to  secure  an  unequal  will,19  or  that  he  stood  in  a  fiduciary 
relation  above  mentioned,  and  had  any  agency  in  framing  the 
document,20  or  exercised  control  over  the  testator,21  throw  upon 
the  proponent  the  burden  of  giving  evidence  of  free  and  intelli- 
gent volition. 

1  Parfitt  v.  Lawless,  L.  R.  2  P  <fc  D.  462,  468,  s.  c.  4  Moak's  Eng.  692  ;    Bleecker 
v.  Lynch,  1  Bradf.  458.     Otherwise  where  the  formation  of  the  fiduciary  relation 
was  induced  by  fraud  and  undue  influence.     Baker's  Case,  2  Redf.  Surr.  179. 

2  Coffin  v.  Coffin,  23  N.  Y.  9,  13.      Compare  Barry  v.  Butlin,  2  Moore  P.  C.  480,  1 
Curt.  Ecc.  637. 

3  Crispell  v.  Dubois,  4  Barb.  393;  Tyler  v.  Gardiner,  35  N.  Y.  559,  595. 

*  Kevill  v.  Kevill,  6  Am.  L.  Reg.  N.  S.  79.    But  as  to  the '  disposition  of  juries, 
see  1  Redf.  on  Wills,  3  ed.  527,  §  37 ;  Redf.  Am.  Cas.  on  L.  of  W.  308  n. 

5  See  Redf.  Am.  Cas.  on  L.  of  W.  504  n.  and  cases  cited. 

9  Tyler  v.  Gardiner  (above). 

*  See  Carrol  v.  Norton,  3  Bradf.  291. 

8  Baker's  Case,  2  Redf.  Surr.  179,  and  cases  cited ;  Delafield  v.  Parish  (above). 

*  Ashfield  v.  Lomi,  L.  R.  2  P.  A  D.  477,  8.  c.  4  Moak's  Eng.  700. 

10  Wilson  v.  Moran,  3  Bradf.  172. 

11  See  McGuire  v.  Kerr,  2  Bradf.  244;  Parfitt  v.  Lawless  (above). 

12  See  Limburger  v.  Rauch,  2  Abb.  Pr.  N.  S.  271 ;  Matter  of  Paige,  62  Barb.  476. 

13  Or  the  husband  or  wife  of  such  an  one.    Mowry  v.  Silber,  2  Bradf.  133  ;  Lansing 
v.  Russell,  13  Barb.  610. 

14  Crispell  v.  Dubois,,  4  Barb.  393. 

15  Delafield  v.  Parish  (above). 

16  Ashwell  v.  Lomi  (above). 

"  See  Tyler  v.  Gardiner  (above). 

18  See  Lansing  v.  Russell,  13  Barb.  610. 

19  Harrel  v.  Barrel,  1  Duvall  (Ky.)  203  ;  Redf.  Am.  Cas.  on  L.  of  W.  505  n. 
s°  See  Lee  v.  Dill,  11  Abb.  Pr.  214,  and  cases  above  cited  in  notes  6  to  16. 
J1  Fonnan  v.  Smith,  7  Lans.  443,  450,  and  cases  cited. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        121 

68.  Indirect  evidence.] — Undue  influence  may  be  shown  by 
indirect  or  circumstantial  evidence  ; l  and  BO  may  the  freedom  of 
the  testator ;  for  suspicious  circumstances,  which  change  the  bur- 
den of  proof,  do  not  alter  the  mode  of  proof,  but  require  the 
court  to  be  vigilant  in  enforcing  the  rule.8 

Opportunity  and  interest,  however,  are  not  alone  enough  to 
sustain  a  finding  of  undue  influence.8  The  evidence  must  justify 
the  conclusion  of  a  present  constraining  operative  power  upon 
the  mind  at  the  time  of  the  act.  Influence  long  before^  or 
after 5  the  act,  is  not  alone  enough,  but  may,  in  connection  with 
other  circumstances,  raise  a  presumption  of  its  existence  at  the 
time.6 

69.  Relevant  Facts.'} — On  either  side  of  the  question  of  undue 
influence  a  very  wide  range  of  inquiry  is  allowed.7    Evidence  of 
the  disposition  and  mental  qualities  of  the  testator;8  his  condi- 
tion at  the  time ; 9  his  manifestation  of  feeling  toward  those  bene- 
fited,10 and  toward  those  cut  off ; u  their  situation  in  life ; K  the  tes- 
tamentary intentions  the  testator  entertained  before  he  was  sub- 
jected to  influence  ;13  the  circumstances  of  the  preparation  of  the 
instrument ; H  the  influence  exercised,  by  the  party  charged,  over 
the  testator  in  other  matters ; 1S  and  the  personal  relation  sustained 
by  them ; 16 — is  all  competent.    It  is  also  competent  to  show  that 


I  Marvin  v.  Marvin,  3  Abb.  Ct.  App.  Dec.  192. 
4  1  Wms.  on  Exrs.  6  Am.  ed.  147,  and  n.  149. 

8  Seguine  v.  Seguine,  3  Abb.  Ct.  App.  Dec.  191 ;  Cudney  v.  Cudney,  68  N.  Y.  148. 
Many  authorities  as  to  what  is  sufficient  evidence  of  undue  influence,  may  be  found 
in  the  cases  arising  on  deeds  and  other  contracts  between  the  living ;  but  these  lay 
down  too  stringent  rules  to  be  applied  against  a  beneficiary  under  a  will.     The  law 
allows  a  person  standing  in  a  fiduciary  relation  to  use  a  degree  of  influence  to  obtain 
a  bequest  which  he  cannot  use  to  obtain  a  grant.    Parfitt  v.  Lawless,  L.  R.  2  P.  <fc  D. 
462,  468,  s.  c.  4  Moak's  Eng.  693. 

4  McMahon  v.  Ryan,  20  Penn.  St.  329. 

5  Eckert  v.  Flowery,  43  Id.  46. 

*  1  Wins,  on  Exrs.  6  Am.  ed.  72. 

7  Redf.  on  W.  3d  ed,  636,  §  51 ;  Beaubien  v.  Cicotte,  12  Mich.  459 ;  1  Wms.  Exrs, 

6  Am.  ed.  74  n. 

a  Belief  in  witchcraft,  ghosts,  spiritualism,  <fec.,  in  connection  with  evidence  of 
feeble  mind,  is  competent  on  the  question  of  undue  influence.     Woodbury  v.  Obear, 

7  Gray  (Mass.),  467,  SHAW,  C.  J.     Compare  Robinson  v.  Adams,  62  Me.  369. 

9  Directions  given  by  his  physician,  since  deceased,  competent  as  part  of  resgestce, 
Platt  v.  Platt,  58  N.  Y.  648. 

10  Beaubien  v.  Cicotte,  12  Mich.  459. 

11  Lewis  v.  Mason,  109  Mass.  169;  Fairchild  v.  Bascomb,  35  Vt.  417. 

18  Thus  their  poverty,  and  his  knowledge  of  the  intemperance  of  the  sole  legatee 
is  competent.     Fairchild  v.  Bascomb,  35  Vt.  417. 

II  Cases  in  note  4  (below).     As  to  declarations  after  it  ceased,  see  1  Redf.  on 
Wills,  651 ;  and  note  4  (below). 

14  Benubien  v.  Cicotte,  12  Mich.  459. 

15  Evidence  of  instances  in  which  tho  person  charged  with  undue  influence  exer- 
cised controlling  authority  over  the  testator  by  imperious  language,  to  which  the  tes- 
tator submitted,  is  competent.     Lewis  v.  Mason,  109  Mass.  169.     And  evidence  of 
other  transfers  of  property  obtained  by  the  same  person,  and  the  testator's  forgetful- 
ness  of  them,  is  competent.     Lewis  v.  Mason,  109  Mass.  169. 

16  The  unlawful  cohabitation  of  a  testator  with  the  mother  of  an  illegitimate  child, 


122  ACTIONS  BY  AND  AGAINST 

the  party  charged  knowingly  made  false  statements  that  he  was 
ignorant  of  the  existence  of  the  will,  or  that  its  contents  were 
less  favorable  to  him  than  in  fact  they  were.1 

70.  Declarations  and  Conduct  of  Testator.'] — When  there  is 
evidence  tending  to  show  fraud  or  undue  influence,  then  the  con- 
duct and  declarations  of  the  testator  not  only  at  the  time  of  exe- 
cution, but  before  and  after ;  are  relevant  for  the  purpose  of 
manifesting  his  mental  qualities  and  disposition,  and  consequent 
susceptibility  to  the  fraud  or  undue  influence;2  his  intelligent 
understanding  of  the  will  made ;  his  testamentary  intentions  ex- 
isting before  he  was  subjected  to  the  influence,8  and  his  satisfac- 
tion or  dissatisfaction  with  it  after  the  influence  was  removed.4 
It  seems  to  be  now  considered  that  a  declaration  which  is  compe- 
tent for  throwing  light  on  the  testator's  mind  is  not  to  be  ex- 
cluded merely  because  it  includes  his  narratives  of  menace,  or 
confessions  of  fear,  or  acknowledgments  of  submission  to  pres- 
sure or  urgency,  or  even  his  statement  that  the  will  previously 
made  was  not  freely  or  not  intelligently  executed ;  but  that  all 
that  is  requisite  to  the  competency  of  the  declarations  is  that  they 
be  of  a  nature  to  manifest  the  mental  quality,  and  be  sufficiently 
approximate  in  point  of  time  to  throw  light  on  the  mental  qual- 
ity at  the  time  of  execution ;  and  the  jury  are  to  be  directed  not 
to  regard  them  as  evidence  of  the  fact  declared.5  In  other 
words,  the  declarations  of  the  testator  as  to  the  acts  or  influence 
of  others  are  not,  alone,  competent  evidence  of  such  acts  or  in- 
fluence,6 except  when  part  01  the  res  gestce?  or  so  far  as  made  in 
the  presence  of  the  parties  against  whom  they  are  adduced; 
although,  when  the  acts  are  proved,  the  declarations  of  the  testa- 


a  legatee  in  the  will,  is  not  of  itself  sufficient  evidence  to  justify  a  jury  in  finding  un- 
due influence  on  the  part  of  the  mother.  Rudy  v.  Ulrich,  69  Penn.  St.  177,  s.  c.  8 
Am.  R.  238.  But  if  the  relation  of  intimacy  was  consciously  unlawful,  us  in  the  case 
of  a  married  man  living  with  a  paramour,  and  making  his  will  in  favor  of  her  or  her 
children,  undue  influence  may  be  inferred  by  the  jury,  as  a  question  of  fact.  Dean 
v.  Negley,  41  Penn  St.  312;  Monroe  v.  Barclay,  17  Ohio  St.  302. 

1  Fairchild  v.  Bascomb,  35  Vt.  404,  418.  And  see  Platt  v.  Platt,  58  N.  Y.  648. 
Compare  Jenkins  v.  Hall,  7  Jones  L.  N.  C.  295. 

"Shatter  v.  Bumstead,  99  Mass.  119. 

8  1  Redf.  on  W.  3d  ed.  536,  §  51 ;  Redf.  Am.  Cas.  on  L.  of  W.  487,  n. ;  Neel  v. 
Potter,  40  Penn.  St.  483;  Dennison's  Appeal,  29  Conn,  402.  So  also  is  evidence  of 
his  pecuniary  arrangements  for  the  benefit  of  those  charged  with  undue  influence  in 
procuring  the  later  will.  Beaubien  v.  Cicotte,  12  Mich.  459. 

4  Thus  to  rebut  evidence  of  undue  influence,  evidence  that  the  influence  was  after- 
wards wholly  removed,  nnd  the  testator,  though  he  lived  long  in  freedom  made  no 
alteration,  ia  competent  (Wilson  v.  Moran,  3  Bradf.  172;  1  Redf.  on  W.  526,  par.  35); 
nnd  so  a  fortiori,  is  evidence  that  he  affirmatively  recognized  the  will.  Taylor  v. 
Kelly,  31  Ala.  69.  Contra,  Lamb  v.  Girtman,  26  Geo.  625. 

8  Shatter  v.  Bumstead,  99  Mass.  113,  and  Beaubien  v.  Cicotte,  12  Mich.  459.  Thus, 
declarations  that  he  was  afraid  of  his  wife  and  compelled  to  submit  to  her  demands, 
in  order  to  have  peace,  were  held  competent.  Beaubien  v.  Cicotte  (above). 

6  1  Redf.  on  W.  546,  §  39.  And  the  fact  that  they  were  dying  declarations  does 
not  render  them  competent.  Jackson  v.  Kniffen,  2  Johns.  32. 

1  Doe  v.  Allen,  8  T.  R.  147 ;  Rose.  N,  P.  22. 


f  HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        123 

tor  may  be  given  in  evidence  to  snow  the  operation  they  had 
upon  his  mind.1 

71.  Fraud.'] — Fraud  in  obtaining  a  will  may  be  shown  by  in- 
direct and  circumstantial  evidence ;  and  any  circumstance,  how- 
soever slight,  if  not  wholly  irrelevant  to  the  issue  of  fraud,  may 
be  admitted.2 

72.  Revocation^ — The  modes  of  revocation  are  now  usually 
prescribed  by  statute ; 8  and  statutes  declaring  that  specified  acts 
shall  be  deemed  a  revocation,  'create  a  conclusive  presumption, 
which  is  not  rebuttable  by  extrinsic  evidence.4    Where  the  stat- 
ute makes  the  testator's  intent  an  essential  element,  as  in  the  case 
of  marring  the  document,  parol  evidence  is  admissible  in  respect 
to  the  intent,  within  the  limits  hereafter  stated.     In  other  cases, 
extrinsic  evidence  is  admissible  to  show  the  situation  upon  which 
the  legal  question  of  revocation  according  to  the  statute  depends ; 
and  the  effect  of  these  facts  under  the  statute  is  matter  of  law 
which  cannot  be  varied  by  evidence  of  testator's  actual  intent.5 

73.  Marring  the  document.'] — When  a  revocation  by  burning, 
cancelling,  tearing,  or  obliterating,  is  relied  on,  it  must  appear 
that  the  testator  had  testamentary  capacity  at  the  time,6  and  that 
the  act  was  done 7  by  him  or  his  authority,8  with  intent  to  re- 
voke.9    The  intent  may  be  disproved  by  evidence  that  the  testa- 
tor had  not  the  freedom  and  intelligence  requisite  for  a  testa- 
mentary act.10  Direct  proof  of  the  act  and  intent  is  not  essential ; 
for  evidence  that  a  will,  last  seen  or  heard  of  in  the  custody  of 
the  testator,  was,  after  his  death,  found  among  his  effects,  cancel- 
led, raises  a  presumption  that  the  cancellation  was  done  by  him 
with  intent  to  revoke.11    Feeble  and  incomplete  efforts  to  cancel 
or  destroy  may  be  sufficient,  where  the  evidence  of  intent  is  direct 
and  clear.12 


1  Cudney  v.  Cudney,  68  N.  T.  148. 
8  Davis  v.  Calvert,  5  Gill.  &  J.  269. 

I  2  N.  Y.  R.  S.  64  ;  4  Kent's  Com.  521.     This  statute  excludes  all  other  modes. 
Ordish  v.  McDermott,  2  Redf.  Surr.  R.  463,  and  cases  cited. 

4  Lathrop  v.  Dunlop,  4  Hun,  213,  affi'd  in  63  N.  Y.  610 ;  Walker  v.  Hall,  34  Penn. 
St.  483,  486. 

5  Adams  v.  Winne,  7  Paige,  99. 

8  Idley  v.  Bowen,  11  Wend.  227. 

7  Compare  Pryor  v.  Goggin,  17  Geo.  444 ;  Handy  v.  Handy,  15  N.  J.  Eq.  (2  He- 
Carter),  290;    Malone  v.  Hobbs,   1  Robt.  (Va.)  246;    Rankle  v.   Gates,  11  Ind.  95  ; 
Boyd  v.  Cook,  3  Leigh  (Va.)  32. 

8  The  onus  of  making  out  that  the  cancellation  of  a  will  was  the  act  of  the  testa- 
tor himself  lies  upon  those  who  oppose  the  will.     1  \yrms.  Exrs.  6th  Am.  ed.  196 ;  2 
Whart.  Ev.  §  894. 

9  Clark  v.  Smith,  34  Barb.  140,  and  cases  cited 
10  Batton  v.  Watson,  13  Geo.  62. 

II  Evans  v.  Dallow,  81  L.  J.  Prob.  128. 

ia  See  Dan  v.  Brown,  4  Cow.  483,  490.  Compare  Burns  v.  Burns,  4  Serg.  <fc  R. 
295;  Sweet  v.  Sweet,  1  Redf.  Surr.  451 ;  Smock  v.  Smock,  11  N.  J.  Eq.  (3  Stock.) 
156 ;  Bennett  v.  Sherrod,  8  Ired.  L.  (N.  C.)  303 ;  Bethel  v.  Moor,  2  Dev.  <t  B.  L. 
(N.  C.)  311 ;  Bell  v.  Fothergill,  L.  R.  2  P.  <fc  D.  148 ;  Giles  v.  Warren,  U.  401 ;  Card 
V.  Grinman,  5  Conn.  164. 


124  ACTIONS  BY  AND  AGAINST 

74.  Disappearance  of  the  document.] — Evidence  that  a 
was  once  in  existence,  and  last  heard  of  in  the  possession  of  the 
testator,  and  that  it  was  not  to  be  found  at  his  death,  raises  a 
presumption  that  it  was  destroyed  by  him  with  intent  to  cancel 
it.1    This  presumption  is  not  conclusive,2  but  it  serves  to  throw 
upon  the  party  relying  on  the  will  the  burden  of  showing  that  it 
was  not  so  destroyed,  or  that  the  testator  was  not  of  sound  mind 
at  the  time.8    The  presumption  is  not  to  be  rebutted  merely  by 
parol  evidence  of  intent  to  make  another  will.4    Evidence  that 
the  lost  will,  when  last  known  of,  was  in  the  control  of  a  person 
having  adverse  interest,  is  sufficient  to  sustain  a  finding  that  it 
was  in  existence  at  testator's  death,  or  was  fraudulently  destroyed 
by  another.5    The  fact  that  the  testator,  after  being  informed  of 
the  loss  or  destruction  of  his  will,  failed  to  make  another,  is  com- 
petent but  slight  evidence  of  intent  to  revoke ;  and  this  pre- 
sumption may  be  rebutted  by  evidence  that  the  loss  or  destruc- 
tion was  without  his  agency.6 

75.  Testator's  declarations.'] — Declarations  of  the  testator,  not 
made  in  testamentary  form,  are  not  competent  as  principal  evi- 
dence of   a  revocation,  because  the  statute  must  be  complied 
with ; 7  but  if  there  is  direct  evidence  of  an  act  of  revocation, 
such  as  the  statute  requires,  or  if  such  an  act  is  legally  presum- 
able, for  instance,  where  the  will  cannot  be  found, — evidence  of 
his  declarations  is  competent  to  repel  or  strengthen  the  presump- 
tion of  cancellation.8    A  declaration  which  is  a  narrative  of  a 
past  act, — for  instance,  that  he  had  duly  revoked  his  will, — is  in- 
competent, even  for  the  purpose  of  proving  the  intent.     It  is 
only  declarations  forming  part  of  the  res  gestcs  which  are  compe- 
tent for  such  purpose.9    Other  declarations,  before  or  after  the 


1  Idley  v.  Bowen,  11  Wend.  236 ;  Bulkley  v.  Redmond,  2  Bradf.  281.  A  principle 
of  universal  acceptance  in  both  the  English  and  American  courts.  1  Redf.  on  Wills, 
328  (48).  It  seems  that  the  nature  of  the  contents  is  material  to  the  question 
whether  the  testator  destroyed  it.  Per  Sir  J.  HANNEN,  Sugden  v.  Ld.  St.  Leonards, 
L  R.  1  Prob.  DiT.  176,  195. 

s  Brown  v.  Brown,  8  Ellis  <fe  B.  884,  s.  c.  92  Eng.  C.  L.  876.  But  it  is  more  or 
less  strong:,  according  to  the  nature  of  the  custody.  Per  COCKBURN,  C.  J.,  Sugden  v. 
Ld.  St.  Leonards,  L.  R.  1  Prob.  Div.  154,  218. 

3  Idley  v.  Bowen  (above). 

4  Betts  v.  Jacksoi>,  6  Wend.  173. 
6  See  paragraph  78. 

6  Steele  v.  Price,  5  B.  Monr.  58. 

7  Adams  v.  Winne,  7  Paige,  97. 

"  Bulkley  v.  Redmond,  2  Bradf.  285  ;  Steele  v.  Price,  5  B.  Monr.  (Ky.)  58. 

9  Dan  v.  Brown,  4  Cow.  483  ;  bisson'v.  Conger,  1  N.  Y.  Supm.  Ct.  (T.  <fe  C.)  569 ; 
Waterman  v.  Whitney,  11  N.  Y.  162.  Per  S.  L.  SELDKN,  J.  Contra,  Youndt  v. 
Youndt,  3  Grant's  Cas.  140;  Lawyer  v.  Smith,  8  Mich.  411.  Compare  Sugden  v.  Ld. 
St.  Leonards,  L.  R.  1  Prob  Div.  154;  Taylor  Will  Case,  10  Abb.  Pr.  N.  S.  306;  Keen 
v.  Keen,  L.  R.  3  P.  <fe  D.  105.  Under  the  freer  rules  of  evidence  now  administered, 
several  important  qualifications  of  this  rule  remain  to  be  considered,  viz. :  Whether 
the  res  gextce  do  not  include  the  custody  of  the  will  from  the  time  of  execution  to  the 
testator's  death,  and  whether  his  declarations  characterizing  his  possession, — as,  for 
instance,  if  he  should  use  the  will  as  evidence  in  a  proceeding  against  the  party  charged 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        125 

act,  are  not  usually  competent  as  bearing  on  the  intent,  unless 
the  question  of  intent  depends  on  unsoundness  of  mind  or  undue 
influence,  in  which  case  declarations  not  too  remote  in  point  of. 
time  are  competent  for  the  purpose  of  proving  the  state  of  the 
mental  powers.1 

76.  Subsequent  testamentary  act.'] — Evidence  that  the  testator 
executed  a  subsequent  will  does  not,  without  proof  that  its  con- 
tents were  inconsistent  with  the  earlier,3  or  that  its  disappearance 
was  by  spoliation  committed  by  the  party  claiming  under  the 
earlier  will,3  prove  a  revocation  of  the  earlier.    But  the  loss  of 
the  later  will  having  been  proved,  its  contents  may  be  shown  by 
parol,  for  the  purpose  of  proving  that  it  revoked  the  earlier  will.4 
Extrinsic  evidence  cannot  be  received  to  show  that  the  cancella- 
tion of  a  later  will  was  intended  to  revive  a  former  one.5 

77.  Constructive  revocations.'] — Implied  or  constructive  revo- 
cations, such  as  those  resulting  from  marriage,  the  birth  of  issue, 
<fcc.,  are  now  generally  defined  and  limited  by  the  statutes,  the 
terms  of  which  usually  control  the  question  of  evidence.6    In  the 


with  obtaining  its  execution  by  duress,  or  if  he  delivered  it,  mutilated,  to  counsel  as 
being  revoked,  and  as  part  of  his  instructions  for  drawing  a  new  will,  or  if  he  should 
say  he  had  made  his  will,  pointing  to  the  place  where  it  would  be  found, — are  not  in 
all  cases  admissible,  not  as  principal  evidence  of  execution  or  revocation,  but  as  ma- 
terial to  the  ambulatory  existence  and  custody  of  the  will  and  the  circumstances  of 
its  production  or  its  disappearance,  and  as  competent  on  the  question  of  intent,  without 
connection  with  the  testamentary  act.  The  English  rule  admits  the  declarations  of 
the  testator  .  to  show  the  continuing  existence  of  the  will  in  his  possession  at  the 
time  they  were  made.  Sugden  v.  Ld.  St.  Leonards,  L.  R.  1  Prob.  Div.  154,  225. 
Per  COCKBURN,  C.  J.  Another  principle  which  will  clear  up  much  apparent  conflict 
in  the  language  of  the  cases  as  to  restoration,  is,  that  revocation  does  not  result  from 
cancellation  without  intent  to  revoke;  hence,  where  the  testator  was  insane  or  deliri- 
ous when  he  tore  or  cancelled  the  paper  (and,  perhaps,  when  he  acted  under  mistake 
as  to  its  validity),  declarations  afterwards  intelligently  recognizing  it  as  his  will  are 
competent ;  for  they  are  not  offered  to  prove  a  testamentary  act.  But  after  an  intel- 
ligent revocation,  a  rejoining  of  the  fragments,  and  a  confirmation  of  the  will,  on  a 
change  of  purpose,  ought  not  to  be  competent.  Compare  Colagan  v.  Burns,  57  Me. 
449  ;  Patterson  v.  Hickey,  82  Geo.  156  ;  Whart.  Ev.  §  900,  and  cases  cited. 

1  Waterman  v.  Whitney  (above). 

s  Nelson  v.  McGiffert,  3  Barb.  Ch.  165,  and  cases  cited.  It  is  not  enough  that 
the  later  will  be  shown  to  be  different,  without  showing  in  what  the  difference  con- 
sists. Dickinson  v.  Btidolph,  11  C.  B.  N.  S.  857,  s.  c.  103  Eng.  C.  L.  356. 

3  Jones  v.  Murphy,  8  Watts  <fc  S.  301 ;  Betts  v.  Jackson,  6  Wend.  180. 

4  Brown  v.  Brown,  8  Ellis  <fe  B.  876  ;    s.  P.  Matter  of  Griswold,  15  Abb.  Pr.  299. 
And  it  has  been  held  that  an  express  revocation  contained  in  it  may  be  thus  proved, 
although  the  disposing  provisions  are  not  susceptible  of  proof.    Day  v.  Day,  2  Green. 
Ch.  549,  657;  but  on  the  contrary,  where  the  only  disposing  provisions  in  the  later 
will  are  void  for  undue  influence,  it  is  held  that  the  clause  of  revocation  alone  is  not 
sufficient  evidence  of  the  testator's  intention  to  revoke  a  former  will ;  for  the  pre- 
sumption is,  that,  if  the  second  will  is  found  to  be  invalid,  the  testator  intended  that 
the  first  should  stand,  rather  than  that  he  should  die  intestate.      Rudy  v.  Ulrich,  69 
Penn.  St.  177,  s.  c.  8  Am.  R.  238. 

*  2  N.  Y.  R.  S.  66,  §  53;  5  Centr.  L.  J.  397,  and  crises  cited;  1  Redf.  onW.  817 
(27) ;  contra,  Id.  (36).  But  it  has  been  received  to  show  that  a  later  was  not  intend- 
ed to  supersede  a  former  will.  Dempsey  v.  Lawson,  36  L.  T.  N.  S.  515. 

8  2  N.  Y.  R.  S.  64 ;  Lathr«p  v.  Dunlop,  4  Hun,  213  ;  afli'd  in  63  N.  Y.  610.  Com- 
pare Wheeler  v.  Wheeler,  1  R.  L  364. 


126  ACTIONS  BY  AND  AGAINST 

absence  of  such  a  statute,  or  in  case  of  a  will  or  alleged  revoca- 
tion before  the  statute,1  a  substantial  change  in  the  situation  of 
.the  testator's  family  or  property,  or  both,  so  great  as  to  raise  new 
testamentary  duties,3  may  be  treated  by  the  court  as  effecting  a 
revocation ;  or  if  there  is  evidence  of  an  equivocal  act  of  the  tes- 
tator tending  to  show  an  actual  intent  to  revoke,  then  a  substan- 
tial change  in  the  situation,  such  as  might  have  furnished  a  rea- 
sonable motive  for  revocation,  may  be  given  in  evidence  to  support 
the  inference  of  revocation  ; 8  but  evidence  of  the  relative  wealth 
or  poverty  of  members  of  the  family,  there  being  no  substantial 
change  in  situation,  is  not  competent.4 

At  common  law,  the  revocation  presumed  from  marriage  and 
birth  of  issue  otherwise  unprovided  for,  cannot  be  rebutted  by 
parol  evidence  of  intent.  The  question,  in  a  court  of  law  at  least, 
is  not  of  actual  intent,  but  the  revocation  is  a  legal  presumption.5 
But  the  presumption  raised  by  the  birth  of  a  child,  in  connection 
with  other  circumstances  than  marriage,  is  not  at  common  law 
conclusive.6  Even  in  case  of  constructive  revocation,  republica- 
tion  cannot  be  proved  by  parol.7 

Y8.  Action  to  Establish  Lost  or  Destroyed  will.6] — The  proof  of 
a  lost  or  destroyed  will  is  one  of  secondary  evidence  exclusively  ; 
and  the  law  accepts  the  best  evidence  that  the  nature  of  the  case 
admits,  as  to  its  valid  execution,  its  contents,  its  existence  at  tes- 
tator's death,  and  its  loss  ; 9  and  is  satisfied  if  it  tend  with  reason- 
able certainty  to  establish  those  facts.10  But  the  proof  of  the 
contents  must  be  clear  and  cogent,  though  it  need  not  always 
be  complete.11  To  prove  the  existence  of  the  will  at  the  time  of 
testator's  death,  direct  evidence  is  not  essential ; 12  but  if  testator 
had  access  to  it  when  last  known,  its  existence  at  his  death  cannot 


1  As  to  the  time  when  the  statute  took  effect  on  previous  wills,  see  4  Bradf.  447, 
8  Paige,  446. 

2  Sherry  v.  Lozier,  4  Bradf.  450,  and  cases  cited. 

3  Betts  v.  Jackson,  6  Wend.  173,  176. 

4  Id.     Compare  Warner  v.  Beach,  4  Gray,   162 ;  Brush  v.  "Willans,  4  Johns. 
Ck  606. 

6  Marston  v.  Roe,  8  Ad.  &  El.  14,  s.  o.  35  Eng.  C.  L.  303 ;  1  "Wms.  Exrs.  195, 
196 ;  1  Redf.  on  W.  300,  n.  24;  and  see  Bloomer  v.  Bloomer,  2  Bradf.  339. 

6  Sherry  v.  Lozier,  4  Bradf.  453. 

7  Carey  v.  Baughn,  36  Iowa,  540,  s.  c.  14  Am.  R.  534. 

8  Under  the  statute.     2  N.  Y.  R.  S.  68. 

9  Grant  v.  Grant,  1  Sandf.  Ch.  235. 

10  See  Everitt  v.  Everitt,  41  Barb.  385,  387,  and  Sugden  v.  Ld.  St.  Leonards,  L. 
R.  1  Prob.  Div.  154,  239. 

11  Compare,  on  this  point,  Sugden  v.  Ld.  St.  Leonards,  L.  R.  1  Prob.  Div.  154,  and 
Davis  y.  Sigourney,  8  Mete.  (Mass.)  487,  which  exhibit  the  two  opposing  views.    The 
true  principle  seems  to  be  that  entire  provisions  may  be  established,  if  shown  to  have 
been  not  dependent  on  nor  affected  by  the  portions  which  cannot  be  proved, — except 
where  the  proceeding  is  to  establish  the  will  under  a  statute  which  requires  the 
whole  to  be  proved.     An  illustration  of  this  is  the  rule  that  the  revoking  clause  may 
be  proved,  to  defeat  a  prior  will,  although  the  disposing  clauses  are  not  capable  of 
proof.     See  also  Redf.  Am.  Cas.  on  L.  of  Wills,  217  n. 

12  Schultz  v.  Schultz,  35  N.  Y.  653. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        127 

be  inferred  from  his  declarations,  made  a  month  or  so  previously, 
that  he  had  it  in  his  possession.1  In  such  case  the  presumption, 
rather  is  of  destruction  by  the  testator.2  But  any  presumption 
of  destruction  by  him,  arising  merely  from  its  disappearance,  is 
entirely  rebutted  by  evidence  that  he  had  deposited  it  with  an- 
other person,  and  did  not  afterward  have  access  to  it.3 

Where  actual  destruction  is  not  shown,  parol  evidence  is  not 
admissible  until  it  has  been  proved  that  diligent  search  for  the 
will  has  been  made  by  or  at  the  request  of  the  party  interested, 
at  the  place  where  it  is  most  likely  it  would  be  found, — as  "for 
instance  (if  last  traced  to  testator's  possession),  search  among  his 
papers  at  his  usual  place  of  residence.4  The  mere  fact  that  a 
person  having  an  adverse  interest  had  opportunities  of  access  to 
the  will  while  it  was  in  the  testator's  custody,  does  not  raise  a 
presumption  of  fraudulent  destruction ; 5  but  the  fact  that  when 
last  known  of  it  was  in  the  control  of  such  a  person,  may  sus- 
tain that  conclusion.6  Evidence  that  the  testator  gave  it  into  the 
custody  of  another  who  never  parted  with  its  possession,  but 
locked  it  up,  and  after  testator's  death  could  not  find  it,  is  enough, 
for  it  proves  either  its  existence  at  his  death  or  fraudulent  de- 
struction in  his  life-time,7  Direct  evidence  of  actual  intent  to  de- 
fraud any  particular  person,  is  not  essential.  The  fraud  contem- 
plated by  the  statute  is  the  unauthorized  defeating  of  the  will.8 
Evidence  of  fraud  or  undue  influence,  inducing  the  testator  to 
destroy  the  will  himself,  is  sufficient,9  but  a  destruction  by  his 
direction  if  freely  given  is  not  enough,  even  though  the  destruc- 
tion was  not  so  performed  as  to  amount  to  a  revocation  under  the 
statute.10  Unless  the  statute  otherwise  provides,11  the  contents 
of  a  lost  or  destroyed  will  may  be  proved  by  a  single  witness.13 
Declarations,  written  or  oral,  made  by  the  testator,  whether  be- 
fore, at,  or  after  the  execution  of  the  will,  are  competent  second- 
ary evidence  of  its  contents.13 


1  Knapp  v.  Knapp,  10  N.  Y.  276. 
s  Paragraph  74. 
*  Schultz  v.  Schultz  (above). 
4  Dan  v.  Brown,  4  Cow.  491. 

8  It  is  not  even  enough  to  go  to  the  jury.     Knapp  v.  Knapp,  10  N.  Y.  276,  280. 

6  Jones  v.  Murphy,  8  Watts  &  S.  299. 

7  Schultz  v.  Schultz  (above),  and  see  Hildreth  v.   Schillenger,  10  N.  J.  Eq.  (2 
Stockt.)  196. 

"Id. 

9  Voorhees  v.  Voorhees,  39  N.  Y.  463,  affi'g  50  Barb.  119. 

10  Timon  v.  Claffy,  45  Barb.  438. 

11  N.  Y.  R.  S.  68,  §  67,  requires  the  provisions  to  be  "  clearly  and  distinctly 
proved,  by  at  least  two  credible  witnesses,  a  correct  copy  or  draft  being  deemed 
equivalent  to  one  witness." 

14  Sugclen  v.  Ld.  St.  Leonards,  L.  R.  1  Prob.  Div.  154,  and  pee  Fetherly  v.  Wag- 
goner,  11  Wend.  699.  Even  though  he  himself  destroyed  it  under  excusable  mistake, 
and  he  is  residuary  legatee.  Wyckoff  v.  Wyckoff,  1  C.  E.  Green,  401.  That  all  the 
witnesses  must  be  produced  or  accounted  for, — see  Thornton  v.  Thornton,  39  Vt. 
122,  s.  c.  6  Am.  L.  Reg.  N.  S.  841. 

13  Sugden  v.  Ld.  St.  Leonards,  L.  R.  1  Prob.  Div.  154,  225,  241 ;  and  see  Johnson 
V.  Lyford,  L.  R.  1  P.  &  D.  546. 


128  ACTIONS  BY  AND  AGAINST 

79.  Foreign  Will.'] — A  foreign  will  is  proved  by  producing 
in  the  same  way  as  a  domestic  will  a  probate  by  a  probate  court 
witliin  the  State,  granted  either  upon  original  proof  or  upon  pro- 
duction there  of  an  exemplified  copy  of  a  foreign  probate.     An- 
cillary probate  thus  granted  within  the  State,  is  equivalent  as  evi- 
dence to  original  probate  here.1    The  foreign  exemplification, 
even  if  itself  receivable  in  evidence,  by  virtue  of  the  act  of  Con- 
gress,2 and  competent  on  the  question  of  the  rights  and  liabilities 
of  the  parties  arising  in  such  other  -State,8  cannot  be  received 
for  the  purpose  of  affecting  title  to  land  within  the  State  (un- 
less expressly  authorized  by  the  statutes  of  the  State)  ;  but  if  it 
has  not  been  recorded  in  a  probate  court  within  the  State,  the 
original  will  must  (for  such  purpose)  be  produced,  or  its  loss 
accounted  for  BO  as  to  admit  secondary  evidence.4 

80.  Ancient  Witt.~] — An  ancient  will  is  competent  prima  facie 
evidence,  without  probate,  if  it  appear  that  the  testator  is  de%,d, 
and  that  it  is  regular  on  its  face,  that  is  apparently  executed  with 
legal  formalities,  and  is  shown  to  have  come  from  the  proper  cus- 
tody, if  more  than  thirty  years  have  elapsed  since  the  testator's 
death,5  and  if  it  is  corroborated  by  other  circumstances,  such  as 
the  fact  that  possession  has  been  continuously  held  under  it. 
Mere  efflux  of  time  is  not  enough  to  dispense  with  proof  of  exe- 
cution, but  it  is  not  always  essential  to  show  possession.     It  is 
enough  if  such  account  be  given  of  it  as  may,  under  the  circum- 
stances, be  reasonably  expected,  and  as  will  afford  the  presump- 
tion  that  it  is  genuine.6    Inability  to  prove  handwriting  should 
be  shown.7    If  the  original  is  lost,  its  antiquity  and  contents  may 
be  proved  by  secondary  evidence.8    Evidence  of  the  acts  and 
declarations  of  third  persons,  when  in  possession  of  the  lands,  are 
competent  to  prove  the  continued  possession  under  the  wilL 

X. — EXTRINSIC  EVIDENCE  AFFECTING  WELLS. 

81.  Effect  of  the  Statute  of  Wills.']— The  Statute  of  Wills,  by 
requiring  testamentary  acts  to  be  expressed  and  authenticated  in 


1  Bromley  v.  Miller,  2  Supm.  Ct.  (T.  <fe  C.)  575;  Townsend  v.  Downer,  32  Vt. 
183,  216 ;  Miller  v.  James,  L.  R.  3  P.  &  D.  4. 

8  U.  S.  R.  S.  §§  905,  906.  In  such  case  the  recital  in  the  record  of  notice  of  tlie 
proceedings  is  prima  facie  evidence  that  it  was  given,  but  not  conclusive  if  jurisdic- 
tion depended  on  it.  Clark  v.  Blackington,  110  Mass.  369,  374. 

3  Robertson  v.  Barbour,  6  T.  B.  Monr.  (Ky.)  523. 

*  Graham  v.  Whitely,  26  N.  J.  L.  260.     Whether  the  original  is  competent  with- 
out such  probate,  depends  on  the  local  statutes.     See  Ives v.  Allyn,  12  Vt.  589  ;  Bar- 
stow  v.  Sprague,  40  N.  H.  27. 

*  Staring  v.  Bowen,  6  Barb.  109.     The  appearance  of  the  paper  itself,  and  the 
date,  are,  in  the  absence  of  anything  to  raise  suspicion,  competent  on  the  question  of 
age.     Enders  v.  Sternber^h  (below). 

6  This  is  the  New  York  rule.     Endera  v.  Sternbergh,  2  Abb.  Ct.  App.  Dec.  36, 
43 ;  Jackson  v.  Luquere,  5  Cow.  211.     Contra,  Merrill  v.  Sawyer,  8  Pick.  297. 

7  Northrop  v.  Wright,  7  Hill  (N.  T.)  476. 

B  Enders  v.  Sternbergh,  2  Abb.  Ct.  App.  Dec.  42.  Jackson  v.  Van  Duaen,  5 
Johns.  144. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        129 

writing,  precludes  us  from  treating  oral  declarations  as  a  testa- 
mentary act,  or  even  as  any  part  or  such  an  act.1  Every  dispo- 
sition which  the  testator  mates  must  be  embodied  in  a  writing 
that  conforms  to  the  statute.  Extrinsic  evidence  can  not  estab- 
lish a  provision  shown  to  have  been  omitted  by  mistake,  nor  even 
supply  any  essential  or  vital  part  left  blank,  in  a  provision  the 
frame  of  which  was  inserted  by  the  testator.2  A  will  may  be 
construed  in  connection  with  another  writing  to  which  it  refers  ;s 
but  it  cannot,  even  by  expressing  an  intention  to  do  so,  make  an 
unattested  instrument  a  part  of  itself,  so  as  to  effect  a  testament- 
ary disposition  without  compliance  with  the  statutory  formali- 
ties.4 

82.  Legitimate  Objects  of  Extrinsic  Evidence.] — Notwith- 
standing these  restrictions,  extrinsic  evidence  is  freely  admitted 
for  certain  purposes,  which  in  a  practical  aspect  may  be  defined 
as  four,  viz. :  to  aid  in  reading,  testing,  applying,  and  executing 
the  testamentary  declaration  of  intention.5 


1  Mann  v.  Mann,  14  Johns.  1,  affi'g  1  Johns.  Ch.  231. 

8  Per  SHAW,  C.  J.,  Tucker  v.  Seaman's  Aid  Society,  7  Mete.  205. 

3  Jackson  v.  Babcock,  12  Johns  389. 

4  Lungdon  v.  Astor,  16  N.  Y.  9 ;  Thompson  v.  Quimby,  2  Bradf.  449 ;  Clayton  v. 
Ld.  Nugent,  13  M.  &  VV.  200. 

6  Kent's  statement  of  the  rule,  in  the  leading  American  case  (Mann  v.  Mann,  1 
Johns.  Ch.  281),  is,  "Parol  evidence  cannot  be  admitted  to  supply  or  contradict,  en- 
large or  vary,  the  words  of  a  will,  nor  to  explain  the  intention  of  the  testator,  except 
in  two  specified  cases;  1,  where  there  is  a  latent  ambiguity,  arising  dehors  the  will, 
as  to  the  person  or  subject  meant  to  be  described ;  and  2,  to  rebut  a  resulting  trust. 
All  the  cases  profess  to  proceed  upon  one  or  the  other  of  these  grounds." 

Wlr.irton  (2  Whart.  Ev.  §  992)  lays  down  the  rule  thus:  "  With  two  exceptions, 
evidence  of  the  testator's  intentions  is  inadmissible  in  explanation  of  a  will.  These 
exceptions  are  as  follows:  (1.)  What  is  said  at  the  time  of  the  execution  and  attesta- 
tion is  admissible  as  part  of  the  res  gest<c,  though  not  to  contradict  the  will.  (2.) 
When  it  is  doubtful  as  to  which  of  two  or  more  extrinsic  objects  a  provision,  in  itself 
unambiguous,  is  applicable,  then  evidence  of  the  testator's  declarations  of  intention 
is  admissible;  not,  indeed,  to  interpret  the  will,  for  this  is  on  its  face  unambiguous, 
but  to  interpret  the  extrinsic  objects." 

Wigram's  seven  rules  are  (\\  igr.  Ex.  Ev.):  "  I.  A  testator  is  always  presumed  to 
use  the  words  in  which  he  expresses  himself  according  to  their  strict  and  primary 
acceptation,  unless  from  the  context  of  the  will  it  appears  that  he  has  used  them  in  a 
different  sense;  in  which  case  the  sense  iu  which  he  thus  appears  to  have  used  them 
will  be  the  sense  in  which  they  are  to  be  construed. 

"II.  Where  there  is  nothing  in  the  context  of  a  will,  from  which  it  is  apparent 
that  a  testator  has  used  the  words  in  which  he  has  expressed  himself  in  any  other 
than  their  strict  and  primary  sense,  and  where  his  words  so  interpreted  are  sensible 
with  reference  to  extrinsic  circumstances,  it  is  an  inflexible  rule  of  construction,  that  the 
words  of  the  will  shall  be  interpreted  in  their  strict  and  primary  sense,  and  in  no 
other,  although  they  may  be  capable  of  some  popular  or  secondary  interpretation, 
and  although  the  most  conclusive  evidence  of  intention  to  use  them  in  such  popular 
or  secondary  sense  be  tendered. 

"  III.  Where  there  is  nothing  in  the  context  of  a  will,  from  which  it  is  apparent 
that  a  testator  has  used  the  words  in  which  he  has  expressed  himself  in  any  other 
than  their  strict  and  primary  sense,  but  his  words  so  interpreted,  ore  insensible  with 
reference  to  extrinsic  circumstancrs,  a  court  of  law  may  look  into  the  extrinsic  circum- 
stances of  the  case,  to  see  whether  the  meaning  of  the  words  be  sensible  in  any  popu- 
lar or  secondary  sense,  of  which,  with  reference  to  these  circumstances,  they  are 
capable. 

9 


130  ACTIONS  BY  AND  AGAINST 

The  confusion  in  the  cases  upon  this  subject  arises  partly 
from  the  difficulty  of  preserving  the  distinction  between  receiving 
extrinsic  evidence  to  establish  the  testamentary  intention,  which 
is  never  allowable — and  receiving  it  to  enable  us  to  understand 
the  intention  he  has  expressed,  which  is  always  allowable.  No 
extrinsic  evidence  to  interpret  the  will,  is  admissible  except  as 
light  thrown  upon  the  words  of  the  will ;  and  the  only  intention 
of  the  testator  which  the  court  can  sanction,  is  that  which  they 
can  derive  through  the  will  itself,  it  may  be  by  the  aid  of  such 
light.  There  is  a  class  of  cases,  in  which  direct  evidence  of  the 
testator's  declarations  of  his  intention  can  be  received,  to  enable 
us  to  apply  a 'pro vision  of  the  will  accordingly,  viz. :  in  cases 
where  there  are  several  persons  or  things  equally  answering  the 
designation, — but  these  cases  are  not  in  truth  an  exception  to  the 
rule,  for  the  declarations  are  not  allowed  to  affect  the  intention, 
but  only  to  show  "what  he  meant  to  do;"  and  when  we  revert 
to  the  will,  we  may  perceive  from  the  will  that  he  has  done  it  by 
the  general  words  used,  if  in  their  ordinary  sense  they  properly 
bear  that  construction.1  If,  after  understanding  the  intention, 
we  do  not  find  that  the  will  has  declared  it  with  the  statute  for- 
malities, the  court  cannot  give  it  effect,  no  matter  how  clear  may 
be  the  evidence. 

83.  Reasons  for  its  Liberal  Admission.'] — In  favor  of  the 
liberal  application  of  the  rule  allowing  extrinsic  evidence,  it  may 


"  IV.  Where  the  characters  in  which  a  will  is  written  are  difficult  to  be  deci- 
phered, or  the  language  of  the  will  is  not  understood  by  the  court,  the  evidence  of 
persons  skilled  in  deciphering  writing,  or  who  understand  the  language  in  which  the 
will  is  written,  is  admissible  to  declare  what  the  characters  are,  or  to  inform  the 
court  of  the  proper  meaning  of  the  words. 

"V.  For  the  purpose  of  determining  the  object  of  a  testator's  bounty,  or  the  sub- 
ject of  disposition,  or  the  quantity  of  interest  intended  to  be  given  by  his  will,  a 
court  may  inquire  into  every  material  fact  relating  to  the  person  who  claims  to  be 
interested  under  the  will,  and  to  the  property  which  is  claimed  as  the  subject  of  dis- 
position, and  to  the  circumstances  of  the  testator  and  of  his  family  and  affairs,  for 
the  purpose  of  enabling  the  court  to  identify  the  person  or  thing  intended  l>y  the 
testator,  or  to  determine  the  quantity  of  interest  he  has  given  by  his  will. 

"  The  same  (it  is  conceived)  is  true  of  every  other  disputed  point  respecting  which 
it  can  be  shown  that  a  knowledge  of  extrinsic  facts,  can,  in  any  way,  be  made  j.ndl- 
lary  to  the  right  interpretation  of  a  testator's  words. 

"  VL  Where  the  words  of  a  will,  aided  by  evidence  of  the  material  facts  of  the 
case,  are  insufficient  to  determine  the  testator's  meaning,  no  evidence  will  be  admis- 
sible to  prove  what  the  testator  intended,  and  the  will  (except  in  certain  special 
cases,  see  Proposition  VII.)  will  be  void  for  uncertainty. 

"  VII.  Notwithstanding  the  rule  of  law  which  makes  a  will  void  for  uncertainty, 
where  the  words,  aided  by  evidence  of  the  material  facts  of  the  case,  are  insufficient 
to  determine  the  testator's  meaning,  courts  of  law,  in  certain  special  cases,  admit 
extrinsic  evidence  of  intention  to  make  certain  the  person  or  thing  intended,  where 
the  description  in  the  will  is  insufficient  for  the  purpose. 

"These  cases  maybe  thus  defined, — where  the  object  of  a  testator's  bounty,  or 
the  subject  of  disposition  (i.  e.,  the  person  or  thing  intended),  is  described  in  terms 
which  are  applicable  indifferently  to  more  than  one  person  or  thing,  evidence  is 
admissible  to  prove  which  of  the  persons  or  things  so  described  was  intended  by  the 
testator." 

1  Ld.  Abinger  in  Doe  ex  dem.  Hiacocks  v.  Hiscocks,  5  31.  ct  W.  363. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        131 

be  said  that  text  writers  of  high  authority1  declare  that  the  rules 
for  the  admission  and  exclusion  of  parol  evidence  in  regard  to 
wills  are  essentially  the  same  which  prevail  in  regard  to  contracts 
generally ;  and  it  may  be  further  urged  that  the  right  to  dispose 
by  will  is  of  great  importance ; 2  that  it  is  commonly  exercised 
under  circumstances  unfavorable  to  formality  and  exact  expres- 
sion ;  and  that  the  court  ought  to  have  every  aid  that  the  Con- 
duct and  declarations  of  the  testator  can  give,  to  guide  in  ascer- 
taining his  intention. 

84.  Reasons  for  its  strict  exclusion^ — On  the  other  hand,  it 
is  to  be  considered  that  the  rules  allowing  parol  evidence  in  aid 
of  the  interpretation  of  contracts  are  not  fully  applicable  to  wills, 
for  they  rest  on  several  reasons  that  are  foreign  to  these  instru- 
ments. 1.  A  will  is  not  a  transaction  between  parties,  but  a  silent 
and  private  act ;  and  the  principle  of  good  faith  which  may  bind 
a  contracting  party  by  what  passed  in  conversation,  does  not  jus- 
tify disposing  of  the  rights  of  heirs  and  next  of  kin  by  what  may 
have  fallen  from  their  ancestor.  2.  Nor  is  a  will  a  grant  or  effect- 
ive act  during  the  testator's  life,  but  a  revocable  expression  of  in- 
tention, made  frequently  under  circumstances  likely  to  involve 
secrecy,  if  not  fickleness  and  change ;  and  the  law  does  not  bind 
a  man  by  his  expressions  of  intention,  much  less  by  his  oral  dec- 
larations that  he  has  expressed  certain  intentions  in  a  revocable 
writing.3  3.  It  is  a  matter  of  common  observation  that  testators 
are  instinctively  disposed  to  shroud  their  testamentary  acts  in 
secrecy,  and  disguise  their  intentions,  and  to  baffle  with  equivoca- 
tion or  misrepresentation  the  importunities  of  the  expectant  and 
the  inquisitiveness  of  the  curious.  The  law  regards  this  conceal- 
ment as  a  right  of  the  testator;  and  even  positive  deceit  by  him, 
however  questionable  morally,  is  not  a  legal  wrong  unless  fraud 
is  accomplished  by  it.4  Therefore  the  testator's  representations 
as  to  what  lie  has  or  has  not  done,  much  more  those  as  to  what 
he  intends,  fail  to  afford  any  substantial  presumption  as  to  the 
testamentary  act.  4.  Besides  this  absence  of  reasons  for  admit- 
ting extrinsic  evidence  so  freely  as  in  cases  of  contracts,  the  ob- 
jections to  hearsay  evidence  apply  in  the  strongest  manner  in 
many  cases ;  and  the  fact  that  the  controversy  in  which  such  evi- 
dence is  offered  usually  arises  between  those  who  stood  in  very 
unequal  degrees  of  personal  intimacy  with  the  testator,  and  that 
his  own  lips  are  sealed  by  death,  render  the  resort  to  such  evi- 
dence peculiarly  liable  to  abuse,  which  it  is  the  object  of  the  statute 
to  avoid  by  requiring  every  testamentary  act  to  be  expressed  in  a 

1  Redf.  on  W.  496 ;  1  Greenl.  Ev.  §  287.  As  a  practical  puide,  this  maxim  would 
be  very  misleading.  It  would  be  less  inexact  to  compare  wills  to  statutes. 

9  Sec  Maine's  Anc.  Law,  194. 

1  If  tlie  testator  bound  himself  by  a  promise,  it  is  to  be  enforced,  if  at  all,  as  a 
contract.  Ridley  v.  Ridley,  11  Jur.  N.  S.  475;  and  see  60  Jf.  Y.  83;  McGuire  v. 
Jlcr.uire,  11  Bush,  (Ky.)  142. 

4  Bee  SStickland  v.  Aldridge,  9  Ves.  616. 


132  ACTIONS  BY  AND  AGAINST 

written  and  authenticated  will.  Such  considerations  as  these 
have  led  the  courts  in  recent  years  to  restrict  the  admission  of 
extrinsic  evidence  within  the  limits  I  shall  now  endeavor  to 
indicate.1 

85.  Exceptional  rule  as  to  evidence  in  Rebuttal^ — The  con- 
siderations to  which  I  have  adverted,  however,  it  will  be  seen  do 
not  militate  against  evidence  impeaching  or  disproving  the  valid- 
ity of  the  testamentary  act ;  nor,  on  the  other  nand,  against  evi- 
dence tending  to  show  that  the  intention  was  really  just  what  is 
expressed  on  the  face  of  the  will ;  and  hence,  in  this  class  of 
cases,  there  is  peculiar  practical  importance  in  the  principle  of 
evidence,  that  when  one  party  may  and  does  attempt  to  prove  a 
fact,  the  other  party  thereby  acquires  a  right  to  adduce  evidence 
to  the  contrary.     It  will  be  seen  that  the  method  of  attack  some- 
times enlarges  the  scope  of  the  defense,  and  admits  evidence  that 
the  rule  would  exclude  if  offered  in  the  first  instance.2 

86.  Extrinsic  aid  in  Reading?^ — Whatever  is  necessary  to 
possess  the  court  with  an  understanding  of  the  language  or  char- 
acters in  which  the  will  is  written,  may  be  supplied  by  extrinsic 
evidence  ; 8  and  it  will  readily  be  seen  that  the  principle  is  the 
same,  whether  the  difficulty  in  reading  the  will  arises  from  the 
fact  that  it  was  written  in  a  foreign  language,  or  a  peculiar  dia- 
lect, or  from  the  fact  that  the  testator  habitually  used  words  of 
the  common  language  in  a  peculiar  way,  or  used  characters  and 
hieroglyphics  instead  of  the  common  notation  of  language.     But 
the  competency  of  the  evidence  consists  not  in  its  showing  what 
testator  intended  in  this  particular  case,4  but  in  showing  what  his 
habitual  speech  and  notation  were,  leaving  the  court,  in  the  light 
of  this  fact,  to  read  the  will  and  ascertain  thence  what  his  inten- 
tion was.5    Accordingly,  if  a  will  is  written  in  a  foreign  language 
or  in  short-hand  or  cipher,  it  may  be  translated  by  competent 
evidence  ; 6  if  it  contains  terms  which  the  writer  habitually  used 
in  a  peculiar  sense,  that  habit  can  be  shown ; 7  if  it  contains  terms 

1  Earlier  cases,  and  not  a  few  later  ones  founded  on  earlier  rulings,  admit  such 
evidence  more  freely,  and  it  will  not  be  difficult  to  find  cases  to  the  contrary  of  some 
of  the  propositions  stated  in  the  text  in  this  connection,  but  I  confine  myself  to  a 
statement  of  the  rule,  and  a  selection  of  cases  illustrating  it,  as  now  administered  in 
the  courts  of  highest  authority. 

2  Where  one  party  proved  the  nature  of  a  transaction  with  the  testator  to  affect 
the  construction  or  application  of  the  will, — Held,  that  the  other  might  give  testator's 
declarations  t*o  the  contrary,  in  evidence,  by  way  of  contradiction.     DENIO,  J.,  Til- 
lotson  v.  Race,  22  N.  Y.  127. 

3  See  Wigram's  4th  proposition  above,  p.  130,  note. 

4  Id. 

1  Hence  neither  the  testator's  declarations  of  what  he  meant,  nor  the  testimony 
of  the  draftsman  as  to  the  meaning  of  the  clause,  is  competent  (1  Redf.  on  W.  635 
P  50,  and  cases  cited) ;  nor  is  a  letter  to  the  testator  from  his  solicitor  (Wilson  v. 
6'Leary,  L.  R.  7  Ch.  App.  448,  s.  c.  2  Moak's  Eng.  842.) 

8  Clayton  v.  Ld.  Nugent,  13  Mees.  &  W.  iiOO. 

7  Per  BRADFCKD,  J.,  Hart  v.  Marks,  4  Bradf.  163 ;  Doe  ex  dent  Hiscocka  v.  Hiscocks, 
6  Mees.  <fe  W.  36a. 


HEIRS  AND  NEXT  OF  KIN.  DEVISEES  AND  LEGATEES.        133 

with  which,  as  a  member  of  a  particular  trade  or  calling,  he  was 
familiar,  or  language  which  has  a  provincial  or  local  meaning,1 
persons  acquainted  with  the  meaning  of  the  words  may  be  re- 
ceived as  witnesses  to  translate  or  define  them.  If  he  was  accus- 
tomed to  designate  a  person  by  a  short  name,  such  as  the  surname 
alone,3  or  the  baptismal  name  alone,8  or  a  pet  name ; 4  or  habitually 
to  misname  the  person  through  confusing  several  names,5  or  to 
use  abbreviations  or  a  cipher, — as,  for  instance,  a  private  price 
mark  for  goods  in  his  business,6 — and  such  names  or  characters 
appear  in  his  will,  they  may  be  explained  by  evidence  of  his 
usage.  But  extrinsic  evidence  of  what  testator  intended  by 
using  initials  or  ciphers  in  a  bequest,  as  distinguished  from  evi- 
dence of  what  it  was  his  common  habit  of  speech  or  writing  to 
use  them  for,  is  not  admissible.7  Another  important,  but  not 
very  well  defined  qualification  of  this  rule  exists  in  respect  to  those 
technical  legal  words  to  which  the  law  fixes  a  definite  legal  mean- 
ing, such  as  "  next  of  kin."  Such  meaning  cannot  be  varied  by 
parol.  And  a  contradiction  in  terms  of  legally  settled  import 
appearing  on  the  face  of  the  will,  must  be  settled  by  rules  of  in- 
terpretation, without  resort  to  extrinsic  evidence.8 

87.  Alterations.'] — "When  the  question  is  not  foreclosed  by  a 
conclusive  probate,9  extrinsic  evidence  is  competent  within  cer- 
tain limits,  and  sometimes  necessary,  to  explain  alterations  in  the 
original  will.  Unattested  alterations  in  a  will  are  not,  as  in  case 
of  a  deed  presumed  to  have  been  made  before  execution.10  It  has 
been  usually  said  that  in  the  absence  of  evidence  there  is  a  pre- 
sumption that  an  unattested  alteration  appearing  in  a  will  was 
made  after  its  execution.11  It  more  accurately  represents  the 
present  practice  to  say  that  the  burden  is  upon  him  who  asserts 
the  alteration  to  be  valid,  to  give  some  evidence  from  which  it 


1  Ryerss  v.  "Wheeler,  22  Wend.  152,  and  cases  cited. 
8  Clayton  v.  Ld.  Nugent,  13  Mees.  <fe  W.  200,  207. 

8  \Vigr.  by  O'Hara,  139. 

4  1  Redf.  on  W.  630. 

5  Lee  v.  Pain,  4  Hare,  251,  approved  in  Jannan,  3d  ed.  vol.  1,  392,  but  questioned 
by  Redfield,  1  Redf.  on  W.  632. 

6  Vii-11  v.  Charmer,  23  Beav.  195. 

7  The  distinction  is  well  exhibited  thus :  A  bequest  to  Lady ,  is  void,  and 

the  blank  cannot  be  supplied  by  extrinsic  evidence  (Hunt  v.  Hort,  3  Bro.  C.  C.  811). 

But  a  bequest  to Page  may  be  sustained  in  favor  of  a  person  of  that  name  on 

evidence  that  testator  was  accustomed  to  call  him  "  Page  "  (Price  v.  Page,  4  Yes.  679, 
and  see  Miller  v.  Travers,  8  Bing.  244,  and  cases  cited).    Thus  where  the  beneficiaries 
were  only  indicated  by  initials  and  blanks,  and  there  was  pasted  into  the  will  at  time 
of  attestation  a  slip  referring  to  a  card  in  his  desk,  as  constituting  a  key  to  the  sig- 
nificance of  the  initials,  and  the  only  card  found  was  dated  lonsf  after  the  will,  and 
not  proven  to  be  a  copy,  but  proven  to  have  a  general  resemblance  to  a  card  seen 
lying  with  the  will, — Hell,  that  the  key  was  not  admissible  and  the  bequests  were 
void  (Clayton  v.  Ld.  Nugent,  13  Mees.  <fe  W.  200). 

*  Wcutherhead  v.  Baskorville,  11  How.  U.  S.  329. 

9  See  paragraph  60. 

10  1  Redf.  on  W.  314-316  (23). 

11  Rose.  N.  P.  160 ;  2  Whart  Ev.  §  897 ;  Stepb,  Dig.  Ev.  art.  89. 


134  ACTIONS  BY  AND  AGAINST 

may  be  inferred  that  it  was  made  before  execution,1  unless  it  may 
be  inferred  that  such  was  the  case  from  the  face  of  the  docu- 
ment.2 The  time  when  the  alterations  were  made  may  be  shown 
by  proving  the  declarations  of  the  testator,  whether  uttered  at 
the  execution  of  the  will,  or  before  it,  even  by  way  of  expression 
of  an  intention  which  would  be  defeated  by  disregarding  the  al- 
teration.8 The  testimony  of  a  subscribing,4  or  other  eye  witness, 
is  of  course  competent ;  and  so  is  the  opinion  of  an  expert.5  The 
testimony  of  an  eye  witness  is  of  more  weight  than  that  of  ex- 
perts.6 In  the  absence  of  other  evidence  as  to  when  the  altera- 
tions were  made,  the  fact  that  dates  prior  to  that  of  the  will 
were  affixed  to  some  of  them  by  the  testator  is  not  sufficient  to 
show  that  they  were  made  before  execution.7  Alterations  may  be 
effectual  although  made  only  in  pencil.8  But  where  there  are  both 
pencil  and  ink  interlineations,  and  some  of  the  penciled  words 
are  under  the  words  in  ink,  but  extend  beyond  them,  with  addi- 
tional provisions,  the  inference  may  be  drawn  that  as  the  ink 
superseded  some,  it  was  intended  to  supersede  all  of  the  penciled 
words,  and  that  the  latter  were  merely  deliberative.9  Where  a 
testator  has  entirely  erased  the  name  of  a  legatee,  and  substituted 
another  name  in  its  place,  with  intent  to  revoke  only  by  substi- 
tution, evidence  will  be  received  to  show  what  the  original  name 
was.10 

88.  Mi  stakes. ~\ — The  court  may  correct  obvious  clerical  mis- 
takes appearing  on  the  face  of  the  will ; u  but  the  only  case  in 


1  Goods  of  Sykes,  L.  R.  3  P.  &  T>.  26,  8.  c.  5  Moak's  Eng.  R.  621,  and  cases  cited. 

8  As,  for  instance,  where  an  interlineation  consists  of  words  necessary  to  complete 
the  sense,  and  apparently  written  at  the  same  time  and  with  the  same  ink.  Goods 
of  Cadge,  L.  R.  1  P.  <fe  M.  543.  Another  instance  is  the  correction  of  an  absurdity. 
If  the  question  arises  on  the  face  of  the  paper  alone,  the  question  is  usually  for  the 
jury.  See  Van  Buren  v.  Cockburn,  14  Barb.  118. 

3  Goods  of  Sykes  (above);  1  Wms.  Exrs.  6  Am.  ed.  411;  Dench  v.  Dench,  25 
Weekly  R.  414.     Compare  2  Whart.  Ev.  252,  §  1008. 

4  Charles  v.  Huber,  78  Pa.  St.  448. 

6  Re  Hindmarch,  1  L.  R.  Prob.  307,  s.  p.  Dubois  v.  Baker,  30  N.  T.  355,  affi'g  40 
Barb.  556.  Compare  Sackett  v.  Spencer.  29  Barb.  180. 

6  Testimony  of  one  who  drew  a  will  and  saw  it  executed,  that  it  has  not  been  al- 
tered, outweighs  testimony  of  many  who  speak  only  from  an  inspection  of  the  paper, 
as  produced.  Malin  v.  Malin,  1  Wend.  625. 

1  Goods  of  Adamson,  L.  R.  3  Prob.  <fe  Div.  253,  s.  c.  14  Moak's  Eng.  704.  The  pre- 
sumption that  sheets  bound  together  and  constituting  a  will,  as  found  in  the  testator's 
desk,  were  so  bound  together  at  the  time  of  the  execution,  is  not  necessarily  rebutted 
by  the  fact  that  the  numbering  shows  that  one  of  the  original  sheets  had  been  re- 
moved and  another  of  them  transposed  into  its  place.  Rees  v.  Rees,  L.  R.  3  P.  &  D. 
84,  s.  o.  6  Moak's  Eng.  365. 

8  Matter  of  Tonnelle,  5  N.  Y.  Leg.  Obs  254;  but  see  12  Barb.  595. 

9  Goods  of  Adams,  2  Moak's  Eng.  R,  151. 

10  Goods  of  McCabe,  L.  R.  3  P.  <$c  D.  94,  s.  c.  6  Moak's  Eng.  372  and  cases  cited. 

11  Thus  "  and"  may  be  read  "  or,"  and  conversely.     Jackson  v.  Blanshan,  1 1  Johns. 
54,  and  other  cases  in  2  Abb.  N.  Y.  Dig.  (2ded.)  669;  6  Id.  178,  181.     "May  leave," 
may  be  read  "may  have."     Dubois  v.  Ray,  35  N.  Y.  162,  8.  P.  in  L.  R.  16  Eq.  239, 
"Reviving,"  may  be  read  "surviving."     Pond  v.  Bergh,  10  Paige,  140.     "Prepara- 
tory meeting,"  in  the  designation  of  the  donee,  may  be  read  "  preparatux?  meeting," 
that  being  in  the  true  name  of  the  only  claimant.    Dexter  v.  Gardner,  7  Allen,  245. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        135 

•which  extrinsic  evidence  is  clearly  admissible  to  correct  an  error 
by  substituting  something  necessary  to  be  inserted,  is  in  respect 
to  an  error  of  the  date.1 

89.  Extrinsic  aid  in  Testing  validity^] — In  practice,  all  the 
questions  involved  in  the  validity  of  the  instrument  are  usually 
tested  upon  probate,  as  we  have  seen.  It  will  suffice  here  to  observe 
that  when  the  question  of  validity  is  not  concluded  by  the  pro- 
bate, the  same  evidence  is  competent  as  would  be  in  a  proceeding 
for  probate ;  and  also  that  when  the  instrument  as  a  \vhole  is  not 
impeached,  it  is  still  competent  to  show  that  a  particular  part  of 
it  was  not  the  testator's  will ;  as,  for  instance,  that  a  clause  was  in- 
terlined by  another  hand  without  authority,2  or  that  a  particular 
part  was  inserted  through  undue  influence,3  or  that  a  sheet  was 
not  in  the  will  at  the  time  of  its  execution.4  But  due  execution 
is  presumptive  evidence  that  the  testator  knew  the  contents  of  the 
will,  and  that  it  conforms  to  his  intentions  ; 5  and  it  is  not  competent 
to  show  that  he  acted  under  a  mistake  or  forgetfulness  of  fact  as 
to  persons  or  property,  for  the  purpose  of  inferring  that  lie  would 
not  have  intended  a  certain  express  gift  if  he  had  been  rightly  in- 
formed.6 Nor  can  it  be  shown  that  he  gave  different  instructions 
as  to  the  clause  to  be  inserted,  and  executed  the  instrument  in  ig- 
norance of  the  draftsman's  mistake.7  And  even  if  it  be  admis- 
sible to  show  that  he  intended  a  clause  not  to  take  effect  except 
in  a  certain  contingency,8  this  cannot  be  done  by  proving  that  he 
gave  instructions  to  have  it  drawn  in  one  way,  and  that  it  was 
drawn  and  executed  in  another.9  Unless  words  have  been  in- 
serted in  a  will  by  fraud  or  mistake,  without  the  testator's  knowl- 


1  Goods  of  Thomson,  L.  R.  1  Pr.  &  M,  8;  Reffell  v.  Reffell,  Tel.  139.  Where  the 
attorney,  drawing  the  codicil,  intended  to  conclude  the  codicil  with  a  paragraph,  "  in 
all  other  respects,  I  confirm  my  said  will,"  but  by  mistake  wrote  "revoke"  instead 
of  "  coi  firm,"  and  in  this  State,  the  codicil  was  executed, — it  was  held  that  parol  evi- 
dence could  not  be  received  to  correct  the  mistake.  In  re  Davy,  5  Jur.  N.  S.  252,  s.  c. 
1  Sw.  &  Tr.  262;  1  Keclf.  on  W.  69'2,  §  25.  On  the  contrary,  where  the  fourth  cod- 
icil revoke  the  three  previous  codicil*,  and  a  fifth  codicil  purported  to  confirm  the 
four  couicils, — Held,  that  extrinsic  evidence  was  admissible  to  show  that  four  meant 
fourth.  Goods  of  Thomson,  L.  R.  1  Pr.  <fe  M.  8.  See  Hart  v.  Tulk,  2  De  Gex,  M.  & 
G.  800,  where,  on  exlrinsic  evidence  of  the  situation  of  the  family  and  property,  the 
court,  in  order  to  set  right  what  appenred  to  them  to  be  an  obvious  clerical  error, 
held  that  the  words  "fourth  schedule"  iu  a  will  should  be  read  as  if  they  were  "  fifth 
schedule." 

•  Doe  v.  Palmer,  16  Q.  B.  Ad.  &  E.  747 ;  Charles  v.  Huber,  78  Pa.  St.  448. 

8  Ld.  Trimlestown  v.  D"  Alton,  1  Dow.  &  Cl.  85;  Florey  v.  Florey,  24  Ala.  241. 
4  See  Miller  v.  Travers,  8  Bing.  244. 

*  1  Kedf.  on  Wills,  3d  ed.  536,  §  57.    The  fact  that  a  capable  testator  read  or 
heard  read  the  provision  before  attesting  it,  cannot  bo  countervailed  by  the  testi- 
mony of  the  scrivener  that  he  inserted  it  by  inadvertence,  and  without  instructions. 
Guardnouje  v.  Blackburn,  L.  R.  1  P.  &  M.  109. 

6  Jackson  v.  Sill,  11  Johns.  201.     See  Gifford  v.  Dyer,  2  R.  I.  99;  Allgood  v. 
Blake,  L.  R.  8  Eq.  160.     Compare  Crossthwaite  v.  Dean,  6  Id.  245. 
1  I  Redf.  on  W.  604,  n.,  2  Whart.  Ev.  240,  t$  995. 

8  Lister  v.  Smith,  3  Sw.  <fe  Tr.  282. 

9  Ordway  v.  Dow,  55  N.  H.  12. 


130  ACTIONS  BY  AND  AGAINST 

edge,  the  court  cannot  correct  the  error  either  by  omission  or  in- 
sertion of  words.1 

90.  Rebutting  evidence.'] — But  wherever  extrinsic  evidence  is 
admitted  to  negative  the  genuineness  of  the  testamentary  act,  ex- 
trinsic evidence  is  admissible  to  affirm  it ;  and  for  this  purpose 
even  the  testator's  declarations  of  intention  may  be  received. 
They  are  not  in  this  case  adduced  to  eke  out  a  testamentary  act 
insufficient  under  the  statute  ;  but  merely  to  show  that  the  suf- 
ficient expression  of  intention  contained  in  the  will  was  genuine. 

91.  Extrinsic  aid  in  Applying.'] — It  is  a  familiar  rule  that,  in 
order  to  understand  the  intention  of  the  testator,  for  purposes  of 
construction,  we  must  advert  to  his  situation  at  the  time  of  mak- 
ing the  will,  and  consider  such  circumstances  as  the  number  of 
his  family,  the  different  kinds  of  property  which  he  had,  &c. ; a 
and  a  general  and  pervading  obscurity  in  a  will  drawn  by  an  il- 
literate person,  is  justly  regarded  as  strengthening  the  reason  for 
receiving  extrinsic  evidence  of  the  circumstances  of  the  testator 
and  his  family,  and  the  claims  on  him  of  a  legatee  whose  gift  is 
ambiguous.3 

The  principles  which  regulate  the  competency  of  extrinsic 
evidence  for  this  purpose,  are  the  same  whether  the  question  re- 
lates to  the  subject  or  to  the  object  of  the  gift ;  and  the  decisions 
under  either  class  of  cases  are  applicable  to  the  other.4  But  for 
greater  practical  convenience  the  competency  of  evidence  to  iden- 
tify the  object  of  the  gift,  that  is  to  say  the  beneficiary,  will  first 
be  explained. 

92.  —  in  identifying  the  Person.'] — It  is  not  essential  that  a 
legatee  or  devisee  be  named  /  a  reference  by  which  he  may  be 
ascertained  when  the  time  comes  is  enough ;  and  then  extrinsic 
evidence  is  competent  to  identify  him.5    If  the  whole  designation 
used  in  the  will  to  indicate  the  person,  whether  of  a  beneficiary 
or  an  executor,  applies  with  exactness  to  one  claimant,  extrinsic 
evidence,  no  matter  how  persuasive,  is  not  admissible  for  the  pur- 
pose of  showing  that  some  other  one,  to  whom  it  does  not  accu- 
rately apply,  was  the  person  intended.6    And  if  a  beneficiary  is 


1  Wallize  v.  TTallize,  55  Pa.  St.  242.     So  held  in  a  Court  of  Probate.     Harter  T. 
Barter,  L.  R.  3  P.  &  I).  11,  8.  c.  5  Moak's  Eng.  608. 

2  Doe  v.  ProYOOst,  4  Johns.  61  ;  Slmlters  v.  Johnson,  38  Barb.  80. 

8  Terpening  v-  Skinner,  30  Barb.  373.     See  a  further  decision  in  29  N.  Y.  505  ; 
Doe  v.  Provoost,  4  Johns.  61. 

4  American  Bible  Society  v.  Pratt,  9  Allen,  11,  and  cases  cited. 

5  Holmes  v.  Mead,  52  N.  Y.  332. 

6  Tucker  v.  Seaman's  Aid  Soc.  7  Mete.   188 ;  1  Redf.  on  W.  613,  §  41.     Thus 
where  the  executor  named  was  but  twelve  years  old,  the  court  refused  to  receive  pa- 
rol  evidence  that  testator  intended  to  name  the  lad's  father,  whose  name  was,  with 
the  exception  of  a  part  of  the  middle  name,  identical  with  the  son's.     Goods  of  Peel, 
L.  E.  2  Pr.  &  M.  46. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        137 

once  adequately  and  accurately  named  or  described  in  the  will, 
this  is  conclusive ;  and  if  the  same  name  is  mentioned  a  second 
time  in  the  same  instrument  without  any  description  other  than 
"  said,"  extrinsic  evidence  is  not  admissible  to  show  that  a  differ- 
ent person  was  intended  the  second  time.1  Where  the  second 
reference  is  not  thus  identified,  but  is  so  expressed  that  it  may  be 
referred  to  either  of  two  persons  previously  named,  extrinsic 
evidence  is  admissible  to  remove  the  ambiguity,  and  for  this  pur- 
pose the  testator's  declarations  are  competent.2 

93.  —  in  case  of  names  of  relationship.'] — Prima  facie  the 
word  "  children "  means  legitimate  children.3  There  must  be 
clear  evidence  to  establish  another  application  of  the  word.4 
Hence,  under  a  bequest  to  testator's  "  children,"  "  nephews,"  &c., 
without  anything  on  the  face  of  the  will  to  show  a  different  in- 
tent,5 none  but  the  testator's  own  and  legitimate  children  or 
nephews  can  take,  if  such  there  are.  But  extrinsic  evidence  is 
admissible  to  show  that  there  are  none  such,  and  that  he  was 
never  married,  but  left  illegitimate  offspring,  and  that  he  recog- 
nized them  as  his  children.6  So,  also,  of  illegitimate  nephews. 
In  like  manner  evidence  is  admissible  that  the  only  nephews  and 
nieces  in  the  family  were  those  of  testator's  wife.7  Where  the 
words  of  relationship  such  as  "  children,"  *'  cousin,"  <fcc.,  are  used 
with  nothing  in  the  will,  read  in  the  light  of  surrounding  circum- 
stances, to  show  that  a  broader  meaning  is  intended 8  than  the  or- 
dinary meanings,  such  as  legitimate  sons  and  daughters,  first 
cousin,  (fee.,  independent  extrinsic  evidence,  having  no  connection 
with  the  words  of  the  will,  cannot  be  received  to  enlarge  the  im- 
port. 


1  Webber  v.  Corbett,  L.  R.  16  Eq.  515,  s.  c.  6  Moak's  Eng.  841.  Thus,  where  tes- 
tator in  one  clause  gave  the  personal  property  on  his  farm  to  "  William,  Samuel, 
Benjamin  and  James;  in  another  clause  gave  the  farm  to  Samuel,  William  and 
James"  (not  naming  Benjamin),  and  in  the  next  clause  gave  other  lands  "  to  the  said 
last  named  Samuel,  William,  Benjamin  and  James," — Hdd,  that  the  ambiguity,  if  any, 
was  patent,  and  could  not  be  aided  by  parol  evidence  of  testator's  declarations  of  in- 
tention to  give  a  share  of  his  farm  to  Benjnmln,  and  his  instructions  to  the  draftsman 
to  include  him.  Hyatt  v.  Pugsley,  23  Barb.  285. 

1  Doe  v.  Needs,  2  M.  <fe  W.  129  ;  Doe  v.  Morgan,  1  C.  &  M.  235. 

3  Cromer  v.  Pinckney,  3  Barb.  Ch.  466. 

4  Hill  v.  Crook,  R.  R,  6  H.  of  L.  265,  s.  o.  7  Moak's  Eng.  1. 
8  Brower  v.  Bowers,  1  Abb.  Ct.  App.  Dec.  214. 

6  Gardner  v.  Heyer,  2  Paige,  11  ;  Laker  v.  Hordern,  L.  R.  1  Ch.  Div.  644,  a.  o. 
16  Moak's  Eng.  672 ;  34  L.  T.  N.  S.  (Ch.  D.)  88.     Compare  Lepine  v.  Bean,  L.  R.  10 
Eq.  170. 

7  Sherratt  v.  Mountford,  L.  R.  8  Ch.  App.  928,  8.  c.  7  Moak's  Eng.  479.     In  such 
case  evidence  of  his  ill-feeling  toward  them,  or  other  circumstances  rendering  it  im- 
probable that  he  intended  them,  was  held  not  admissible.     Id.     If  the  bequest  to 
children  refers  to  those  of  another  than  testator,  there  must  be  evidence  that  ho 
knew  there  were  illegitimate  children  and  none  other,  and  that  they,  in  their  reputed 
character,  would  answer  the  description,  in  order  to  enable  them  to  take.     In  re  Her- 
bert, 6  Jur.  N.  S.  1027  ;  and  see  1  Sm.  v.  Giff,  126. 

*  Redf.  on  W.  658 ;  Brower  v.  Bowers,  1  Abb.  Ct.  App.  Dec.  214. 


138  ACTIOX3  BY   AKD  AGAINST 

94.  —  in  case  of  Corporate  Designation.'] — It  is  not  essential 
tliat  a  corporation  oe  designated  by  its  legal  corporate  name.     It 
may  be  designated  by  the  name  by  which  it  is  usually  or  popu- 
larly called  or  known,  or  by  a  name  by  which  it  was  known  and 
called  by  the  testator,  or  by  any  name  or  description  by  which  it 
can  be  distinguished  from  every  other  corporation  ;  and  when 
an  other  than  the  corporate  name  is  used,  the  circumstances  to 
enable  the  court  to  apply  the  name  or  description  to  a  particular 
corporation,  and  identify  it  as  the  body  intended,  and  to  distin- 
guish it  from  all  others  and  bring  it  within  the  terms  of  the  will 
may,  in  all  cases,  be  proved  by  parol.1 

95.  —  applying  Erroneous  designation.'] — If  it  be  once  shown 
by  extrinsic  evidence  that  there  is  no  person  in  existence  who  ex- 
actly and  fully  corresponds  with  the  designation  or  description 
usea  in  the  will  to  indicate  the  donee,  extrinsic  evidence  is  then 
admissible  to  ascertain  to  whom  the  designation  points,2  and  for 
this  purpose  it  is  competent  to  adduce  evidence  of  the  circum- 
stances and  habits  of  the  testator,  and  the  state  of  his  family  at 
the  time  he  made  the  will,  so  as  to  put  the  court  in  the  position 
of  the  testator,  in  order  to  ascertain  the  bearing  and  application 
of  the  language  which  he  has  used,  and  whether  there  exists  any 
person  to  whom  the  whole  description  given  in  the  will  can  be 
with  sufficient  certainty  applied.8 

9G.  —  rejecting  False  Words.~] — Where  a  designation  other- 
wise correct,  contains  words  which  are  false  or  inapplicable  to  the 


1  Lefevre  v.  Lefcvre,  59  N.  Y.  434,  rev'g  in  part  2  Supm.  Ct.  (T.  &  C.)330 ;  First 
Parish  in  Sutton  v.  Cole,  3  Pick.  237,  and  cases  cited. 

2  Hart  T.  Marks,  4  Bradf.  161. 

8  Charter  v.  Charter,  L.  R.  7  H.  of  L.  364,  s.  c.  12  Moak's  Eng.  R.  1,  affi'g  1 
Moak's  Eng.  249  ;  Thomas  v.  Stevens,  4  Johns.  Ch.  607.  Thus,  by  the  aid  of  parol 
evidence,  the  American  Bible  Society,  the  American  Tract  Society,  the  General 
Synod  of  the  Reformed  Protestant  Church,  the  New  York  State  Colonization  So- 
ciety, and  the  American  Seaman's  Friend  Society,  respective1.}'  were  allowe  I  to  take 
bequests  of  a  residue  expressed  thus,  to  the  treasurers  of  the  following  societies: 
"  Am.  Bible,  Tract,  Synods,  Board  of  Missions,  Domestic  Missions,  N.  Y.  Coloniza- 
tion, and  Seaman's  Friend."  Hornebeck  v.  American  Bible  Society,  2  Sandf.  Ch. 
133.  The  "  Boston  Asylum  and  Farm  School  for  Indigent  Boys,"  was  enabled  to 
take  a  bequest  expressed  to  be  to  the  "  Boys'  Asylum  and  Farm  School,"  there  being 
no  other  claimant.  Mtnot  v.  Boston  Asylum,  7  Mete.  416.  So  the  First  Congrega- 
tional Society  in  A.  may  take  a  bequest  to  "  The  Congregational  Society  of  A.,"  it 
appearing  that  at  the  date  of  the  execution  of  the  will  there  was  no  other  such  So- 
ciety in  A.,  and  there  being  no  other  claimant.  Howard  v.  Am.  Peace  Soc.  49  Me. 
297.  So  the  "  Preachers'  Aid  Society  of  the  Maine  Conference  of  the  Methodist  Epis- 
copal Church,"  may  take  a  bequest  to  "the  Maine  Methodist  Conference  Ministers' 
Aid  Society,"  if  the  circumstances  indicate  that  this  and  no  other  Society  was  in- 
tended, there  being  no  other  claimant  Preachers'  Aid  Soc.  45  Me.  552.  The  testa- 
tor who  lived  in  C.,  made  bequests  "  to  the  Presbyterian  Church  in  C.,"  "  to  the 
Methodist  Church  in  C.,"  and  "  to  the  Baptist  Church,"  not  adding  in  C. :  field,  that 
the  former  gifts  were  sufficient,  there  being  one  of  each  such  churches  in  C.,  but  in 
the  absence  of  anything  to  identify  the  Baptist  Church  with  that  in  C.,  the  latter  was 
void  for  uncertainty.  Lefevre  v.  Lefevre,  2  Supm.  Ct.  (T.  &  C.)  341.  In  this  case 
no  evidence  whatever  was  given  on  the  trial  as  tj  the  usage  of  the  testator,  in  speak- 
ing of  the  Baptist  Church  or  Society. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.      139 

claimant,  the  false  or  inapplicable  part  may  be  rejected,  if  enough 
remain,  in  the  light  of  competent  extrinsic  evidence,  to  identify 
the  donee.  The  origin  of  the  rule  seems  to  have  been  in  reject- 
ing a  false  description  added  to  a  correct  name,  but  the  rule  is 
not  confined  to  this  class  of  errors.  It  is  not  the  rule  that  the 
name  controls  the  description,  in  the  absence  of  evidence.1  The 
name  may  be  rejected  as  false,  leaving  the  description  to  control.2 
Upon  the  same  principle  evidence  is  competent  that  the  testator 
was  accustomed  to  call  a  person  by  the  name  used  in  his  will, 
which  is  not  the  true  name,3  or  even  by  a  name  which  the  scrive- 
ner mistook  by  similarity  of  sound  for  that  written  in  the  will, 
and  to  which  no  other  person  answers.4  Evidence  of  other  acts  of 
beneficence  shown  to  the  claimant  by  the  testator  while  living  is 
competent ; 5  so  is  evidence  of  a  bequest  to  him  in  a  prio/  will  of 
the  same  testator,6  and  evidence  of  a  general  belief  in  the  family  7 
that  the  testator  was  his  godfather.8  Where  one  person  answers 
to  the  name  only,  and  another  to  the  description  only,  without 
anything  in  the  will  toMecide  the  question,  there  must  be  compe- 
tent extrinsic  evidence  supporting  the  application  to  one  in  pref- 
erence to  the  other,  or  the  bequest  will  be  void  for  uncertainty. 

97.  —  adverse  claimants.'] — We  have  thus  far  boen  consider- 
ing chiefly  cases  where  there  is  but  one  claimant,  the  question 
being  whether  that  claimant  shall  take,  or  the  gift  fail  for  uncer- 
tainty. Where  the  only  claimant  is  a  natural  person,  designated 
inexactly  or  incompletely  by  name,  it  is  incumbent  on  him  to 
give  some  evidence  tending  to  show  that  no  other  person  of  the 
name  is  entitled ;  but  where  the  only  claimant  is  a  corporate 


1  Drake  v.  Drake,  8  IIo.  of  L.  Cas.  178.  In  this  case  the  draftsman's  testimony 
lo  his  instructions,  was  excluded  as  incompetent.  Compare  Gillett  v.  Gane,  L.  R.  10 
Eq.  20;  Doe  T.  Roast,  11  Jur.  99;  Farrar  v.  St.  Catherine's  Coll.  L.  R.  16  Eq.  19; 
Nunn's  trusts,  L.  R.  19  Eq.  331 ,  Camoys  v.  Blundell,  1  H.  of  L.  Cas.  786. 

a  Thus,  in  a  bequest  to  "  my  brother  John,"  the  word  "  John  "  might  be  rejected 
on  proof  that  the  testator  had  but  one  brother,  James.  In  a  bequest  to  "  my  brother 
Cormac',''  described  elsewhere  in  the  will  as  the  father  of  testator's  nephew  Cormac, 
the  name  Cormac  was  rejected,  and  the  legacy  awarded  to  testator's  brother  James, 
the  father  of  the  nephew  Cormac,  on  proof  of  these  facts,  and  that  the  only  other 
brother  of  testator  was  dead,  and  so  believed  by  testator  to  be.  Connolly  v.  Parden, 
1  Paige,  291. 

8  Hart  v.  Marks,  4  Bradf.  161. 

4  Beaumont  v.  Fell,  2  P.  Wms.  141 ;  2  Phil,  on  Ev.  729,  n.  2.  If  there  were  a 
claimant  answering  the  mistaken  description  such  evidence  would  not  be  competent. 

4  Price  v.  Paige,  4  Ves.  679. 

*  In  re  Gregory,  11  Jur.  N.  S.  634. 

•Id 

8  Wagner's  Appeal,  43  Penn.  St.  102.  And  in  New  York  it  has  been  held  competent 
to  prove  testator's  declarations  at  the  time  of  executing  the  will,  and  adduce  the  tes- 
timony of  the  draftsman  to  his  instructions,  and  a  mistake  in  engros.-ing  which 
caused  the  inapplicability  of  the  description.  Exp.  Hornby,  2  Bradf.  42i>.  But  see 
Charter  v.  Charter,  above  cited,  where  it  was  held  that  evidence  of  the  declarations 
of  a  testator  as  to  whom  he  intended  to  benefit,  or  supposed  he  had  benefited.  <-:m 
only  be  received  where  the  description  of  the  legatee,  or  of  the  thing  bequeathed,  ia 
equally  applicable  iu  all  its  parts  to  two  persons,  or  to  two  things. 


140  ACTIONS  BY  AND  AGAINST. 

body,  not  precisely,  but  nearly,  answering  to  the  designation  in 
the  will,  it  cannot  be  assumed  without  some  proof  .that  there  is 
or  has  been  any  other  institution  bearing  a  name  or  description 
similar,1  unless  the  designation  is  matter  of  description,  by  words 
judicially  known  to  be  applicable  to  many  such  bodies.2  But  if 
the  question  is  which  of  two  adverse  claimants  are  entitled,  the 
rules  of  evidence  differ  materially.  Where  the  name  and  de- 
scription lead  to  a  reasonable  belief  that  they  apply  to  some  one 
person,  and  there  is  no  other  person  to  whom  they  can  with  any 
probability  apply,  then  slight  evidence  will  be  sumcient  to  prove 
that  that  person  was  intended  by  the  designation.  But  if,  with 
such  proof  in  favor  of  one,  there  is  similar  or  stronger  proof 
identifying  another,  then  the  claim  of  the  former,  though  such 
that,  if  it  stood  alone,  it  would  be  prima  facie  proved,  is  con- 
trolled by  the  claim  of  the  other,  who  is  more  precisely  identi- 
fied.3 In  the  case  of  adverse  claimants  of  the  same  gift,  the  fol- 
lowing rules  apply : 

1.  If  one  (being  competent  to  take)  alone  precisely  answers 
the  whole  designation  of  the  will,4  or  is  identified  by  the  con- 
text,5 extrinsic  evidence  that  the  other  was  intended  is  incom- 
petent. 

2.  If  both  precisely  answer  the  whole  designation  and  indi- 
cations of  the  will,  a  latent  ambiguity  or  "  equivocation  "  is  pre- 
sented, and  extrinsic  evidence  is  competent ;  and  in  this  class  of 
cases  direct  evidence  of  the  testator's  intention,  even  by  proving 
his  declarations  of  purpose,  is  admissible. 

3.  If  neither  precisely  answers  the  designation  and  indications 
of  the  will,  but  both  do  so  approximately,  this  is  also  a  case  of 
latent  ambiguity,  admitting  extrinsic  evidence ;  and  in  this  class 
of  cases,  too,  according  to  the  better  opinion,  the  testator's  dec- 
larations of  intent  may  be  proved. 

A  latent  ambiguity  is  made  out  within  these  rules,  not  only 
where  there  is  a  legal  name  which  fits  several,  but  equally  where 
there  is  a  description  only,6  or  a  name  used  in  common  parlance,7 


1  SHAW,  C.  J..  Minot  v.  Boston  Asylum,  <fec.  7  Me*c.  419. 

8  See  Le  Fevre  v.  Le  Fevre,  cited  in  note  3,  p.  138. 

8  SHAW,  C.  J.,  Minot  v.  Boston  Asylum,  <fec.,  7  Mete.  418,  s.  p.  Kilvert's  Trust,  L. 
R.  7  Ch.  170. 

*  Extrinsic  evidence  is  admissible  to  show  that  the  P.  E.  "  church  "  in  N.,  in  a  be- 
quest, means  the  incorporated  "  Society  "  of  that  name,  which  is  proven  to  be  usually 
and  popularly  called  the  church,  and  not  the  "  church"  strictly  so  called,  which  is 
unincorporated,  and  consists  of  the  communicants  united  in  connection  with  the  so- 
ciety. Ayres  v.  Weed,  16  Conn.  291.  But,  where  testator's  brother,  Mark  Ingle, 
had  died,  leaving  a  son  of  the  same  name,  who  was  abroad,  and  iu  fact  living,  but 
whom  testator  had  been  led  to  suppose,  shortly  before  making  tha  will,  wj»s  dead,  and 
testator  gave  a  share  to  the  children  "  of  my  late  nephew,  Mark  Ingte," — Held  that 
evidence  of  intention  to  give  to  his  late  brother  was  not  admissible.  lagle'a  Trusts, 
L.R.  11  Eq.  578. 

6  Per  McCoux,  V.  C.,  Smith  v.  Smith,  1  Edw.  191. 

6  Brewster  v.  McCall,  16  Conn.  292;  Button  v.  Am,  Tract  Soa  23  Vt.  S50. 

7  Ayres  v.  Weed,  16  Conn.  300. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.      141 

or  a  name  -which  fits  one  claimant  only,  coupled  with  a  descrip- 
tion which  fits  the  other  only,1  or  a  designation  which  without 
rejection  of  some  terms  is  false  in  application.2  But  in  applying 
these  rules,  the  principle  is  to  be  kept  in  mind  that  if  the  one 
claimant  is  designated  with  substantial  accuracy,  and  by  extrinsic 
evidence  it  appears  that  there  is  another  claimant  answering  less 
nearly  to  the  designation,  evidence  of  intention  is  not  competent.3 
But,  on  the  other  hand,  if  the  designation  is  substantially  imper- 
fect in  its  application  to  each,  the  court  is  not  bound  to  determine 
in  favor  of  the  one  that  most  nearly  answers  it,  but  extrinsic  evi- 
dence is  admissible.4 

98.  — circumstantial  evidence  of  intention,'] — For  the  pur- 
pose of  identifying  the  intended  donee,  it  is  competent  to  prove 
the  circumstances  of  his  relations  and  dealings  with  the  testator, 
and  the  testator's  habits  of  conduct  and  kindness  to  him.5    The 
fact  that  testator  was  intimately  acquainted  with  one,  and  but 
little  known  to  the  other,  of  two  who  are  equally  near  to  a  mis- 
taken designation,  sustains  a  presumption  of  fact,  that  he  intended 
the  former.6    So  of  the  fact  that  one  was  nearer  of  kin  to  him 
than  the  other.7 

99.  —  case  of  gifts  to  CharitiesJ] — To  identify  the  society 
which  the  designation  in  the  will  intends,  the  appropriate  evi- 
dence includes  such  facts  as  the  testator's  knowledge  or  ignorance 
of  the  society  in  question,8  his  visits  to  its  institution  or  field  of 
labor,  and  the  fact  that  he  conversed  about  it  before  making  his 
will,9  the  facts  that  he  expressed  a  strong  interest  in  it  in  con- 


1  Drake  v.  Drake,  8  Ho.  of  L.  C.  178. 

4  See  Still  v.  Hoste,  6  Madd.  192,  well  explained  in  1  Redf.  on  "W.  627,  n. 

8  In  such  a  case,  evidence  of  testator's  knowledge  of  the  latter,  and  ignorance  of 
the  former,  and  that  his  instructions  named  the  latter,  but  the  draftsman,  under  mis- 
take  as  to  the  true  name,  prevailed  on  him  to  insert  the  former  name,  meaning  to 
designate  the  other,  is  not  competent  to  establish  the  claim  of  the  latter,  even  though 
the  designation  would  enable  the  latter  to  take,  if  the  former  were  not  named.  SHAW, 
Ch.  J.,  Tucker  v.  Seaman's  Aid  Soc.  7  Mete.  209. 

4  Ld.  PENZANCE,  Charter  v.  Charter  L.  R.,  2  P.  &  D.  315,  324,  8.  o.  1  MoaVs  Eng. 
249,  259.  Where,  however,  the  designation  is  adequate  for  either  of  several  socie:ies, 
some  of  which  are  capable  of  taking,  and  others  not,  there  is  a  presumption  that  the 
testator  intended  one  of  the  former  rather  than  the  latter.  Brewster  v.  McCall,  15 
Conn.  294. 

6  Above,  paragraph  96. 

8  Smith  v.  Smith,  1  Edw.  192;   Careless  v.  Careless,  1  Merw.  384,  s.  c.  19  Vea. 
601. 

7  Smith  v.  Smith  (above). 

B  Howard  v.  Am.  Peace  Soc.  49  Me.  298.  Thus,  the  "American  Board  of  Com- 
missioners for  Foreign  Missions  "  may  take  a  bequest  to  "  The  Congregational  Foreign 
Missionary  Association,"  on  proof  that  it  was  the  only  Foreign  Missionary  Society 
identified  with  the  "Congregational"  churches,  and  that  the  testator  knew  of,  spoke 
of,  and  contributed  to  it,  alone,  and  desired  to  make  a  bequest  to  it  but  did  not  know 
its  corporate  name  ;  and  although  Baptist  and  Methodist  churches  had  foreign  mis- 
sionary societies,  and  the  Baptist  churches  are  in  organization  congregational,  and 
although  there  was  also  an  American  Missionary  Association  engaged  in  connection 
with  Congregational  church-s  in  missions  at  the  South.  Id. 

9  This  waa  in  effect  fully  determined  in  Le  Fevre  v.  Le  Fevre,  N.Y.  Ct.  of  App. 
Cos.  1875. 


142  ACTIONS  BY  AND  AGAINST 

vereation1or  in  letters,8  or  expressed  a  preference  for  it  over 
other  similar  agencies,3  that  he  subscribed  to  its  funds,4  or  had 
made  a  special  gift  to  it,8  or  that  the  church  lie  attended  was  ac- 
customed to  talte  a  contribution  for  it ; 6  that  he  had  been  an 
officer  of  the  society  or  one  of  its  auxiliaries,7  or  that  his  religious 
sentiments  accorded  with  those  of  the  society.8 

100.  —  or  M/snomer.] — Upon  a  question  of  misnomer,  both 
the  usage  of  the  testator  in  speaking  of  the  society,9  his  ignorance 
of  its  true  name,10  and  the  common  usage  of  the  public,  are  com- 


1  Button  v.  Am.  Tract  Soc.  23  Vt.  849. 

!  Ilornbeck  v.  Am.  Bible  Soc.  2  Sandf.  Ch.  133. 

8  Button  v.  Am.  Tract  Soc.  (above).     It  was  there  held  that "  The  American  Tract 

Society"  might  take,  as  against  "The  American  Home  Missionary  Society,"  a  bequest 

to  "The  American  Home  Mission  Tract  Society  for  our  Western  Missions,"  on  ex- 

.  trinsic  evidence  that  testator  was  acquainted  with  the  objects  and  operations  of 

the  Tract  Society ;.  that  those  operations  were  mainly  confined  to  the  Western  States ; 

that  he  took  a  lively  interest  in  it,  contributed  to  its  funds,  and  expressed  a  preference 

•  for  it  over  other  charitable  institutions. 

4  Kilvert's  Trust,  L.  R.  7  Ch.  170,  modifying  L.  R.  12  Eq.  183;  Am.  Bible  Soc.  v. 
Wetmore,  17  Conn.  186. 

*  Hornbeck  v.  Am.  Bible  Soc.  (above). 

'  Am.  Bible  Soc.  v.  Wetmore  (above).  In  that  case  it  was  held  that  "  The  Amer- 
ican Board  of  Commissioners  for  Foreign  Missions"  might  take  a  bequest  to  "The 
Foreign  Mission  Society,"  upon  extrinsic  evidence  that  it  was  commonly  known  by 
that  name  to  the  testatrix  and  the  members  of  the  church  to  which  she  belonged,  and 
that  she  was  friendly  to  its  objects  and  a  contributor  to  it. 

In  Howard  v.  Am.  Peace  Soc.  (49  Me.  298),  to  show  that  "  The  American  Board 
of  Fore'gn  Missions"  was  intended  by  a  bequest  to  the  "  Congregational  Foreign 
Missionary  Society,"  evidence  was  received  and  relied  on  by  the  court,  that  testator, 
before  making  his  will,  knew  of  its  existence  as  a  society  gathering  donations  from 
Congregational  churches  and  their  members,  for  foreign  missions,  so  far  that  a  peri- 
odical collection  was  taken  therefor  in  the  Congregational  churches  in  proximity  to 
which  he  resided;  that  testator  expressed  a  desire  to  make  a  bequest  to  it,  speaking 
of  it  in  contradistinction  to  certain  Methodist  and  Baptist  Societies ;  and  he  gave 
instructions  for  such  bequest,  but  that  neither  he  nor  his  draftsman  knew  its  corporate 
name. 

1  Brewster  v.  McCall,  15  Conn.  294. 

8  Id. 

9  Evidence  that  the  testator,  in  speaking  of  the  affairs  of  the  society  (a  religious 
corporation  in  contradistinction  from  the  church  in  connection  with  which  it  was  or- 
ganized), always  called  it  "  the  church,"  is  admissible  for  the  purpose  of  ascertaining 
which  body  should  take  a  bequest  to  "the  church."      Ajres  v.  Weed,  16  Conn. 
290. 

I0.In  The  Trustees,  <fec.  v.  Peasley  (15  N.  IT.  817),  the  bequest  was  to  "The  Frank- 
lin Seminary  of  Literature  and  Science,  Newmarket,  N.  li.",  and  again  "to  said 
Franklin  Seminary."  It  appeared  tliat  the  school  was  at  South  Newmarket,  in  the 
town  of  Newmarket,  and  known  by  the  name  of  "  The  Franklin  Seminary  of  Litera- 
ture and  Science,"  but  before  the  will  was  made  the  name  was  changed  by  incorpora- 
tion to  "  The  Trustees  of  the  South  Newmarket  Methodist  Seminary."  There  was 
only  one  public  school  at  Newmarket,  and  this  was  taught  by  and  under  the  control 
of  Methodists,  although  it  does  not  appear  that  it  was  a  sectarian  school.  The  testator 
was  a  Methodist  clergyman,  and  once  asked  another  Methodist  clergyman  to  what  in- 
stitution he  should  make  a  donation,  and  was  told  "  The  Franklin  Seminary  at  South 
Newmarket."  This  name  was  written  down  by  the  testator's  wife,  at  his  request,  and 
placed  by  him  in  his  pocket-book.  The  court  say,  '•  The  evidence  tends  strongly  to 
show  that  he  did  not  know  that  the  name  of  the  school  had  been  changed.  He  in- 
quired how  the  school  at  South  Newmarket  prospered,  and  often  spoke  about  it.  Now, 
these  facts  clearly  sh-jw  that  the  testator  had  in  his  mind  the  school  which  was  after- 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES. 

petent ;  and  for  the  latter  purpose,  it  is  competent  to  prove  that 
correspondents  of  the  institution  frequently  addressed  it  by  the 
name  used  in  the  will ;  and  an  officer  of  the  society  or  other  wit- 
ness cognizant  of  the  facts  may  be  asked  to  state  generally  how 
it  is  designated  in  their  correspondence,  circulars,  and  advertise- 
ments ;  and  how  it  was  commonly  called  by  persons  having  deal- 
ings with  it.1 

101.  —  direct  evidence  of  intention."] — Some  of  the  English 
decisions 2  declare  that  direct  evidence  of  intention  is  inadmis- 
sible, unless  the  two   claimants  whose  description  by  extrinsic 
evidence  creates  the  ambiguity  answer  the  designation  of  the  will 
with  an  equal  degree  of  accuracy  ;  and  although  the  better  opin- 
ion is  as  I  have  stated  it  above,  yet,  except  in  such  cases,  it  is  the 
safer  practice,  in  jurisdictions  where  the  rule  is  not  settled,  to 
rely  on  evidence  of  testator's  situation  and  relation  to  the  claim- 
ants, and  his  usages  of  speech  in  regard  to  them,  if  these  are 
sufficient,  rather  than  on  direct  evidence  of  his  intention.     Of 
course,  where  direct  evidence  of  intention  is  admissible,  any  fact 
or  circumstance  which,  from    experience   or  observation,  may 
fairly  be  presumed  to  have  had  an  influence  on  his  mind  in  in- 
ducing him  to  prefer  one  of  the  persons  described  by  him  to 
another,  is  admissible  to  prove  his  intention.3 

102.  — aid  in  applying  to  the  Property  intended.'] — The  same 
principles  which  regulate  the  resort  to  extrinsic  evidence  to  aid 
in  applying  the  language  to  the  person,  regulate  it  in  applying 
the  language  to  the  property.     Extrinsic  evidence  is  not  admissi- 
ble to  change  a  specific  and  explicit  designation  of  the  property 
given  in  the  will,  so  as  to  substitute  a  different  subject,  although 
part  of  the  description  be  equally  applicable  to  either  piece  of 
property  ;4  and  it  cannot  be  made  admissible  even  by  showing 
that  the  testator  did  not  own  the  parcel  designated  in  the  will, 
and  did  own  another,  and  that  the  draftsman  made  the  mistake, — 
for  instance,  to  show  that  he  designated  the  west  half  instead  of 
the  east  half,  or  section  1  instead  of  section  2.5    Nor  can  an  ex- 


wards  incorporated  by  its  present  name.  Whnt  its  peculiar  designation  was,  must  hnve 
been  indifferent  to  him,  for  it  was  the  institution,  by  whatever  name  it  was  known, 
which  he  desired  to  patronize  and  benefit." 

1  Lefevre  v.  Lefevre,  Cas.  in  N.  Y.  Ct.  of  App.  1875. 

9  See  Doe  ex  dem.  Hiscocks  v.  Hiscocks,  6  Mees.  <fe  "W.  363 ;  Charter  V.  Charter, 
L.  R.  7  II.  of  L.  664,  s.  c.  12  Moak's  Eng.  1,  affi'g.  s.  c.  1  Moak's  Eng.  240,  and  cases 
cited.  The  English  cases  are  not,  however,  consistent  in  confining  the  admission  of 
direct  evidence  of  intention  to  cases  where  it  fits  both  persons  or  subjects  with  pre- 
cisely equal  accuracy  or  appropriateness.  Earlier  cases  held  that  in  any  latent  am- 
biguity or  misdescription,  though  there  be  only  one  claimant  or  subject,  evidence  of 
declarations  of  intent  is  admissible,  especially  if  made  at  the  time  of  making  the  will. 
Trustees  v.  Peaslee,  15  N.  H.  830,  and  cases  cited. 

8  Ayres  v.  Weed,  16  Conn.  200. 

4  Robinson  v.  Williams,  1  Weekly  Notes  (Pa.),  337. 

5  Fitzpatrick  v.  Fitzpatrick,  36  Iowa,  674,  8.  c.  14  Am.  R.  638,  and  cases  cited; 
Kurtz  v.  Hibner,  55  111.  614,  s.  r.  8  Am.  R.  665,  669.    But  see  criticisms  on  tlm  doc- 
trine in  10  Am.  L.  Reg.  N.  S.  94, 353,  and  see  1  Redf.  on  Vv".  684  (.11),  and  cases  cited. 
In  some  such  cases,  tho  iulae  word  or  number  may  be  rejected. 


144  ACTIONS  BY  AND  AGAINST 

plicit  and  sufficient  designation  be  enlarged  by  extrinsic  evidence 
that  the  testator  meant  more  than  the  words  will  bear ;  for  in- 
stance, that  by  "moneys"  he  meant  to  pass  choses  in  action,  se- 
curities,1 etc. 

103.  —  identifying  the  property."] — If  the  subject  of  the  be- 
quest is  indicated  in  the  will  by  words  which  do  not  have  a  fixed 
legal  meaning,  and  especially  words  which  refer  to  extrinsic  cir 
cumstances, — for  example,  a  devise  of  "  the  home  and  garden  I 
now  live  in," — the  meaning  is  to  be  ascertained  by  evidence  ex- 
plaining what  were  those  extrinsic  circumstances,3  at  the  time 
referred  to  in  the  will,3  and  a  fortiori,  if  the  designation  bears 
no  sufficient  signification  to  a  reader  unaided  by  extrinsic  evi- 
dence— for  example,  a  devise  of  "  all  my  back  lands," — evidence 
is  admissible  of  the  declarations  of  the  testator  before  and  after 
the  making  of  the  will,  showing  his  habit  in  the  use  of  such  ex- 
pression, and  what  property  he  was  accustomed  to  designate  in 
this  way.4     [Jpon  this  principle,  evidence  that  he  and  his  steward 
were  accustomed  to  call  the  estate  by  the  name  used  in  the  will, 
and  their  entries  of  that  name  in  their  accounts,  are  competent.5 
And  as  a  general  principle,  if  the  subject  of  the  bequest  is  de- 
scribed by  reference  to  an  extrinsic  fact,  extrinsic  evidence  is 
competent  to  show  what  was  intended.6 

104.  —  rejecting  False  Words."] — When  resort  to  extrinsic  evi- 
dence has  shown  that  the  description  is  false  in  part,  the  false 
part  may  be  rejected,  if  the  residue,  with  the  aid  of  the  extrinsic 
evidence  properly  applicable,  will  be  legally  sufficient  to  indicate 
the  gift.     Thus  a  bequest  of  bank  stock,  describing  it  as  stock  in 


1  Thus,  where  the  testator  gives  his  wife  "  all  the  rest,  etc.,  of  the  moneys  belong- 
ing to  my  estate  at  the  time  of  my  decease,"  extrinsic  evidence  is  not  admissible  of 
his  intention  to  leave  securities  to  her ;  nor  that  he  had  been  accustomed  to  support 
the  family  from  the  proceeds  of  such  securities,  and  made  an  otherwise  inadequate 
provision  for  her.     Mann  v.  Mann,  14  Johns.  1,  affi'g  1  Johns.  Ch.  231;  but  compare 
Knight  v.  Knight,  30  L.  J.  Ch.  644. 

2  Doe  ex  dem.  Clements  v.  Collins,  2  T.  E.  498. 

3  Stanford  v.  Lyon,  8  Vroom  (N.  J.)  426,  s.  c.  18  Am.  R.  736. 

4  Ryerss  v.  Wheeler,  22  Wend.  148. 

6  Ib.  and  cases  cited.  It  was  there  said  that  evidence  of  such  declarations  at 
ffie  time  of  executing  the  will  would  not  be  competent.  But  see  Exp.  Hornby,  2 
Bradf.  420.  The  sculptor  Nolleken's  will  provided  that  "  all  the  marble  in  the  yard, 
the  tools  in  the  shop,  bankers,  mod.  tools  for  carving,"  shall  be  the  property  of  A. 
(a  favorite  and  long  employed  workman).  Extrinsic  evidence  was  admitted  that  in 
the  trade  "mod."  would  be  understood  as  meaning  models,  and  that  there  were  no 
such  tools  known  as  modeling  tools  for  carving;  also  of  the  relative  value  of  the 
moulds  and  models,  and  of  the  personal  relations  between  the  testator  and  legatee. 
Goblet  v.  Beechey,  3  Sim.  24.  Reversed,  on  the  ground  that  the  models  were  other- 
wise bequeathed.  4  R.  &  M.  624. 

6  Thus,  where  testatrix  directed  that  a  mortgage  on  her  house  be  paid,  and  also 
"all  debts  now  due  to"  certain  persons  named,  to  an  amount  specified,  extrinsic  evi- 
dence that  the  only  mortgage  on  the  house  was  the  one  made  with  her  assent,  by  a 
person  who  owned  it  jointly  with  her ;  and  that  the  same  person  owed  debts  of  th3 
amount  specified  to  the  persons  named,  was  competent  to  show  that  these  were  in- 
tended. Pritchard  v.  Hicks,  1  Paige,  270. 


''HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES. 

the  A.  bank,  will  pass  stock  in  the  B.  bank,  if  that  was  the  testa- 
tor's only  bank  stock ;  for  after  the  name  of  the  bank  is  rejected, 
enough  is  left  to  ascertain  the  thing  by ;  *  but  this  cannot  be  done 
where,  after  rejecting  the  false  designation,  the  bequest  is  left 
uncertain.2  If,  however,  all  the  words  can  be  consistently  ap- 
plied, though  some  of  them  restrict  others  which  alone  would 
have  been  sufficient,  the  court  will  not  reject  the  restrictive 
words.3 

105.  — uncertainty  as  to  Which  of  Two  parcels.] — As  in  the 
case  of  an  equivocal  designation  of  the  beneficiary,  so  in  the  case 
of  a  similar  ambiguity  as  to  the  property  given,  if  it  is  shown 
that  a  designation  in  the  will,  which  upon  its  face  is  unambigu- 
ous and  sufficient,  applies  equally  in  all  its  parts  to  more  than  one 


1  Roman  Catholic  Asylum  v.  Emmons,  3  Bradf.  144.  But,  there  being  a  corpora- 
tion in  Dedham,  entitled  "  The  President,  Directors  and  Company  of  the  Dedham 
Bank,"  and  generally  called  "  The  Dedham  Bank,"  a  bequest  of  "  all  moneys  due  me, 
at  the  time  of  my  decease,  from  Dedham  Bank,  Dedham,  Alass.,"  \vill  not  pass  a  deposit 
in  "Dedham  Institution  fop  Savings,"  though  generally  known  as  the  Dedham  Sav- 
ings Bank,  and  though,  at  the  date  of  the  will,  testator  had  a  deposit  there.  This  is 
not  a  case  of  false  description ;  for  testator  refers  to  what  may  be  at  the  time  of 
death.  American  Bible  Society  v.  Pratt,  9  Allen,  109;  approved  in  1  Redf.  on  W. 
666,  n.  Where  testator  gave  a  specified  "  part  of  my  stock  in  the  $4  per  cent,  annui- 
ties ; "  and  it  appeared  that  he  had  previously  sold  all  such  stock  and  re-invested  tho 
proceeds  in  long  annuities.  Held,  that  evidence  of  the  situation  of  the  funds  was 
admissible ;  but  direct  evidence  of  testator's  intent,  and  the  scrivener's  mistake  in 
copying  from  an  old  will,  was  not.  See  Redfield's  comments  on  Selwood  v.  Mild- 
may,  3  Ves.  306,  in  1  Redf.  on  W.  597,  and  n. 

s  Thus,  where  the  only  description  was  "  the  farm  I  now  occupy,"  it  was  held 
that  the  words,  "  I  now  occupy,"  could  not  be  rejected,  because  no  sufficient  designa- 
tion would  be  left.  Hence  extrinsic  evidence  that  the  testator  intended  by  this  to 
give  all  his  real  estate  at  W.,  including  a  farm  occupied  by  a  tenant,  was  not  admis- 
sible. THOMPSON,  J.,  Jackson  v.  Sill,  11  Johns.  201.  But  where  the  description  was 
"  tha  old  homestead,  whereon  I  lived  at  the  time  of  making  my  will,  containing  100 
acres, — Held,  that  the  property  was  identified  by  the  designation  "  old  homestead," 
there  being  evidence  that  this  100-acre  farm  had  always  been  known  by  that  name  in 
the  family;  and  that  the  words,  "  whereon  I  lived,  <fec.,"  did  not  let  in  parol  evidence 
of  the  extent  of  testator's  occupation,  or  of  his  declarations  as  to  the  boundary. 
Waugh  v.  Waugh,  28  N.  Y.  94.  So  where  the  description  was  "  my  farm  at  B.  in 
the  tenure  of  J.  «.,"  and  part  of  the  farm  was  not  in  his  tenure, — Held,  that  the  latter 
clause  might  be  rejected.  Ld.  MANSFIELD,  Goodtitle  v.  Paul,  2  Burr.  1089.  So  in  a 
devise  of  "  all  the  land  I  own,  which  lies  along  the  S.  Creek,  and  known  by  the  name 
of  T.'s  Patent,"  the  latter  clause  may  be  rejected  on  parol  evidence  that  the  farm- 
lying  along  the  creek  was  not  in  T.'s  patent,  and  that  the  lot  in  T.'s  patent  did  not 
lie  along  the  creek.  Doe  v.  Roe,  1  "VVend.  641.  In  this  case,  the  ambiguity  being 
latent,  the  scrivener's  testimony  to  the  testator's  instructions,  and  to  his  own  mistake, 
was  admitted.  So  a  devise  of  the  M.  farm,  containing  eight  fields,  may  pass  nine 
fields,  by  extrinsic  evidence  that  he  occupied  nine.  This  renders  the  restriction  to 
eight  void  for  uncertainty.  Coleman  v.  Eberly,  76  Penn.  St.  197. 

'  Thus  by  a  gift  of  "  all  my  lands  in  lot  25,  in  H.  Patent,  lying  in  tho  County  of 
G.,"  such  only  of  testator's  lands  in  the  lot  and  patent  named,  aa  lie  in  G.  will  pass. 
The  court  will  not  reject  an  intelligible  and  applicable  restriction,  merely  because 
the  general  words  are  enough  without  it.  Hunter  v.  Hunter,  17  Barb.  85,  a.  p.  Ped- 
ley  v.  Dodds,  L.  R.  2  Eq.  819.  But  if,  instead  of  "  all  my  lands  in  lot  26,  <fcc.,  lying 
in  G.,"  testator  had  written  "all  my  B.  estate,  which  lies  in  G.,"  parol  evidence 
would  be  admissible  to  show  that  he  habitually  called  the  whole  property  hia  B.  es- 
tate, and  ttie  court  might  reject  the  partially  inconsistent  words,  "  which  lies  in  G." 
Doe  v.  Earl  of  Jersey,  1  B.  &  Aid.  650;  3  B.  <fc  Cr.  870. 

10 


146  ACTIONS  BY  AND  AGAINST 

subject — as  where  a  testator  devises  his  manor  of  S.,  and  it  ap-~ 
pears  that  he  has  two  such,  one  of  North  S.  and  one  of  South  B. 
— extrinsic  evidence  must  determine  which  passes ;  and  for  this 
purpose  the  testator's  declaration  of  intention  may  be  proved.1 
This  rule  applies  also  where  realty  is  described  as  personalty  and 
vice  versa.  Thus  a  bequest  of  land  will  pass  a  mortgage  on  the 
land  if  testator  had  no  other  interest.2  • 

The  principles  which  contend  for  control  in  this  class  of  ques- 
tions are,  that,  on  the  one'  hand,  where  a  devise  is  in  general 
terms,  subsequent  words  of  description,  restriction,  exception,  or 
limitation,  should  control  the  general  terms ;  but,  on  the  other 
hand,  where  the  primary  or  larger  description  is  sufficiently  spe- 
cific and  certain  to  indicate  the  intent,  words  of  identification  in- 
consistent with  it  may  be  rejected  as  false  or  mistaken.8 

106.  Nature  of  Estate  given.'] — "Where  the  words  of  the  will 
are  not  ambiguous,  and  no  latent  ambiguity  or  "  equivocation  " 
is  produced  by  extrinsic  evidence,  it  is  not  competent  to  adduce 
evidence  of  the  declarations  of  the  testator  or  his  instructions  to 
the  draftsman,  for  the  purpose  of  showing  that  a  different  estate 
or  interest  from  that  indicated  was  intended,4  as,  for  instance,  that 
a  gift  so  expressed  as  to  vest  in  interest  at  testator's  death,  was  in- 
tended to  lapse  if  the  beneficiary  did  not  survive  until  it  vested 
in  possession.5 

107.  Raising  a  Trust.~] — Extrinsic  evidence  to  charge  the  ap- 
parent beneficiary  as  trustee  for  a  third  person  is  competent  only 
when  the  intent  is  shown  to  have  been  communicated  to  the  ap- 
parent beneficiary,6  or  when  admissible  on  principles  previously 
explained  to  aid  in  interpretation,  or  where  the  legatee  is  named 


1  See  paragraph  97  (above)  for  the  limits  of  this  rule.  Where  a  devise  is  of  lands 
described  as  being  in  a  specified  parish  or  town,  and  the  expression  does  not  indicate 
an  exclusion  of  lands  beyond  its  true  limits,  extrinsic  evidence  is  admissible  to  show 
that  the  whole  lands  were,  at  the  date  of  the  will,  by  common  repute  and  in  the  un- 
derstanding of  the  testator,  within  the  parish  or  town.  See  1  Redf.  on  W.  650-4, 
and  cases  cited.  Where  usage  differed  as  to  the  limits  indicated  by  a  geographical 
name  used  in  the  description,  evidence  of  testator's  usage  of  the  term  would  be 
competent. 

*  Woods  v.  Moore,  4  Sandf.  679.     But  if  the  words  of  the  will  are  insufficient  to 
carry  real  estate,  it  is  not  competent  to  show,  from  the  condition  of  the  testator's 
property,  or  his  own  memoranda  and  declarations,  that  he  must  have  so  intended. 
Allen's  Exrs.  v.  Allen,  18  How.  U.  S.  385;  1  Redf.  on  W.  606,  note. 

*  For  an  illustration  of  the  arguments,  pro  and  con.,  see  Van  Kleck  v.  Dutch 
Church,  20  Wend.  456,  where  the  court,  including  BRONSON,  BEABDSLEY,  NELSON, 
COWEN,  JJ.,  and  others  were  equally  divided  on  such  a  question. 

4  Hill  v.  Felton,  47  Ga.  455,  -s.  c.  15  Am.  R.  643,  654.  And  where  the  question 
was  whether  the  devise  was  of  a  life-estate  or  a  fee, — Held,  that  evidence  that  the 
lands  were  wild  and  uncultivated  was  inadmissible.  Charter  v.  Otis,  41  Barb.  625. 
Contra,  Sargent  v.  Tonne,  10  Mass.  303. 

6  Ordway  v.  Dow,  65  N.  H.  11. 

*  Robotham  v.  Dunnett,  26  W.  R.  630,  and  cases  cited. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        147 

as  a  trustee,  or  where  the  probate  court  could  afford  no  remedy, 
or  where  one  name  was  fraudulently  inserted  for  the  other.1 

108.  Aid  in  Executing  the  will.'] — There  are  several  classes  of 
cases  where  the  language  of  each  disposition  of  the  will  is  clear, 
but  extrinsic  evidence  is  necessary  to  guide  the  administration  in 
carrying  them  into  effect.     It  will  be  seen  that  it  is  allowed  in 
these  cases,  not  to  alter  the  meaning  of  the  will,  but  to  confirm 
and  insist  on  it  when,  without  such  evidence,  equity  would  in 
some  way  dispense  with  the  literal  fulfillment  of  the  language. 
As  a  general  principle,  after  extrinsic  evidence  to  rebut  such  a 
presumption  has  been  received,  but  not  before,  the  like  evidence 
is  admissible  to  support  the  presumption,  that  is  to  say,  to  contra- 
dict the  extrinsic  evidence  first  given.2 

109.  —  as  to  the  Administrative  Character  of  the  gift-] — Ex- 
trinsic evidence  is  admissible  to  aid  in  determining  whether  a  be- 
quest of  stock  is  a  specific  or  a  pecuniary  legacy ; 3  and  where 
tiie  will  designates  a  specific  fund  which  extrinsic  evidence  shows 
does  not  exist,  extrinsic  evidence  is  admissible  to  show  that  such 
fund  formerly  existed,  and  how  the  mistake  arose ;  and,  in  a 
proper  case,  the  legacy  may  upon  such  evidence  be  sustained  as  a 
general  gift  payable  out  of  the  estate.4    But  the  necessary  legal 
consequences  involved  in  an  expressed  intention  cannot  be  varied 
by  extrinsic  evidence.     Thus  since  the  gift  of  a  specific  legacy 
entitles  the  legatee  to  its  income,  not  as  an  equitable  presumption 
of  intention,  but  as  a  matter  legalty  included  in  the  gift,  in  such 
case  extrinsic  evidence  is  not  admissible  to  show  the  intention  of 
the  testator,  as  to  the  income  of  such  legacies,  where  the  will  is 
silent.5 

110.  —  as  to  bequest  to  Creditor. ,] — Where  it  appears  that  one 
to  whom  a  legacy,  expressed  in  terms  appropriate  to  a  pure  gift, 
was  a  creditor  of  the  testator,  the  court  will  not  presume  that 
the  bequest  was  intended  to  satisfy  the  debt,  if,  by  reason  of  the 
amount  or  the  time  for  payment,  the  bequest  would  not  be  as 


1  1  Redf.  on  Wills,  60,  citing  1  Ho.  of  L.  Cas.  191 ;  Gaines  v.  Chew,  2  How.  U 
S.  619.  Compare  Irvine  v.  Sullivan,  L.  R.  8  Eq.  673;  Collier  v.  Walters,  L.  R.  17 
Eq.  252,  s.  c.  7  Moak's  Eng.  798 ;  Duke  of  Cumberland  v.  Graves,  9  Barb.  6!>5.  It 
seems  that  a  devisee  may  also,  in  some  cases,  upon  parol  proof  of  testator's  agree- 
ment to  devise  to  another,  be  held  a  trustee  for  that  other.  Howland  Will  Case,  4 
Am.  Law  Rev.  661,  and  cases  cited. 

3  Phillips  v.  McCoombs  (below);  1  Redf.  on  Wills,  647,  Hall  v.  Hill,  1  Dru.  A 
War.  94,  116. 

3  Boys  v.  Williams,  2  Russ.  <fe  M.  689,  rev"g  3  Sim.  663.    And  see  Pierrepont  v. 
Edwards,  25  N.  Y.  128. 

4  Lind-^reen  v.  Lindgren,  9  Beav.  358,  363.     Compare  28  Id.  484,  520. 

8  Loring  v.  Woodward,  41  N.  H.  891;  1  Redf.  on  Wills,  665,  §  73.  Whether 
parol  evidence  to  show  that  testator  intended  to  dispose  of  property  not  his  own  is 
admissible  for  the  purpose  of  putting  a  beneficiary  to  an  election, — see  note  to  Dillon 
v.  Parker,  1  Swanst.  402,  403;  2  Wms.  Exrs,  6  Am.  ed.  1550;  ilaveus  v.  Sackett. 
15  N.  Y.  865. 


148  ACTIONS  BY  AND  AGAINST 

beneficial  as  ordinary  payment  by  the  estate ; l  and  in  such  case 
extrinsic  evidence  that  the  testator  only  intended  to  satisfy  the 
debt  is  not  competent.2  Where  the  bequest  and  the  debt  are 
such  that  an  equitable  presumption  arises  that  the  bequest  was 
intended  in  satisfaction,  then  extrinsic  evidence,  even  by  the 
declarations  of  the  testator,  is  admissible  to  rebut  the  presump- 
tion, because  it  simply  tends  to  show  that  he  intended  precisely 
what  the  will  says.8  The  rule  is  in  no  case  to  admit  extrinsic  evi- 
dence against  construction  upon  the  words  of  the  will.4 

111.  —  or  to  heirs  or  next  of  Jcin  in  Advance.'] — Where  the 
will  directs  the  mode  of  dealing  with  advances  which  the  testator 
has  made  to  children  or  others  expecting  to  share  in  his  estate, 
extrinsic  evidence  of  his  intent  in  making  the  advances  referred 
to  is  competent  for  the  purpose  of  determining  what  obligations 
are  within  the  terms  of  the  will.5 

112.  —  as  to  presumptively  Cumulative  gifts.'] — Where  the 
same  sum  is  given  twice  in  the  same  will  to  the  same  legatee, 
courts  of  equity  have  recognized  a  presumption  that  the  latter 
sum  is  a  mere  repetition  or  substitution ;  but  where  the  two  gifts 
are  in  different  instruments, — e.  g.,  where  one  is  given  by  will 
and  the  other,  by  codicil,6 — the  presumption  is  that  both  were  in- 
tended.   In  either  case,  extrinsic  evidence  is  competent  for  the 
purpose  of  rebutting  the  equitable  presumption,7  so  far  as  to 
enable  the  court  to  place  itself  in  the  testator's  situation  at  the 
time  of  making  the  will ;  butahis  declarations  cannot  be  proved  to 
show  an  intent  or  motive  in  the  will,  against  its  legal  construction.8 

113.  —  as  to  Adem.ption.'] — If  a  parent,  or  other  person  in 
loco  parentis,  bequeaths  a  legacy  to  a  child  or  grandchild,  and 
afterwards,9  in  his  life-time,  gives  a  portion  or  makes  a  provision 
for  the  beneficiary,  even  without  expressing  it  to  be  in  lieu  of  the 
legacy,  it  will,  in  general,  be  deemed  a  satisfaction  or  ademption 
01  the  legacy.10     When  a  legacy  is  given  for  a  particular  purpose 


1  See  Fort  v.  Gooding.  9  Barb.  3*71,  and  cases  cited. 

s  Phillips  v.  McCoombs,  Oct.  1873,  Cas.  in  N.  Y.  Ct.  App.,  Opin.  of  DOOLITTLE,  J., 
approved  in  53  N.  Y.  494,  overruling  in  part  Williams  v.  Crary,  5  Cow.  368 ;  8  Id. 
246 ;  4  Wend.  443. 

8  Id. 

4  Hall  v.  Hill,  1  Dm.  <fe  War.  115,  and  cases  cited,  SUGDEX,  L.  C. 

s  Tillotson  v.'  Race,  22  N.  Y.  122.   Compare  Chase  v.  Ewing,  51  Barb.  597. 

6  Or  by  separate  instruments  made  at  the  same  time.     Whyte  v  Whyte,  L.  R.  17 
Eq.  60,  s.'c.  7  Moak's  Eng.  672. 

7  Be  Witt  v.  Yates,  10  Johns.  156,  and  cases  cited ;  and  see  Russell  v.  St.  Aubyn, 
L.  R.  2  Chan.  Div.  405,  s.  c.  16  Moak's  Eng.  818. 

8  Martin  v.  Drink-water,  2  Beav.  215,  218. 

9  A  previous  advance  may  be  shown  to  be  an  ademption  by  extrinsic  evidence. 
Rogers  v.  Prince,  19  Geo.  816. 

10  Langilon  v.  Astor,  16  N.  Y.  9,  34;  Hine  v.  Hine,  39  Barb.  507,  and  cases  cited. 
Even  though  the  amount  is  less.     Richard  v.  Humphreys,  15  Pick.  136.     And  a  re- 
publication  of  the  will  does  not  necessarily  rebut  the  presumption.     Paine  v.  Par- 
sons, 14  Id.  320. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        149 

specified  in  the  will,  and  the  testator,  during  his  life,  accomplishes 
the  same  purpose,  or  furnishes  the  intended  beneficiary  with 
money  for  that  purpose,  the  legacy  is  presumed  to  be  satisfied.1 
The  parental  relation  is  evidence  from  which  it  may  be  inferred 
that  payment,  not  a  fresh  gift  was  intended ;  but  this  presumption 
may  of  course  be  overcome  by  evidence  that  such  was  not  the 
intention  ;  and  such  evidence,  when  admitted,  may  be  answered 
by  other  evidence  of  the  same  character.2  But  the  extrinsic  evi- 
dence is  competent,  in  such  cases,  not  to  vary  the  terms  of  the  will, 
but  to  establish,  on  behalf  of  the  claimants,  the  acts  and  intents  of 
the  testator,  so  as  to  rebut  the  presumption  of  satisfaction  arising  in 
behalf  of  the  adverse  party  ;  and  it  is  only  when  such  evidence 
has  been  received,  that  extrinsic  evidence  is  competent  in  reply 
in  support  of  the  presumption  of  satisfaction.3  For  this  purpose 
the  declarations  of  the  testator  relevant  to  the  question  whether 
the  bequest  was  made  in  loco  parentis*  as  well  as  those  relative 
to  the  question  of  intent  to  addeem,  are  competent 5  (especially  if 
not  contradictory  to  the  terms  of  a  writing),  both  when  made  at 
the  time  of  the  transaction,6  and  when  made  before  or  after  it ; 7 
but  they  are  not  competent,  to  construe  the  language  of  the  will, 
except  within  the  general  rules  previously  explained,  nor  are 
they  competent,  to  raise  a  presumption  of  ademption  where  none 
would  arise  on  the  face  of  the  will,  in  connection  with  the  writ- 
ing relied  on  as  constituting  the  ademption.  The  extrinsic  evi- 
dence is  only  admissible  in  such  cases  for  the  purpose  of  showing 
what  the  testator  meant  by  the  act  other  than  the  will.8  Extrinsic 
evidence  is  not  competent  to  prove  that  a  statement  in  the  will 
that  testator  had  made  an  advancement  was  a  mistake,  for  the 
purpose  of  avoiding  its  deduction.9 

114.  —  as  to  Charging  legacies.} — If  the  language  of  the  will 
is  doubtful  as  to  whether  or  not  legacies  are  charged  on  real 
property,  extrinsic  evidence  of  the  situation  of  testator  and  his 
property,  and  the  surrounding  circumstances,  is  competent  to  aid 
in  determining  the  question.11' 


1  Hine  v.  Hine  (above),  and  cases  cited.  At  least,  if  the  intent  were  made  known 
to  the  beneficiary,  see  Langdon  v.  Astor,  16  N.  Y.  37. 

*  Langdon  v.  Astor,  16  N.  Y.  34,  35. 

8  Id. ;  Hall  v.  Hill  (above);  Richards  v.  Humphreys,  15  Pick.  139  ;  2.Wm.  Exrs. 
6  Am.  ed.  1412,  1444;  Miner  v.  Atherton,  35  Penn.  St.  528.  Contra,  Sims  v.  Sims, 
2  Stockt.  Ch.  (N.  J.)  163. 

4  Powys  v.  Mansfield,  3  Myl.  <fe  Cr.  359,  370;  Gill's  Estate,  1  Pars.  Eq.  Cas.  139. 
And  his  acts  also.  2  Wms.  Exrs.  6  Am.  ed.  1446. 

6  Whately  v.  Spooner,  3  Kay  &  J.  542. 

6  Richards  v.  Humphreys,  15  Pick.  139. 

7  See  conflicting  authorities  cited  in  Gilliam  v.  Chancellor,  43  Miss.  437,  8.  o.  5 
Am.  li.  498. 

8  Hall  v.  Hill,  1  Dm.  <fe  War.  94,  116. 

•  Painter  v.  Painter,  18  Ohio,  247. 

10  Hensman  v.  Freyer,  L.  R.  2  Eq.  627 ;  3  Ch.  420 ;  Paxon  v.  Potts,  2  Green  Ch. 
(N.  J.)  321,  and  cases  cited  ;  Dey  v.  Dey,  19  N.  J.  Eq.  (4  C.  E.  Green),  137.  Such 
evidence  was  not  competent  at  law.  Tole  v.  Hardy,  6  Cow.  833. 


150  ACTIONS  BY  AND  AGAINST 

115.  — aa  to  execution  of  Power. ~\ — The  question  whether  a 
bequest  is  in  execution  of  a  power,  is  one  of  intention,  and  the 
intention    cannot   be  proved  by   direct   evidence   of    testator's 
intention  extrinsic  to  the  will;    but   evidence  of  the  situation 
of   the  testator,  the  surrounding  circumstances,  and  the   state 
and  amount  of  testator's  property  at  the  time  of  making  the 
will  is  competent,  both  in  respect  to  realty  (as  was  always  al- 
lowed) and  in  respect  to  personalty  (as  formerly  was  not  allowed), 
for  the  purpose  of  comparing  the  dispositions  of  the  will  witn 
the  property  owned  and  with  that  subject  to  the  power,  and 
thence  deducing  an  inference  of  the  intention  to  dispose  of  the 
latter  rather  than  the  former.1     Upon  the  whole  evidence  the 
intention  must  be  apparent  and  clear ;  if  it  be  doubtful,  the  act 
cannot  be  deemed  an  execution  of  the  power.8 

116.  Time  of  Declarations  Searing  on  Intention.] — Evidence 
of  the  language  of  the  testator  offered  not  as  direct  proof  of  in- 
tent, but  to  show  his  usages  of  speech,  need  not  be  confined  to 
any  particular  time ;  it  is  enough  that  the  declarations  involve 
his  use,  in  other  ways,  of  the  language  used  in  the  will,  and  in  the 
same  relation  as  there  used.    But  the  weight  to  be  given  to  such 
declarations  may,  of  course,  vary  much  with  remoteness  in  point 
of  time  from  the  making  of  the  will.     Where  such  declarations 
are  competent  as  direct  proof  of  intention  in  the  will,  their  weight 
depends  more  immediately  upon  their  proximity  to  its  execution  ; 
but  if  competent  for  this  purpose,  they  are  competent,  whether 
made  before,  at,  or  after  the  act.8 

XI.  ADVANCEMENTS. 

117.  The  general  presumption.'] — The  law  recognizes  the  nat- 
ural affection  which  prompts  the  parent  (and  in  some  degree  any 
one  standing  in  loco  parentis)  to  make  voluntary  provision  for 
children 4  by  anticipating  in  favor  of  one  or  another,  the  distribu- 
tion of  the  patrimonial  estate  before  death,  and  which  at  the  same 
time  intends  that  the  ultimate  division  shall  equalize  the  shares 
of  all.5     Hence  it  is  a  legal  though  not  a  conclusive  presumption, 
applicable  in  case  of  total  intestacy,  or,  to  speak  more  closely, 
wherever  (will  or  no  will)  the  division  of  the  entire  estate  is 
subjected  to  the  statutes  of  descent  and  distributions,6  that  a  sub- 

1  White  v.  Hicks,  33  N.  Y.  394 ;  Ruding's  Settlement,  L.  R.  14  Eq.  266. 

2  White  v.  Hicks  (above).     Otherwise  by  statute,  as  to  real  property.     1  N.  Y.  R. 
S.  782,  §  126. 

3  This  is  now  regarded  as  the  better  rule.     Doe  v.  Allen,   12  Ad.  &  El.  451 ; 
though  there  are  many  conflicting  cases. 

4  In  many  cases  the  language  of  the  court  extends  the  rule  no  farther  than  to 
provisions  for  minors,  see  Jackson  v.  Matsdorf,  11  Johns.  91 ;  but  minority  is  not 
essential  to  the  presumption,  and  indeed,  where  the  expenditure  is  for  maintenance 
during  minority,  may  indicate  that  it  was  made  in  discharge  of  parental  duty.     See 
Vail  v.  Vail,  10  Barb.  69. 

6  Parks  v.  Parks,  19  Md.  323. 

•  Camp  v.  Camp,  2  Red£  Surr.  141. 


'  HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        151 

stantial  provision,  beyond  expenditures  for  maintenance  or  edu- 
cation,1 and  not  characterized  as  a  mere  gift  nor  as  creating  a  debt 
on  the  part  of  the  child,2  was  intended  as  an  earnest  of  the  inher- 
itance, and  to  be  deducted  from  the  recipient's  share  of  the  estate 
on  the  parent's  death.  The  court  look  to  the  substantial  character 
of  the  provision.3  But  in  all  cases  the  question  is  one  of  intent,4 
the  mam  element  being  the  intent  of  the  donor  ;  and  very  slight 
evidence  suffices  to  sustain  the  inference  that  the  donee  accepted 
the  transfer  upon  the  understanding,  express  or  implied,  that  it 
should  serve  on  the  death  of  the  donor,  in  lieu  of  so  much  of  any 
share  to  come  from  his  estate  to  the  donee.5  The  intent  shown 
once  to  have  existed  is  presumed  to  have  continued ; 6  and  neither 
a  transaction  by  which  a  legal  debt  has  been  constituted,7  nor  a 
benefit  once  conferred  and  accepted  as  a  gift,8  can  be  converted 
into  an  advancement,  by  the  act  of  the  decedent,  uncommunicated 
to  the  debtor  or  donee.  The  subject  is  usually  regulated  by 
statute,  which  should  be  carefully  consulted ;  for  a  statute  defin- 
ing what  shall  be  deemed  to  be  or  prove  an  advancement,  may  be 
construed  to  exclude  other  evidence  in  substitution  for,9  or  in  re- 
buttal of,  the  statutory  evidence.10  But  if  the  statutory  evidence 
is  adduced,  it  is  the  better  opinion  that  parol  evidence  in  aid  of 
its  validity  and  interpretation  is  admissible  upon  the  familiar 
principles  generally  applicable  to  statutory  evidence.11  To  deter- 
mine a  question  of  advancement,  attention  should  first  be  given  to 
the  statute  definition  ;  then,  if  the  statute  does  not  preclude  such 
other  tests,  resort^  should  next  be  had  to  the  will,  if  any,  to  ascertain 
the  testator's  intent ;  next,  to  the  terms  of  the  gift  or  grant  itself, 
if  in  writing,  or  to  the  written  entries  made  in  his  accounts,  &c., 
by  the  testator ;  or  the  written  evidence  taken  from  the  donee ; 
next,  to  the  res  gestce  at  the  time  of  the  transfer,  and,  on  the  fail- 
ure of  these  tests,  or  in  aid  of  them,  to  the  declarations  of  the 


1  1  N.  Y.  R.  S.  754,  §  23  ;  4  Kent  Com.  417.      In  States  where  the  statute  does 
not  exclude  it,  extrinsic  evidence  that  such  expenditures  were  intended  as  advance- 
ments, is  proper.     Kiddle's  Estate,  19  Penn.  St.  431. 

2  Law  v.  Smith,  2  R.  I.  244. 

3  Thus,  wliere  the  father  conveys  the  fee  to  his  son,  who  reconveys  for  life,  the 
advancement  amounts  only  to  the  value  of  the  remainder.     Comings  v.  Wellman,  14 
N.  II.  287.     But  where  the  consideration  of  a  deed  was  pecuniary,  except  as  to  a 
specified  fraction,  which  was  the  grantee's  "  hereditary  portion  from"  the  grantor, 
held,  that  as  to  the  amount  of  that  portion,  it  was  an  advancement.     Miller's  Appeal, 
31  Penn.  St.  337.     So  a  conveyance  for  life,  with  remainder  to  the  grantee's  chil- 
dren, is  presumptively  an  advancement  only  to  the  value  of  the  life-estate.   Cawthorn 
v.  Coppedge,  1  Swan,  487. 

4  Weaver's  Appeal,  63  Penn.  St.  309,  and  other  cases  cited  above  and  below. 

5  See  the  contractual  nature  of  advancements  well  explained  in  Bing.  on  Dose. 
847. 

6  Oiler  v.  Bonebrako,  65  Penn.  St.  838.  ^ 

I  Yundt's  Appeal,  13  Penn.  St.  675. 

8  Sherwood  v.  Smith,  28  Conn.  616. 

9  Barton  v.  Rice,  22  Pick.  608. 

10  s.  P.  ns  to  revocation  of  will,  paragraph  72,  above. 

II  See  Bing.  on  Desc.  897. 


152  ACTIONS  BY  AND  AGAINST 

decedent  and  the  admissions  of  the  beneficiary ;  and  lastly,  to 
the  character  of  the  thing  given,  and  the  situation  of  the  par- 
ties and  their  surrounding  circumstances,  from  which  a  presump- 
tion may  arise  as  to  whether  it  was  a  gift,  an  advancement,  or  a 
loan.1 

118.  Advancement  by  Deed  of  Real  Property^  — If  the  lan- 
guage of  a  sealed  instrument  will  without  violence  bear  either 
construction,  equity  will  receive  parol  evidence  to  show  the  act- 
ual intent,2  unless  the  statute 3  prevents.     A  deed  from  parent  to 
child,  expressed  to  be  in  consideration  of  "love  and  affection," 4 
or  "  gooa-will," 5  or  the  like,6  raises  a  presumption  of  advance- 
ment ; 7  and  the  fact  that  a  nominal  pecuniary  consideration  is 
also  expressed,  does  not  alone  rebut  the  presumption,8  but  is 
enough  to  let  in  parol  evidence  to  rebut  it,9  and  parol  evidence 
in  support  of  the  presumption  is  then  equally  admissible.10    If  the 
deed  expresses  only  a  valuable  consideration  and  acknowledges 
its  payment,  this  by  itself  is  presumed  not  to  be  an  advance- 
ment,11 but  parol  evidence  is  admissible  to  show  that  no  such  con- 
sideration was  asked  or  received,12  and  such  evidence  raises  the 
presumption  that  the  gift  was  an  advancement.13 

119,  Purchase  in  Name  of  Child.~\ — Extrinsic  evidence  is  com- 
petent to  show  that  the  decedent  procured  securities 14  or  a  con- 
veyance to  be  made,  by  a  third  person,  to  a  child  who  claims  to 


1  Such,  for  instance,  as  the  amount  as  compared  with  the  estate  of  the  parent  and 
the  number  of  the  children,  and  the  purpose  for  which  the  advance  was  made.  It  is 
always  a  natural  and  reasonable  presumption  that  a  parent  means  to  treat  his  chil- 
dren equally.  If  his  estate  is  large,  a  comparatively  small  sum  raises  the  pre- 
sumption of  a  gift  or  present.  So,  if  it  be  shown  that  the  purpose  was  education,  it 
will  be  presumed  to  have  been  in  discharge  of  the  parental  duty,  until  rebutted  by 
other  evidence.  Weaver's  Appeal,  63  Penn.  St.  309. 

9  Phillips  v.  Chappell,  16  Geo.  16.  As  the  question  is  not  between  the  parties  to 
the  original  instrument,  the  general  rule  excluding  parol  is,  perhaps,  not  strictly  ap- 
plicable. See  Parks  v.  Parks,  19  Md.  322  ;  and  ch.  I,  paragraph  16,  of  this  vol. 

8  As  in  Vermont,  Adams  v.  Adams,  22  Vt.  60,  64. 

4  Hatch  v.  Straight,  3  Conn.  31. 

6  Sayles  v.  Baker,  5  R.  I.  457. 

«  Miller's  Appeal,  31  Penn.  St.  337. 

7  For  the  court  presumes  equal  affection  for  the  others.    Parks  v.  Parks,  19  Md. 
823.    Proof  that  the  son  had  rendered  services  under  a  contract,  without  anything 
to  show  that  he  had  not  received  the  contract  compensation,  will  not  disprove  the 
intent  of  an  advancement.     And  on  the  other  hand,  the  statement  in  the  deed,  that 
the  conveyance  was  partly  in  consideration  of  a  contract  for  services  or  support, 
may  be  explained  by  parol  testimony.     Kingsbury's  Appeal,  44  Penn.  St.  460. 

8  Hatch  v.  Straight  (above). 

9  Scott  v.  Scott,  1  Mass.  627. 

10  Kingsbury's  Appeal,  44  Penn.  St.  460. 

11  Newell  v.  Newell,  13  Vt.  24. 

18  Speer  v.  Speer,- 14  N.  J.  Ch.  (1  McCarter),  240;  Meeker  v.  Meeker,  16  Conn. 
883. 

13  Sanford  v.  Sanford,  5  Lans.  486,  s.  c.  61  Barb.  293. 

14  2  Story's  Eq.  J.  §  1204. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        153 

share  in  his  estate,  under  the  statute,1  and  that  the  decedent 2  paid 
the  consideration,  even  though  the  deed  recites  payment  by  the 
grantee  ; 3  and  these  facts  shown,  without  more,  raise  a  legal  pre- 
sumption that  the  purchase  was  an  advancement.4  Extrinsic  evi- 
dence is  admissible  in  this  as  in  other  classes  of  prima  tfacie  ad- 
vancements, to  rebut  or  support  the  presumption  of  intent  to 
make  an  advancement.5  Each  case  has  to  be  determined  by  the 
reasonable  presumption  arising  from  the  facts  and  circumstances 
connected  with  it.  Lapse  of  time,  connected  with  continued  acts 
of  recognition  of  the  right  of  the  donee,  are  always  potent,  and 
frequently  controlling  circumstances  in  determining  the  inten- 
tion.6 If  it  be  shown  that  the  object  of  the  parent  or  husband 
was  to  defraud  his  existing  or  future  creditors,  they  may  avoid 
it ; 7  but  the  fact  that  the  grantor  adopted  that  form  of  convey- 
ance in  the  fear  of  creditors,  is  not  alone  enough  to  preclude  giv- 
ing it  effect  as  between  the  heirs,  &c.,  as  an  advancement.8 

120.  Other  transfers.'] — Unless  the  statutes  of  the  State9  im- 
pose a  different  rule,  both  the  fact  and  the  character  of  an  ad- 
vancement, even  of  real  property,  may  be  established  by  parol,10 
and  no  particular  form  of  words  is  required.11  A  sum  of  money 
given  to  enable  the  son  to  purchase  a  farm  or  the  like,  the  amount 
being  large  and,  perhaps  equivalent  to  the  apparent  expectancy 
of  the  son,  is  presumptively  an  advancement  if  no  security  or 
promise  is  taken  by  the  parent ;  ^  and  if  securities  for  repayment 
are  taken  by  a  parent  on  furnishing  funds  to  the  child,  the  subse- 
quent surrender  of  them,  or  a  part  of  them,  may  raise  a 


1  See  paragraph  117. 

*  Whether  the  father.  Proseus  v.  Mclntyre,  5  Barb.  424,  432 ;  Taylor  v. 
Taylor,  4  Gilm.  303;  Mumma  v.  Mumma,  2  Vern.  19;  or  the  mother.  Murphy  v. 
Nathans,  46  Peon.  St.  608.  As  to  grandparent,  see  Shiver  v.  Brock,  2  Jones  L.  (N. 
C.)  137. 

3  Dudley  v.  Bosworth,  10  Humph.  (Tenn.)  9.     So  also  where  the  child  pays  the 
consideration  out  of  the  parent's  funds.     Douglas  v.  Brice,  4  Rich.  Eq.  822. 

4  Same  cases. 

6  Jackson  ex  dem.  Benson  v.  Matsdorf,  11  Johns.  91 ;  Proseus  v.  Mclntyre,  5  Barb. 
424 ;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1 . 

6  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1.  The  fact  that  the  parent  took  and  re- 
tained possession  until  his  death,  was  held,  in  early  cases,  not  to  rebut  the  pre- 
sumption of  advancement.  Taylor  v.  Taylor,  1  Atk.  886 ;  Dyer  v.  Dyer,  2  Cox  Eq. 
92;  especially  if  the  child  were  a  minor.  Mumma  v.  Mumma,  2  Vern.  19.  Recently 
it  hao  been  held  that  taking  and  keeping  the  beneficial  possession  may  rebut  the 
presumption,  and  will  sustain  a  finding  of  a  trust,  notwithstanding  a  parol  declaration 
of  intent  to  constitute  an  advancement.  Stock  v.  McAvoy,  L.  R.  15  Eq.  55;  s.  o. 
6  Moak's  Eng.  711  ;  nnd  see  Dudley  v.  Bosworth,  10  Humph.  (Tenn.)  9. 

I  Bay  v.  Cook,  31  111.  336 ;  Guthrie  v.  Gardner,  19  Wend.  414  ;  Creed  v.  Lancas- 
ter Bank  (above);  compare  Kingsbury's  Appeal,  44  Penn.  St.  460. 

8  Kingsbury's  Appeal,  44  Penn.  St.  460;  Proseus  v.  Mclntyre,  5  Barb.  424,  434. 
»  As  in  Barton  v.  Rice,  22  Pick.  508,  and  Porter  v.  Porter,  61  Me.  376. 
10  Parker  v.  McCluer,  8  Abb.  Ct.  App.  Dec.  464 ;   Dugan  v.  Gettings,  8  GilL  138. 

II  Bulkeley  v.  Noble,  2  Pick,  837;    Bing.  on  Desc.  888;    Brown  T.  Brown,  16 

V  t,     1  y  I  • 

1J  Weaver's  Appeal,  63  Penn.  St.  309. 


154:  ACTIONS  BY  AND  AGAINST 

tion  of  advancement  to  that  extent.1  On  the  other  hand,  while  a 
note  given  by  a  child  to  the  parent  is  presumed  to  be  not  an  ad- 
vancement, but  a  debt,  yet  parol  evidence  is  admissible  to  show 
that  it  was  given  as  an  admission  of  an  advancement.2  The  mere 
delivery  of  money  or  chattels  is  not  presumptively  an  advance- 
ment, but  rather,  in  the  absence  of  evidence  tending  to  show  it 
was  intended  as  an  advancement,  is  presumed  to  have  been  either 
a  gift  or  loan  ; 3  or,  if  the  parent  was  indebted  to  the  child,  it  will 
be  presumed  to  have  been  intended  as  payment.4 

121.  Entries  in  account.'] — An  account  kept  by  the  donor,  in 
which  he  charges  the  sum  in  a  manner  indicating  his  intent  that 
it  is  to  take  effect  as  an  advancement,  may  be  sufficient  without  evi- 
dence that  the  donee  knew  of  the  charge.5     But  where  this  is  the 
only  evidence  of  intent,  it  is  the  better  opinion  that  the  quality 
of  advancement,  that  is  to  say  the  liability  of  the  donee  to  have 
the  gift  deducted  from  his  share  of  the  estate,  may  be  released 
by  a  cancellation  or  corresponding  credit  evincing  a  discharge, 
although  not  communicated  to  the  donee,6  as  well  as  by  conduct 
of  the  parties  treating  it  as  such.     If  the  entry  or  other  memo- 
randum be  made  in  a  form  indicating  a  gift,  or  a  loan,  or  bail- 
ment,7 parol  evidence  is  admissible  to  explain  that  it  was  intend- 
ed as  an  advancement. 

122.  Declarations  and  admissions  as  to  advancements.] — 
Whether  the  advancement  was  by  a  conveyance  made  by  the 
donor,8  or  made  by  a  third  person  on  a  consideration  moving 
from  the  donor,9  or  by  transfers  in  pais,  and  by  charges  in  ac- 
count or  other  writings,  or  by  parol,10  the  declarations  of  the 
donor  made  at  the  time  are  admissible  as  part  of  the  res  gestce^- 
although  not  competent  evidence  as  to  intent  if  the  statute  re- 
quires written  evidence.13    Subject  to  the  same  statutory  qualifi- 


1  Hanner  V.  TVinbnrn,  7  Ired.  Eq.  142.     But  a  mere  declaration  uncommunicated 
may  not  be  enough.     See  Bing.  on  Desc.  392. 

2  Tillotson  v.  Race,  22  N.  Y.  127. 

3  Bing.  on  Desc.  394,  &c.     The  fact  that  the  conveyance  was  of  real  property  en- 
hances the  presumption,  because  it  is  more  suggestive  of  the  purpose  of  permanent 
settlement.     Parks  v.  Parks,  19  Md.  323.     On  the  other  hand,  it  would  take  stronger 
evidence  to  show  that  the  gift  of  a  saddle  horse  was  an  advancement,  than  that  of  a 
stallion  kept  for  purpose  of  profit.     Ison  v.  Ison,  6  Rich.  Eq.  15. 

4  Hagler  v.  McCombs,  66  N.  C.  345. 

8  As  to  what  form  of  charge  has  this  effect,  see  Lawrence  v.  Lindsay,  6S  N.  Y. 
108.  rev'g  7  Hun,  64 1  ;  Bigelow  v.  Pool,  10  Gray,  104 ;  Bing.  on  Desc.  382,  and 
cases  cit.  His  credit  of  interest  held  competent  evidence  that  it  was  a  loan.  Peck 
v.  Peck,  21  L.  T.  N.  S.  670. 

6  Compare  Johnson  v.  Belden,  20  Conn.  322  ;  Oiler  v.  Bonebrake,  65  Penn.  St.  338. 

7  Law  v.  Smith,  2  R.  I.  244. 

8  Christy's  Appeal,   1  Grant's  Cas.  369 ;    Parks  v.  Parks,  19  Md.  323  ;    Speer  v. 
Speer,  14  N.  J.  Eq.  (1  McCarter)  240,  248. 

9  Compare  Sayles  v.  Baker,  5  R.  I.  457.        I0  Oiler  v.  Bonebrake,  65  Penn.  St.  388. 
11  Woolery  v.  Woolery,  29  Ind.  254;  Wilson  v.  Beauchamp,  50  Miss.  24;  Fellows 

v.  Little,  46  N.  II.  37,  38;   Bragg  v.  Massie,  38  Ala.  89,  106.     And  very  freely  if 
fraud  or  undue  influence  appears.     Cook  v.  Carr,  20  Md.  403. 

11  Weatherhead  v.  Field,  26  Vt.  665 ;  Bulkeley  v.  Noble,  2  Pick.  337. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        155 

cation,  the  declarations  of  the  donor,  made  before  the  transac- 
tion, are  competent  on  the  question  of  his  intent.1  Whether 
his  declarations  made  after  the  transaction  are  competent,  de- 
pends on  how  they  are  invoked  in  evidence.2  For  the  pur- 
pose of  showing  that  the  transaction  was  a  gift,  the  donor's 
declarations  are  competent  against  the  representatives,  heirs,  and 
next  of  kin,  claiming  it  to  be  an  advancement ; 3  and  for  the  pur- 
pose of  showing  either  that  it  was  a  gift  or  advancement,  they 
are  competent  against  those  claiming  it  to  have  constituted  a 
debt ;  for  in  either  case  they  are  his  admissions  against  interest, 
and  bind  those  claiming  under  him  and  in  his  right.  But  for 
the  purpose  of  showing  either  that  the  transaction  was  an  ad- 
vancement, or  that  it  was  a  debt,  his  declarations,  made  after  he 
had  parted  with  all  power  of  revocation,  are  not  competent 
against  those  who  claim  it  as  a  gift ; 4  and  for  the  purpose  of 
showing  that  it  was  a  debt,  they  are  not  competent  against  those 
who  claim  it  either  as  a  gift  or  as  an  advancement ;  for,  in  either 
case,  they  are  the  declarations  in  his  own  favor.  The  fact  that 
such  declarations  were  communicated  to  the  donee,  may,  of 
course,  rendej*  them  competent ; 5  and  they  may  also  be  admis- 
sible on  principles  previously  explained,6  when  necessary  and 
proper  to  show  his  intent  in  a  subsequent  will  referring  to  the 
advancements.7  The  donee's  declarations  or  admissions,  made  as 
part  of  the  res  gestce,  or  at  any  subsequent  time,  are  competent 
against  him  and  those  claiming  under  him.8 

123.  Value. ~\ — The  burden  of  proving  value  is  on  those  who 
claim  that  the  provision  should  be  deducted  as  an  advancement ; 9 
but  evidence  that  the  advancement  was  accepted  in  full  of  the 


1  Powell  v.  Olds,  9  Ala.  861. 

3  The  cases  may  not  explain  the  distinction  here  stated,  but  the  distinction  ex- 
plains the  cases. 

3  Phillips  v.  Chappell,  16  Geo.  16  ;  Johnson  v.  Belden,  20  Conn.  322;  Note  in  13 
Moak's  Eng.  700.     Contra,  Bing.  on  Desc.  404. 

4  Sanford  v.  Sanford,  5  Lans.  486,  s.  c.  61  Barb.  293 ;  Hatch  v.  Straight,  3  Conn. 
81.    Contra,  Rollins  v.  Strout,  4  Nev.  150.    Compare  Law  v.  Smith,  2  R.  I.  244  ;  Peck  v. 
Peck,  21  L.  T.  N.  S.  670.     A  debt  barred  by  the  statute  of  limitations  cannot,  by  the 
decedent's  declarations  alone,  be  converted  into  an  advancement.   Bing.  on  DL-SC.  363. 

6  Yuudt's  Appeal,  13  Penn.  St.  575. 

6  Paragraphs  111  (above)  and  124  (below). 

1  Tillotson  v.  Race,  22  N.  Y.  126.  A  security  which  cannot,  under  the  statute, 
be  proved  to  represent  an  advancement,  may  be  made  such  by  a  provision  in  the  will. 
Bacon  v.  Gassett,  13  Allen,  337.  Whether  the  decedent's  transactions  with  the 
other  heirs  apparent  are  relevant  on  the  question  of  his  intention  in  the  transaction 
with  the  one  claiming  a  gift,  compare  Bulkeley  v.  Noble,  2  Pick.  837 ;  Weaver's  Ap- 
peal, 63  Penn.  St.  309. 

8  Christy's  Appeal,  1  Grant's  Cas.  369 ;  Speer  v.  Speer,  14  N.  J.  Eq.  (1  McCarter) 
240,  248 ;    Law  v.  Smith,  2  R.  I.  244.     Debts  by  the  husband  of  the  decedent'8 
daughter  cannot  be  changed  into  advancements  as  against  her,  merely  by  her  ad- 
mission that  "this  we  owe  to  father  honestly."    Yundt's  Appeal,  13  Pa.  St.  675.     A 
judgment  or  decree,  in  n  suit  for  settlement  of  the  estate,  fixing  the  character  and 
amount  of  advancements,  is  conclusive  in  a  subsequent  action  between  the  same  par- 
ties, or  those  in  privity  with  them,  as  to  realty.     Torrey  v.  Pond,  102  Mass.  355. 

9  See  Bell  v.  Champlain,  64  Barb.  396. 


156  ACTIONS  BY  AND  AGAINST 

donee's  share  throws  on  the  donee  the  burden  of  proving  that 
the  value  was  less  than  his  share.1  The  value  may  be  conclusive- 
ly fixe.d  by  an  acknowledgment  in  writing,2  or  it  may  be  made 
immaterial  by  a  conclusive  release  of  all  interest  in  the  estate, 
given  upon  receiving  the  advancement.8  If  the  advancement 
was  made  by  a  deed  expressing  a  pecuniary  consideration,  that 
sum  may,  by  extrinsic  evidence,  be  shown  to  be  the  value.4  If 
the  donor  put  a  value  on  the  advancement,  in  the  transaction  it- 
self, it  excludes  evidence  of  greater  value,9  but  not  evidence  of 
less  value.6  If,  however,  .  a  value  was  fixed  by  agreement 
with  the  donee  (the  acknowledgment  being  in  writing  if  the  stat- 
ute so  require),  it  excludes  evidence  of  less  value.  Where  act- 
ual value  is  to  control,  value  at  the  time  of  the  transfer  is  to  be 
proved,  and  without  interest.7 

124.  Testamentary  clauses  as  to  advancements.'] — Where  the 
will  refers  to  money  bequeathed  as  being  already  in  possession  of 
the  donee,  the  burden  is  upon  those  alleging  satisfaction  to  show 
that  the  possession  continued,  at  least  if  the  beneficiary  is  one 
who  might  be  presumed  to  have  held  possession  as  the  testator's 
agent.8  Where  the  will  refers  to  entries  or  memoranda,  or  other 
unattested  papers  previously  made  or  subsequently  to  be  made, 
to  ascertain  the  advancements,  the  documents  so  identified  are 
competent  evidence,9  and  so,  also,  if  it  releases  securities  taken 
from  the  beneficiaries.10  If  the  entries  or  securities  thus  referred 
to  do  not  bear  evidence  on  their  face  that  the  sums  were  intended 
as  advancements,  extrinsic  evidence  is  competent u  and  necessary,13 
to  establish  the  donor's  intent  to  make  them  such. 


XII.    TITLE,  AND  DECLARATIONS,  OF  ANCESTOR,  HEIE,    &c. 

125.  Ancestor's  title,  and  Successor's  election.'] — At  common 
law  the  heir  must  produce  evidence  that  the  ancestor  was  actual- 
ly seized,13  that  is  to  say  had  legal  title,  and  also  actual  possession 


1  Parker  v.  McCluen,  3  Abb.  Ct.  App.  Dec.  464. 

2  1  N.  Y.  R.  S.  754,  §  25. 

3  Quarles  v.  Quarles,  4  Mass.  680 ;    Kenney  v.  Tucker,  8  Id.  143 ;    Bing.  on  Desc. 
391. 

4  Meeker  v.  Meeker,  16  Conn.  388. 
6  Meeker  v.  Meeker,  16  Conn.  383. 

6  See  Marsh  v.  Gilbert,  2  Redf.  Surr.  R.  465. 

7  Bing.  on  Desc.  407,  408,  and  cases  cited. 

8  Enders  v.  Endera,  2  Barb.  362. 

9  Whateley  v.  Spooner,  3  Kay  A  J.  542;  and  see  Langdon  v.  Astor,  16  N.  Y.  9, 
reVg  3  Duer,  477. 

™  See  Chase  v.  Ewing,  51  Barb.  597 ;  Luqueer's  Estate,  1  Tuck.  236 ;  Tillotson  v* 
Race,  22  N.  Y.  122. 

11  Tillotson  v.  Race  (above). 

12  Lawrence  v.  Lindsay,  68  N.  Y.  108,  rev'g  7  Hun,  641. 

13  Jackson  v.  Hendricks,  2  Johns.  Caa.  214 ;  Whitney  v.  Whitney,  14  Mass.  88. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        157 

or  its  equivalent 1  thereunder.  If  the  title  of  the  ancestor  was 
acquired  by  "  purchase  "  (including  devise),  proof  of  legal  title 
raised  a  sufficient  presumption  of  seizin  in  fact,2  but  if  by.descent 
some  evidence  01  seizin  in  fact  was  required.3  The  present 
common  law  rule  generally  is  that  seizin  in  law  is  sufficient  to 
establish  dower,  but  that  seizin  in  fact  is  necessary  to  establish 
curtesy.4  The  subject  is  now  generally  regulated  by  statutes  de- 
fining descendible  and  devisable  property  in  a  way  to  dispense 
with  the  necessity  of  actual  seizin ; 5  and  possession  in  the  ancestor 
is  not  now  usually  an  essential  part  of  the  evidence  to  prove 
mere  title  by  descent,  except  in  those  cases  where  possession  un- 
der claim  01  title  is  relied  on  as  constituting  the  right  or  the  evi- 
dence of  it.  No  evidence  of  acceptance  by  the  heir,  of  title  to 
lands  descended,  is  necessary.  '  The  law  casts  it  upon  him  with- 
out his  consent.8  A  title  by  deed  or  devise,  requires  the  assent 
of  the  successor  in  interest,  express  or  implied,  to  effect  the  trans- 
fer.7 But  the  law  presumes  the  acceptance  of  a  beneficial  devise, 
and  it  is  doubted  whether  a  parol  disclaimer  is  binding.8  Where 
the  right  of  one  entitled  by  succession  depends  upon  an  election, 
and  no  express  election  is  shown,  nor  any  positive  act  or  declara- 
tion manifesting  such  election,  an  election  may  be  presumed  from 
the  circumstances  of  benefit  and  silence.9  Under  the  statute  de- 
claring the  widow  to  be  deemed  to  have  accepted  a  provision  in 
lieu  01  dower,  unless  she  proceeds  for  dower  within  a  year  after 
the  husband's  death,  it  is  not  necessary  that  the  devisees  and 
grantees  should  prove  that  she  had  notice  of  the  will.10 

126.  Declarations  and  admissions  of  the  Ancestor  as  to  Title, 
(&c.~] — Declarations  made  while  in  possession  of  real  estate,  by  an 
ancestor,  since  deceased,  indicating  the  source  of  his  title,  and 
the  fact  that  the  one  under  whom  he  claimed  had  been  in  posses- 
sion, may  be  proved  by  witnesses  who  heard  them,  as  evidence 
against  his  heirs  and  devisees.11  Thus,  admissions  by  a  person, 
that  the  conditions  upon  the  failure  of  which  his  title  and  right 
of  action  depended  have  been  performed,  are  admissible  in  evi- 
dence in  an  action  prosecuted  by  the  heirs  of  the  person  making 


I  Such  as  possession  by  a  tenant  of  less  than  a  freehold.     Bushby  v.  Dixon,  3 
Barnw.  <fe  C.  306  ;  or  possession  of  one  of  seVeral  parcels.     Green  v.  Liter,  8  Cranch, 
245. 

*  Wendell  v.  Crandall,  1  N.  Y.  491. 

3  Id. 

4  1  Bish.  Man.  W.  §  496. 

8  1  N.  Y.  R.  S.  751,  §§  1,  27  (6th  ed.  voL  2,  p.  1136) ;    2  Id.  67,  §  2  (6th  ed.  vol. 
3,  p.  67). 

6  8  Washb.  R.  P.  4th  ed.  6  (4);  and  see  Mumford  v.  Bowman,  26  La.  Ann.  418. 

7  3  Washb.  R.  P.  4th  ed.  6  (4). 

8  Id.  642,  citing  Tole  v.  Hardy,  6  Cow.  340 ;  2  Pet.  6567. 

•  Merrill  v.  Emery,  10  Pick.  507,  SHAW,  Ch.  J. 

)0  1  N.  Y.  R.  S.  742,  §  14 ;  Palmer  v.  Voorhis,  35  Barb.  479. 

II  Endera  v.  Sternbergh,  2  Abb.  Ct.  App.  Dec.  31,  rev*g  62  Barb.  222. 


158  ACTIONS  BY  AND  AGAINST 

the  admissions,  by  reason  of  the  privity  between  them.1  But  the 
declarations  of  the  ancestor  in  favor  of  his  title,  are  not  admissi- 
ble for  any  one  claiming  under  him,2  unless  brought  within  the 
rule  of  the  res  gestce*  or  brought  home  to  the  other  party.  Upon 
these  principles  the  declarations  made  by  a  person  in  possession 
of  Jand,  tending  to  show  the  character  of  his  possession,  and  by 
what  title  he  claimed,4  if  made  while  both  holding  possession  and 
title,5  although  it  may  be  after  he  had  contracted  to  convey,6  are 
competent.  But  parol  declarations  or  admissions,  since  they  can, 
not  confer  or  divest  title,7  are  not  admissible  as  evidence  of  title, 
either  to  sustain  the  burden  of  proof  of  title,  or  to  rebut  prima 
facie  evidence,8  but  only  to  show  the  nature  and  extent  of  the 
possession  and  the  character  and  quality  of  the  claim  of  title  un- 
der which  it  was  held,9  or  other  material  facts  resting  in  pais, 
such  as  may  affect  the  question  of  title, — for  instance,  the  time, 
or  the  absolute  or  conditional  character,  of  the  delivery  of  a 
deed,10  or  a  disclaimer  of  title  made  at  a  judicial  sale  under  cir- 
cumstances constituting  an  estoppel,11  or  that  the  deed  to  the 
declarant  was  fraudulent,12  or  the  existence  and  loss  of  a  will,13  or 
other  facts  inconsistent  with  his  claim  of  title.14  So  to  prove 
the  ancestor's  parol  agreement  to  convey  (which  has  been  exe- 
cuted on  the  part  of  the  purchaser)  his  parol  declarations,  may 
be  proved  by  a  witness.15  A  recital  in  the  will,  that  the  testator 
had  executed  a  deed  to  the  defendant,  is  evidence  against  his 
heirs,  of  a  perfect  execution  of  such  deed,  and  of  the  title  in  the 
grantee.16  But  where  a  will  is  introduced  in  evidence  as  contain- 


1  Spaulding  v.  Hallenbeck,  35  N.  Y.  204 ;  affi'g,  39  Barb.  79  ;  compare  Savage  v. 
Murphy,  8  Bosw.  75,  affi'd  in  34  N.  Y.  508. 

2  Smith  v.  Martin,  17  Conn.  399  ;  Hurlburt  v.  Wheeler,  40  N.  H.  73. 

3  As  to  what  are  competent  within  the  rule  of  res  gestce,  compare  Meek  v.  Perry, 
•86  Miss.  190,  259;  Baker  v.  Haskell,  47  N.  H.  479  ;   Hood  v.  Hood,  2  Grant  Penn. 
Cas.  229  ;  Fellows  v.  Fellows,  37  N.  H.  78,  85 ,  Smith  v.  Batty,  11  Gratt.  752,  761. 

4  3  Abb.  N.  Y.  Digest,  2d  ed.  123. 
6  Vrooman  v.  King,  36  N.  Y.  477. 

6  Chadwick  v.  Fonner,  16  Alb.  Law  J.  431.      Testator's  declarations  made  after 
executing  the  will,  and  adverse  to  his  title,  are  held  not  admissible  against  those 
claiming  under  the  will,  upon  this  principle,  because  they  do  not  affect  his  interest. 
Boylan  ads.  Meeker,  4  Dutch.  274;   and  see  Jackson  v.  Kniffen,  2  Johns.  31;   1 
Redf.  on  Wills,  3d  ed.  539,  note. 

7  Proof  that  an  intestate  stated  in  his  life-time,  that  he  did  not  own  any  interest 
in  certain  land,  that  he  had  sold  out,  and  that  he  allowed  others  to  deal  with  the  land 
as  their  own,  is  not  evidence  sufficient  to  sustain  an  allegation  in  a  complaint  against 
the  administrator,  that  the  intestate  executed  and  delivered  deeds  of  the  land.    It 
seems  such  evidence  is  inadmissible  until  it  be  shown  that  a  conveyance  of  the  land 
had  been  in  fact  executed  and  lost.     Thompson  v.  Lynch,  29  Col.  189. 

8  See  Jackson  v.  Cole,  4  Cow.  587 ;  Walker  v.  Dunspaugh,  20  IN  .  Y.  170. 
8  Jackson  v.  McVey,  15  Johns.  234. 

10  Keaton  v.  Dimmick,  46  Barb.  158;  Varrick  v.  Briggs,  6  Paige,  323  ;  22  Wend, 
643.     Compare  Baker  v.  Haskell,  47  N.  H.  479. 

11  Mattoon  v.  Young,  45  N.  Y.  696. 

»  Naughton  v.  Pettibone,  7  Conn.  319. 

13  Fetherly  v.  Waggoner,  11  Wend.  (N.  Y.)  699. 

14  Rogers  v.  Moore,  10  Conn.  13. 

15  Knapp  v.  Hungerford,  7  Hun,  588,  and  cases  cited. 
"  Smith  v.  Wait,  4  Barb.  28. 


HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        159 

ing  such  an  implied  admission  of  title  in  a  stranger,  the  declara- 
tions of  the  testator,  at  the  time  of  its  execution,  in  relation  to  it, 
are  admissible  as  part  of  the  res  gestce.1 

127.  Declarations  of  third  persons.] — Evidence  of  the  acts 
and  declarations  of  third  persons,  when  in  possession  of  the  lands, 
are  competent  to  prove  the  continued  possession  under  the  will-.2 

128.  Declarations  of  successors,  representatives  and  benefici- 
aries.']— The  admissions  or  acts  of  the  executor  or  administrator, ' 
unless  made  so  by  statute,3  are  not  competent  evidence  against  the 
heir  or  devisee.4    A  mere  common  interest  will  not  make  the  con- 
fessions of  one  person  evidence  against  another, — a  joint  interest 
in  possession  is  necessary.5    Hence  the  declarations  of  the  ex- 
ecutors or  administrators  are  not  competent  against  any  other 
parties  who  have  not  a  joint  interest,  and  do  not  stand  in  a  rela- 
tion of  privity.6     Conversely,  the  admission  of  an  heir  cannot 
prejudice  the  executor.7    And  in  the  case  of  several  heirs,8  and 
equally  in  the  case  of  beneficiaries  under  the  same  will,  if  their 
interests  are  several,  not  joint,9  evidence  of  the  admissions  and 
declarations  of  one  is  not  competent  against  the  other.     The 
principle  is  that  a  common  interest  is  not  enough,  but  a  joint  in- 
terest,—as  where  both  claim  under  a  contract  naming  them  as 
beneficiaries, — may  be.10    The  declarations  and  admissions  of  one 


1  Testator  devised  lands  to  defendant,  and,  in  the  same  will,  gave  legacies  to 
plaintiffs,  on  condition  that  they  release  all  their  right,  <fec.,  to  the  lands  devised. 
Held,  that  defendants  could  give  parol  evidence  of  testator's  contemporaneous  declar- 
ations, that  the  condition  was  not  an  admission  of  such  title,  but  only  by  way  of  cau- 
tion against  an  unfounded  claim.     The  devisees  were  not  a  party  to  the  legacy,  nor 
did  they  claim  under  it  within  the  rule.     Clark  v  Wood,  34  N.  H.  447,  452. 

2  Jackson  v.  Van  Dusen,  5  Johns.  144.     To  raise  a  presumption  that  A.  or  his  ex- 
ecutors anciently  conveyed  away  land,  which  his  heirs  sue  to  recover,  from  a  mere 
possessor,  after  many  years'  neglect  to  claim,  the  defendant  may  prove  deeds  between 
third  persons  of  adjoining  land  describing  the  land  in  question  as  the  property  of 
others  than  A.,  and  may  adduce  the  testimony  of  a  witness  that  he  had  known  the 
lands  for  upwards  of  40  years,  and  the  general  repute  as  to  their  ownership,  and 
that  he  never  heard  of  any  claim  of  title  by  or  under  A.     Schauber  v.  Jackson,  2 
Wend.  19,  20. 

'  Regan  v.  Grim,  13  Penn.  St.  608,  513. 

4  Mooers  v.  White,  6  Johns.  Ch.  360;  Baker  v.  Kingsland,  10  Paigo,  366. 

5  Osgood  v.  Manhattan  Co.  3  Cow.  612. 

8  Shailer  v.  Bumstead,  99  Mass.  112.  The  declarations  and  admissions  of  the  sole 
executor,  he  being  a  party  in  interest  and  a  party  to  the  record,  were  held  admissible 
against  him  and  those  represented  by  him,  on  the  question  of  fraud  or  undue  influ- 
ence, in  Davis  v.  Calvert,  5  Gill.  <fe  J.  269. 

7  2  Whart.  Ev.  8  1199,  a.     And  it  has  been  held  that  the  declarations  of  the  lega- 
tee against  the  validity  of  the  will  are  not  competent  against  the  executor.     Dillard 
v.  Dillard,  2  Strobh.  L.  89. 

8  Osgood  v.  Manhattan  Co.,  3  Cow.  612,  rev'g"15  Johns.  162. 

9  1  Bright.  Penn.  Dig.  962,  and  cases  cited. 

10  P.  189.  So.  L.  Ins.  Co.  v.  Wilkinson,  53  Geo.  535.  Contra,  Milton  v.  Hunter,  4 
Law  <fe  Eq.  R.  336.  The  rule  of  exclusion  stated  in  the  text,  while  applicable  un- 
qualifiedly on  probate  where  the  issue  is  not  as  to  the  right  of  any  one  party,  but  as 
to  the  validity  of  the  will,  as  an  entirety,  may  be  thought  subject  to  qualification  in 
civil  actions  affecting  only  the  parties  to  the  record  and  specific  property.  In  such 
cases  it  may  be  proper  to  admit  the  evidence  against  the  declarant,  if  none  of  the 


160  ACTIONS  BY  AND  AGAINST 

of  several  joint  legatees  or  devisees,  showing  fraud  or  undue  in- 
fluence by  them,  is  competent  against  both/  In  the  case  of  a 
combination  by  several  persons  to  procure  the  making  of  the  will, 
the  separate  admissions  of  either  are  competent  against  the  others,2 
unless  made  after  they  have  ceased  co-operation,  in  which  case 
they  are  not.3 

129.  Judgments."} — A  judgment  or  verdict  for 4  or  against 6 
the  ancestor  is  competent  evidence  for  or  against  the  heir  m  con- 
troversies relating  to  the  inheritance.  A  judgment  or  verdict 
for 6  or  against 7  an  executor  or  administrator  is  never  conclusive 
against  the  heirs  or  devisees  ;  and  a  judgment  or  verdict  against 
the  heir  or  devisee  is  not  conclusive  against  the  executor  or  ad- 
ministrator.8 A  judgment  or  verdict  against  the  executor  or  ad- 
ministrator is  not  even  competent  evidence  against  the  heir  or 
devisee,  as  evidence  of  the  existence  of  the  debt  or  other  facts 
established  thereby.9  A  judgment  or  verdict  for  or  against  the 
heirs  does  not  bind  the  devisees,10  nor  conversely.  A  judgment 
in  an  action  under  the  statute  to  charge  an  heir  with  the  debt  of 
the  ancestor  necessarily  determines  the  title  of  the  ancestor,  as 
against  the  parties  to  the  action  and  those  claiming  under  them, 
and  is  conclusive  on  them  as  to  that  question.11  A  judgment  in 
a  suit  by  a  legatee  on  behalf  of  himself  and  all  others  who  might 
come  in,  &c.,  is  not  conclusive  on  infant  legatees  who  did  not 
come  in.12 


others  having  an  interest,  who  are  parties  to  the  record,  are  litigating  the  question, 
or  if  there  is  other  evidence  which,  as  matter  of  law,  is  sufficient  to  establish  the 
fact  as  against  them.  This  distinction  may  explain  something  of  the  conflict  of  the 
cases.  Compare  Nessar  v.  Arnold,  13  Sergt.  &  Rawle,  323 ;  Clark  v.  Morrison,  25 
Penn.  St.  452  ;  Morris  v.  Stokes,  21  Geo.  Rep.  652 ;  Blakey's  Heirs  v.  Blakey's  Ex- 
ecutors, 33  Ala.  611. 

1  Horn  v.  Pullman,  10  Hun,  471. 

2  Lewis  v.  Mason,  109  Mass.  169. 

3  Shailer  v.  Bumstead,  99  Mass.  112. 

4  Lock  v.  Norbone,  3  Mod.  142. 
6  Freeman  on  Judgments,  §  168. 
6  Dale  v.  Roosevelt,  1  Paige,  35. 

17  McCoy  v.  Nichols,  4  How.  (Miss.)  31 ;  Vernon  v.  Valk,  2  Hill  Ch.  257 ;  Collin- 
son  v.  Owens,  6  Gill.  &  J.  4 ;  Robertson  v.  Wright,  17  Gratt.  534 ;  Early  v.  Gar- 
land, 13  Id.  1.  Except,  perhaps,  where  the  executor  is  the  sole  devisee  of  the  real 
estate.  Stewart  v.  Montgomery,  23  Penn.  St.  410;  or  where  he  represents  him  as 
trustee,"  within  the  settled  principles  of  the  law  of  trusts. 

8  Dorr  v.  Stockdale,  19  Iowa,  269;  Combs  v.  Tarlton's  Admr.  2  Dana,  464. 

8  Kent  v.  Kent,  62  N.  Y.  560,  and  cases  cited;  Robertson  v.  Wright,  17  Gratt. 
534;  Laidley  v.  Kline,  8  W.  Va.  218,  230.  Contra,  Harvey  v.  Wilde,  L.  R.  14  Eg. 
C.  438,  s.  c.  3  Moak's  Eng.  811.  Compare  Early  v.  Garland,  13  Gratt.  1 ;  Garnett  v. 
Macon,  6  Call.  308,  337. 

10  Cowart  v.  Williams,  34  Geo.  167. 

11  Hudson  v.  Smith,  39  Super.  Ct.  (J.  <fe  S.)  462.     A  judgment  for  or  against  the 
heir  not  as  such,  but  in  his  individual  character,  has  been  held  not  a  bar  against  him 
when  he  appears  "  as  heir."    Jennings  v.  Jones,  2  Redf.  Surr.  95.     See,  also,  Rath- 
bone  v.  Hooney,  58  N.  Y.  463 ;  Sharpe  v.  Freeman,  45  N.  Y.  802,  affi'g  2  Lans.  171. 

12  Brower  v.  Bowers,  1   Abb.  Ct.  App.  Dec.  214 ;  compare  Kerr  v.  Blodgett,  48 
N.  Y.  62. 


' 

HEIRS  AND  NEXT  OF  KIN,  DEVISEES  AND  LEGATEES.        161 
V 

XIII.  ACTION  TO  CHARGE  HEIE,  NEXT  OF  KIN,  &c.,  WITH 
ANCESTOR'S  DEBT.  < 

130.  Material  facts.] — In  an  action  against  heirs  or  next  of 
kin,  on  a  debt  of  the  ancestor,  the  plaintiff  must  allege1  and 
prove,  affirmatively,  a  case  within  the  provisions  of  the  statute 
which  creates  the  right  of  action.8     His  failure  to 'prove  every- 
thing that  the  statute  demands,  IB  sufficient  to  prevent  a  recov- 
ery.3   He  must  show  the  granting  of  letters;4  that  his  action  is 
brought  after  three  years  from  the  grant  of  letters ; 5  that  <ife- 
fendant  inherited  real  property  by  descent,  or  acquired  real  or 
personal   property  under  the  decedent's  will,  or  the  statute  of 
distributions ;  and  that  the  decedent  left  no  personal  property 
within  the  State,  or  that  'the  same  was  insufficient  to  pay  the 
debt,  or  that  the  debt  could  not  be  collected  by  due  proceedings 
before  the  proper  surrogate,  and  at  law,  from  the  personal  repre- 
sentatives of  the  decedent,  nor  (if  the  action  is  against  the  heir) 
from  the  next  of  kin  or  legatees.6 

131.  Mode  of  proof. .] — The  lapse  of  time  since  administration 
granted  cannot  create  any  presumption  as  to  the  statute  condi- 
tions.7    The  acts  or  admissions  of  executors,  &c.,  of  insolvency 
of  the  decedent,  are  not  evidence  against  heirs  or  devisees,  even 
to  bind  the  lands  descended  or  devised.8     A  judgment  against 
the  executor  or  administrator  is  not  evidence  in  the  statutory 
action  against  the  decedent's  heir,  next  of  kin,  or  legatee,  to  prove 
the  existence  of  the  claim  or  demand ; 9   but  the  claim  being  es- 
tablished by  evidence  aliunde,  the  record  is  evidence  that  an  ac- 
tion has  been  brought    within  the  time  allowed  by  law,  and  a 
judgment    recovered    thereon,  and  is  conclusive  evidence  that 
there  is  no  bar,  under  the  statute,  of  the  claim  as  against  the  per- 
sonal representatives,  available  to  the  defendant.1"  *And  if  the 
judgment  is  less  than  the  debt  claimed,  and  there  is  evidence  of 
the  identity  of  the  debt  with  the  cause  of  action  in  judgment, 
the  judgment  is  conclusive  against  the  plaintiff  as  a  limit  of  the 
amount  of  his  recovery.11    The  return,  unsatisfied,  of  execution 
against  the  executor  or  administrator,  is  not  sufficient  proof  of 
want  of  assets,  for  there  may  have  been  a  misappropriation  of 

I  Renard  v.  West,  48  Ind.  159. 

J  Mersereau  v.  Ryerss,  3  N.  Y.  261. 
8  Selover  v.  Coe,  63  N.  Y.  443. 
4  Ro,e  v.  Sweezey,  10  Barb.  251. 
8  Id. ;  Selover  v.  Coe  (above). 

6  Armstrong  v.  Wing,  10  Hun,  520;    63  N.  Y.  438;    Roe  v.  Sweezey  (above) ; 
Stuart  v.  Kissum,  11  Barb.  282. 
'  Armstrong  v.  Wing  (above). 

8  Oagood  v.  Manhattan  Co.  3  Cow.  612,  rev'g  15  Johns.  162. 

9  Sharpe  v.  Freeman,  45  N.  Y.  802.     Contra,  Steele  v.  Linebergher,  59  Penn.  St 
308  ;  Stone  v.  Wood,  '16  111.  177,  182. 

10  Kent  v.  Kent,  62  Id.  660,  rev'g  3  Supra.  Ct.  (T.  <fe  C.)  630. 

II  Rockwell  v.  Geery,  4  HUD,  611,  s.  c.  6  Supm.  Ct.  (T.  &  C.)  687. 

11 


162        ACTIONS  BY  AND  AGAINST  HEIRS,  NEXT  OF  KIN,  Ao. 

assets,  for  which  the  remedy  is  by  accounting.1  But  if  it  be 
shown  that  an  accounting  has  been  prosecuted,  the  fact  that  there 
are  unrealized  assets,  or  that  assets  have  come  to  the  hands  of  the 
representative  since  the  commencement  of  the  present  action,  is 
not  a  bar,  nor  does  it  necessarily  reduce  the  recovery,2  but  may 
restrain  enforcement  of  the  judgment. 


1  Wambaugh  v.  Gates,  11  Paige,  515 ;  Stoart  v.  Kissam,  11  Barb.  23i. 
*  Rockwell  v.  Geery  (above). 


. 


CHAPTEE  VI. 

ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 


I.  GENERAL  PRINCIPLES. 

1.  Marriage. 

2.  Foreign  law. 

3.  Competency  of  husband  or  wife  &» 

witness. 

4.  Their  admissions  and  declarations. 
6.  Agency  of  one  for  the  other. 

6.  Estoppel. 

7.  Judgments. 

8.  Evidence  of  husband's  title. 

9.  Evidence  of  wife's  title. 

10.  Evidence  of  transfer  by  one  to  the 

other. 

11.  Tacit  transfers. 

12.  —  the  old  rule. 

13.  —  the  new  rule. 

14.  Evidence  of  his  application  of  her 

funds. 

15.  Evidence  of  her  conveyance. 

1 6.  Impeaching  her  conveyance. 

17.  Evidence  of  wife's  separate  busi- 

ness. 

II.  ACTIONS  BY  OR  AGAINST  HUSBAND. 

18.  Action  by  him  founded  on  marital 

right. 

19.  Defenses. 

20.  Action  against  him    founded    on 

marital  obligation. 


II.  ACTIONS  BT  OR  AGAINST  HUSBAND — con- 
tinued. 

21.  Actions  against  him  founded  on 

her  agency. 

22.  Defenses. 

23.  Action  for  necessaries. 

24.  Defenses. 

25.  Causes  of  separation. 


III.    ACTIONS   BY    A   MARRIED   WOMAN. 

26.  Her  pleading  in  her  action  on  con- 

tract. 

27.  Evidence  of  the  contract. 

28.  Her  action  for  tort. 


IV.  ACTIONS  AGAINST  HER. 

29.  Pleading  in  action  against  her  oa 

contract. 

30.  Evidence  of  the  contract. 

31.  The  making  of  the  contract. 

32.  The  English  rule  as  to  charging 

the  separate  estate. 

83.  The  New  York  rule. 

84.  —  direct  benefit  to  separate  estate. 

85.  Action  against  her  for  necessaries. 

36.  —  for  fraud. 

37.  Husband's  coercion  of  wife. 


I.  GENERAL  PRINCIPLES.1 

1.  Marriage.'] — In  all  civil  actions  and  proceedings  affecting 
only  questions  of  property  or  torts,  not  involving  any  question 


1  The  statutes  of  the  State  should  be  carefully  consulted  in  connection  with  the 
statements  in  this  chapter.  Unless  such  a  statute  imposes  a  different  rule,  the  general 
principle  may  be  followed, 'that,  except  in  divorce  and  crim.  con., and  in  certain 
cases  of  confidential  communication,  the  marital  relation  does  not  affect  the  compe- 
tency of  evidence,  but  it  does  often  affect  its  weight,  because  it  gives  ri?e  to  certain 
presumptions  as  to  matters  within  the  sphere  of  marital  influence ;  and,  in  conse- 
quence, affirmative  evidence  is  in  some  cases  necessary,  when  in  the  case  of  siuir'e 
persons,  a  presumption  would  be  allowed  without  evidence ;  and,  in  some  cases,  evi- 
dence is  inadequate  which  would  be  adequate  in  the  case  of  single  persons.  In  other 
words,  to  the  extent  in  which  modern  statutes  have  removed  civil  disabilities  of  the 
wife,  the  same  rules  of  competency  apply  to  the  transactions  and  the  testimony  of  hus- 
band and  wife,  as  apply  to  those  of  other  persona.  But  the  marital  relation  remains, 
and  to  the  extent  in  which  the  conduct  of  either  is  had  within  its  sphere,  the 

[163] 


164:  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

of  marital  infidelity,  marriage  may  be  proved  either  by  direct 
evidence,  or  by  evidence  of  cohabitation  and  repute,  or  cohabita- 
tion and  declarations,  in  the  manner  stated  in  the  last  chapter.1 

2.  Foreign  Law.~\ — The  generally  received  rule  is  that  the 
original  title  of  husband  or  wife  to  movables  is  controlled  by 
the  law  of  place  which  was  their  domicile  at  the  tune  of  the  ac- 
quisition ;  the  validity  of  their  transactions,  except  as  to  realty, 
may  be  sustained  by  the  law,  either  of  the  place  of  the  transac- 
tion, or  of  the  place  fixed  on  by  the  contract  for  its  performance, 
or  of  their  domicile  at  the  time  of  the  transaction,  unless  the  act 
was  forbidden  by  positive  law  of  either  place ;  and  the  title  to 
realty  and  the  validity  of  transactions  affecting  it,  are  controlled 
by  the  law  of  the  place  where  the  realty  is  situated.    Domicile  is 
to  be  proved  in  the  mode  stated  in  the  last  chapter.2    The  courts 
of  a  State  do  not  take  judicial  notice  of  the  law  of  husband  and 
wife  in  other  States ;  and  a  party  who  desires  to  rely  on  such  law 
should  be  prepared  to  prove  it  as  matter  of  fact.     In  the"  absence 
of  such  proof,  if  the  question  turns  on  the  law  of  a  State  deriv- 
ing its  jurisprudence  from  England,  the  court  may  apply  the 
rules  of  the  old  common  law : 3  if  on  the  law  of  any  other  State, 
the  court  will  apply  the  law  of  the  forum.4    By  whatever  law 
the  right  is  determined,  the  form  of  the  remedy  and  the  compe- 
tency of  evidence,  are  governed  by  the  law  of  the  forum.5 

3.  Competency  f>f  Husband  or  Wife  as  Witness.'] — The  New 
.York  statute  provides  that  no  person  shall  be  excluded  or  ex- 
cused6 from  being  a  witness  because  he  or  she  is  the  husband  or 


influence  of  that  relation  is  recognized  by  the  law  as  an  element  of  great  impor- 
tance, iii  estimating  the  just  weight  of  facts  as  evidence,  and  the  natural  presump- 
tions resulting.  Thus  the  law  recognizes  and  draws  presumptions  from  the  natural 
disposition  of  a  husband  to  make  provision  for  his  wife ;  her  disposition  to  be  silent, 
or  even  acquiescent,  for  the  sake  of  peace,  in  the  face  of  his  wrongful  conduct  toward 
others,  or  toward  herself  or  her  separate  property  rights;  the  natural  disposition  of 
each,  without  claim  or  admission  of  transfer  or  compensation,  to  hold  and  allow 
the  holding  of  the  exclusive  property  of  one,  in  the  use  or  safe-keeping  of  the  other ; 
and  the  peculiar  facility  which  the  relation  affords  for  undue  influence,  particularly 
over  the  wife,  and  for  the  transfer  to  her  of  property  in  fraud  of  the  husband's  cred- 
itors. The  rules-stated  in  the  text  are  founded  chiefly  on  these  principles,  which  are 
almost  universally  recognized,  although  in  their  application  some  disagreement  of 
authority  still  exists  in  the  several  States. 

1  Chap.  V,  paragraphs  14-23.  8"Chap.  V,  paragraphs  61-57. 

8  For  these  rules,  see  1  Bish.  Mar.  W, ;  Swell's  Cas.  The  traditional  rule  ia  that 
the  courts  must  do  so.  See  Waldron  v.  Ritchings,  9  Abb.  Pr.  N.  S.  359,  s.  c.  8  Daly, 
288.  But  the  changes  in  the  law  on  this  subject  are  so  general  and  so  nearly  uni- 
form in  substance  in  the  States  deriving  their  jurisprudence  from  England,  that  the 
courts  sometimes  hesitate  to  declare  void  transactions  that  are  valid  by  the  law  of 
the  forum,  and  naturally  presumable  to  be  so  by  the  law  of  the  sister  State,  but  for  thia 
rule.  See  Worthington  v.  Ilanna,  23  Mich.  530;  Adams  v.  Honness,  62  Barb.  326. 

4  Savage  v.  O'Neil,  44  N.  Y.  298,  rev'g  42  Barb.  374. 

•  Stoneman  v.  Erie  Rw.  Co.  52  N.  Y.  429,  affi'g  Buff.  Super.  Ct.  (1  Sheld.)  286. 

8  The  common  law  entire  disqualification  could  not  be  legally  waived  by  consent. 
2  Kent's  Com.  178;  Parker  v.  Sir  Woolston  Dixie,  (\  T.  Hardw.  264,  49  N.  Y.  610; 
Dwelley  v.  Dwelley,  46  Me.  377;  Bevins  v.  Cline,  21  Ind.  87;  Barbat  v.  Allen,  16 
Jur.  338,  8.  o.  10  Eng.  L.  &  Eq.  696 ;  Pedley  v.  Wellesley,  3  Car.  &  P.  558.  But  was 
frequently  waived  in  practice.  And  in  some  later  cases  a  waiver  waa  held  legal; 


ACTIONS    BY   OR  AGAINST  HUSBAND  OR  WIFE.  165 

wife  of  a  party,  or  of  a  person  in  whose  behalf  the  action  or 
special  proceeding  is  brought,  prosecuted,  opposed,  or  defended.1 
The  following  exceptions,  however  are  made  : 2  "A  husband  or 
a  wife  is  not  competent  to  testify  against  the  other  upon  the  trial 
of  an  action,  or  the  hearing  upon  the  merits  of  a  special  proceed- 
ing founded  upon  an  allegation  of  adultery,  except  to  prove  the 
marriage.  A  husband  or  wife3  shall  not  be  compelled4  or,  with- 
out consent  of  the  other  if  living,  allowed  to  disclose  a  confiden- 
tial communication,5  made  by  one  to  the  other  during  marri- 
age. In  an  action  for  criminal  conversation,  the  plaintiff's  wife 
is  not  a  competent  witness  for  the  plaintiff,  but  she  is  a  competent 
witness  for  the  defendant,  as  to  any  matter  in  controversy ;  ex- 
cept that  she  cannot,  without  the  plaintiff's  consent,  disclose  any 
confidential  communication  had  or  made  between  herself  and  the 
plaintiff."  Business  transactions  between  them  are  not  confiden- 
tial communications  within  the  policy  of  the  statute,6  nor  are  com- 
munications made  in  the  presence  and  hearing  of  third  persons.7 
But  written  as  well  as  verbal  communications,  if  confidential,  are 
within  the  policy  of  the  rule.8 

4.  Their  Admissions  and  Declarations?^ — When  either  hus- 
band or  wife  is  strictly  incompetent  as  a  witness,  either  generally 
or  as  to  a  particular  fact,  evidence  of  his  or  her  declaration  of 

and  the  persons  competent  to  waive  it  were  the  husband  and  wife — not  the  parties  to 
the  suit.  Russ  v.  The  War  Eagle-,  14  Iowa,  363 ;  Blake  v.  Graves,  18  Id.  317,  DILLOX, 
J.  dissented;  Jordan  v.  Anderson,  19  Id.  565.  Objection  to  wife's  competency  was 
not  waived  by  permitting  examination-in-chief.  Schmidt  v.  Herfurth,  5  Robt.  124: 
But  see  Tappan  v.  Butler,  7  Bosw.  480;  Boardman  v.  Boardman,  L.  R.  1  P.  <fc  M.  233. 

1  N.  Y.  Code  Civ.  Pro.  §  828.  General  provisions  of  statute  removing  disqualifi- 
cation by  reason  of  interest,  and  enabling  parties  to  testify,  do  not  abrogate  the  com- 
mon law  exclusion  of  husband  and  wife  on  grounds  of  public  policy.  Kelly  v.  Drew, 
12  Allen,  107,  109. 

9  2  N.  Y.  Code  Civ.  Pro.  §  831,  asamd.  by  L.  1880,  c.  149,  superseding  L.  1879,  c.  542. 

8  The  marital  privilege  does  not  apply  in  the  case  of  a  void  marriage.  Bloomer 
V.  Barrett,  37  N.  Y.  434  ;  Kelly  v.  Drew,  12  Allen,  107,  110. 

4  In  Hebblethwaite  v.  Hebblethwaite,  L.  R.  2  Pr.  &  D.  29,  holds  the  correspond- 
ing English  statute,  giving  a  privilege  to  the  witness,  to  be  secured  by  the  judgo ; 
and  that  it  is  not  competent  to  counsel  to  object  to  the  testimony. 

5  At  common  law,  for  reasons  of  public  policy,  neither  husband  nor  wife  could 
testify  to  a  communication  of  whatever  nature,  confidential  or  otherwise,  which  passed 
between  them.     O'Connor  v.  Majoribanks,  4  M.  <fe  Gr.  435,  S.  C.  J.  6  Jur.  509 ;  and 
even  death  or  divorce  did  not  break  the  seal.    Monroe  v.  Twistleton,  Peake's  Add. 
Cas.  210;  Southwick  v.  Southwick,  49  N.  Y.  510,  518,  affi'g  9  Abb.  Pr.  N.  S.  109; 
Dexter  v.  Booth,  2  Allen  (Mass.),  559.     On  the  same  ground  neither  was  allowed  to 
testify  to  matters  to  the  detriment  of  the  other,  or  of  the  character  of  the  other. 
Southwick  v.  Southwick  (above) ;  Haebrouck  v.  Vandervoort,  9  N.  Y.  153,  158,  160, 
affi'g  4  Sandf.  596 ;  People  v.  Mercein,  8  Paige,  47,  50 ;  Burrell  v.  Bull,  3  Sandf.  Ch. 
15 ;  Barnes  v.  Camack,  1  Barb.  392 ;  Marsh  v.  Potter,  30  Barb.  506 ;  Stein  v.  Bow- 
man, 13  Pet.  209,  221 ;  Scroggin  v.  Holland,  16  Mo.  419.     These  rules  were  not  mere 
rules  of  evidence,  but  part  of  the  law  of  husband  and  wife. 

6  Southwick  v.  South  wick  (above);  Schaffner  v.  Reuter,  87  Barb.  44.    Otherwise 
under  the  Massachusetts  statute  protecting  "  private  conversations."     Bliss  v.  Frank- 
lin, 13  Allen,  244 ;  Drew  v.  Tarbell,  117  Mass.  90.     Wife  acting  as  messenger,  not  an 
"  agent,"  within  n  statute  rule  allowing  wife  to  testify  for  or  agninst  her  husband 
only  within  the  limits  of  her  agency  for  him.    Hale  v.  Danforth,  40  Wis  885. 

1  See  Allison  v.  Barrow,  8  Coldw.  (Tenn.)  414 ;  State  v.  Center,  35  Vt.  878. 
8  See  Williamson  v.  Morton,  2  Md.  Ch.  Dec.  94 ,  Bradford  v.  Williams,  Id.  1 ; 
Nelius  v.  Wrickell,  Hay  w.  N.  C.  19. 


166  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

the  fact  is  incompetent,1  except  in  the  following  cases  :  The  dec- 
larations of  either  are  competent ;  1.  When  the  making  of  such 
declarations  is  the  material  fact.2  2.  When  the  declaration  is 
part  of  the  res  gestca  involved  in  an  act  properly  in  evidence.3 
3.  When  it  is  merely  matter  of  inducement  or  introduction  to 
the  language  or  conduct  of  another  person,  which  the  declara- 
tion offered  called  forth.4  4.  When  it  is  one  which  the  declarant 
made,  when  authorized,  expressly  or  impliedly,  to  speak  as  the 
other's  agent,  or  as  one  to  whom  the  other  referred  a  third 
person.5 

The  privilege  from  testifying  to  confidential  communications 
is  personal,  and  does  not  preclude  a  stranger  from  testifying  to 
them.6  But,  of  course,  all  the  rules  excluding  hearsay  apply. 

When  a  husband  or  wife  is  a  competent  witness,  or  would  be 
if  living,  his  or  her  admissions  and  declarations  are  competent 
against  the  maker  of  them,  for  the  same  purposes  and  within  the 
same  limits  that  they  would  be  if  the  maker  were  unmarried,7 
with  this  exception,  that  those  of  the  wife  cannot  be  received  to 
prove  an  act  by  her  which  the  law  does  not  authorize  a  married 
woman  to  perform.  The  existence  of  the  marital  relation  is  not 
enough  to  make  admissions  or  declarations  made  by  either  com- 
petent against  the  other*  but  some  special  ground  for  admitting 
them  must  be  shown,  as  in  case  of  other  persons.  For  this  pur- 
pose it  is  enough  to  show  that  the  declarant  was  the  agent  of 
the  other  in  the  matter  involved,  and  acting  as  such  when  the 
declaration  was  made ; 9  or  that  the  other  claims  as  the  represent- 
ative or  successor  of  the  declarant.10  In  the  case  of  silence  or 
acquiescing  admissions  by  the  wife,  in  the  face  of  her  husband's 
conduct  or  declarations,  the  influence  of  the  marital  relation  must 
be  presumed,  so  far  as  to  require  very  clear  proof  of  her  free 
assent,11  or  of  estoppel  in  favor  of  .an*  innocent  third  person,12  in 


1  Dawson  v.  Hall.  2  Mich.  (Gibbs),  390;    Gardner  v.  Klutts,  8  Jones  L.  (N.  C.) 
3*75  ;  Karney  v.  Paisley,  13  Iowa  (5  Withrow),  89.     The  incompetency  of  the  witness 
enhances  the  reason  for  the  exclusion  of  the  declaration.     Churchill  v.  Smith,  16 
Vt.  560  ;  Nelius  v.  Wrickell,  Hayw.  (N.  C.)  19. 

2  Of  this  class  of  cases  are  proofs  of  demeanor  as  showing  affection. 
8  "Williamson  v.  Morton.  2  Md.  Ch.  94. 

4  Boyles  v.  McEowen,  Penningt.  (N.  J.)  499. 
8  Lay  Grae  v.  Patterson,  2  Sandf.  338. 

6  Cook  v.  Burton,  5  Bush,  67. 

7  The  Pennsylvania  rule  excludes  the  declarations  of  either,  -when  offered  against 
creditors,  to  prove  title  out  of  the  declarant  and  in  the  other;  if  they  might  have  the 
effect  to  bolster  up  a  fraudulent  conveyance  (Parvin  v.  Capewell,  45  Penn.  St.  89) ; 
but  the  better  opinion  is  that  they  are  competent,  though  not  alone  sufficient  on  such 
an  issue.     Compare  Townsend  v.  Maynard,  45  id.  200  ;  Musser  v.  Gardner,  66  id.  246. 

8  Owen  v.  Cawley,  36  N.  Y.  600;  Thomas  T.  Maddan,  60  Penn.  St.  261,  265 ;  B.  p. 
Hanson  v.  Millett,  55  Me.  190 ;  Livesley  v.  Lasalette,  28  Wise.  41. 

9  Riley  v.  Suydam,  4  Barb.  222;  Kelly  v.  Kelly,  2  E.  D.  Smith,  250 ;  Rose.  N.P. 
75. 

10 -Day  v.  Wilder,  47  Vt.  584,  593 ;  Smith  v.  Sergent,  2  Hun,  107. 

11  Rowell  v.  Klein,  44  Ind.  293. 

12  See  Bodine  v.  Killeen,  53  N.  Y.  96. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  167 

order  to  give  any  weight  to  them ;  and  the  weight  of  her  admis- 
sions or  declarations  is  generally  impaired  where  there  is  not 
f  round  of  estoppel,  if  it  appears  that  they  may  have  been  made 
y  his  influence  or  for  his  benefit.1 

5.  Agency  of  one  for  the  otherJ] — To  prove  an  agency  for  the 
wife  in  a  matter  where  she  had  not  power  to  act  at  common  law, 
the  facts, — such  as  separate  estate, — on  which  her  power  under 
the  statute  depends,  must  be  proved.2    In  other  respects,  the  fact 
of  agency,  whether  of  one  for  the  other,  or  of  a  third  person  for 
either,  is  to  be  proved  in  the  same  manner  as  in  the  case  of  other 
persons.3    The  marital  relation  alone  raises  no  presumption  of 
agency  between  them  ;  but  its  existence  may  aid  or  impair  the 
significance  of  other  evidence  tending  to  show  agency.     Thus, 
when  the  agency  of  the  wife  is  alleged  against  the  husband,  in 
matters  of  a  domestic  nature,  slight  evidence  of  actual  authority 
is  enough;4  while  if  his  agency  is  alleged  against  her  to  divest 
her  of  her  estate  without  consideration,  the  existence  of  the  rela- 
tion is  a  reason  for  requiring  unusually  strict  proof  of  authority.5 
The  agency  cannot  be  proved  by  the  admissions  or  declarations 
of  the  one  alleged  to  be  agent.6    In  respect  to  the  effect  of  notice 
to  either,  as  binding  the  other,  the  fact  that  the  one  was  agent  for 
the  other  must  first  be  shown ;  and  then  the  rule  well  settled  in 
the  law  of  agency,  applies.7 

6.  Estoppel] — In  respect  to  all  matters  within  the  limits  and 
to  the  extent  to  which  the  law  has  conferred  capacity  on  the 
married  woman,  she  will  be  held,  in  favor  of  third  persons,  to  be 
liable  to  the  same  equitable  estoppels,  and  the  same  presumptions, 
and  chargeable  by  the  same  indirect  evidence  of  authority  con- 
ferred on  her  husband  or  other  agents,  or  by  the  same  apparent 
holding  out  of  him  or  them  as  authorized,  as  a  feme  sole?    But 
her  silence  or  concessions,  apparently  prompted  by  the  spirit  of 
forbearance  and  acquiescence  which  a  wife  should  foster  toward 
her  husband,  and  thus   explained  by  her  marital  duty,  do  not 
bind  her  as  an  estoppel  in  his  favor  or  in  favor  of  his  creditors, 
unless  fraud  or  bad  faith  on  her  part  is  shown.9    On  the  other 
hand,  her  conduct  or  silence  under  incapacity,  without  actual 


1  Hollinshead  v.  Allen,  17  Penn.  St.  275. 

*  Nash  v.  Mitchell,  3  Abb.  New  Gas.  171. 

•  See  Bodine  v.  Killeen,  53  N.  Y.  96 ;  Dillaye  v.  Beer,  3  Supm.  Ct.  (T.  <fc  C.)  218. 
'Paragraph  21  below. 

6  Hoffman  v.  Treadwell,  2  Supm  Ct.  (T.  &  C.)  67.  See-  also  Schooler  Dom.  ReL 
99 ;  2  Bish.  Mar.  W.  §§  396,  407,  411 ;  Bank  of  Albion  v.  Burns,  46  N.  Y.  170. 

8  Deck  v.  Johnson,  1  Abb.  Ct.  App.  Dec. 

T  Adams  v.  Mills,  60  N.  Y.  539 ;  R.  R.  Co.  v.  Brooks,  81  111.  293 ;  Pringle  v. 
Dunn,  37  Wise.  468. 

8  Bodine  v.  Killeen,  53  N.  Y.  96 ;  Anderson  v.  Mather,  44  N.  Y.  210,  262.  Com- 
pare McGregor  v.  Sibley,  69  Pa.  St.  388;  Morris  v.  Ziegler,  71  Pa.  St.  450.  And 
see  2  Bish.  Mar.  W.  §  488  ;  Carpenter  v.  Carpenter,  25  N.  J.  Eq.  194. 

'  Bank  of  U.  8.  v.  Lee,  13  Pet.  118;  Sextou  ?.  Wheaton,  8  Wheat.  238. 


168  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

fraud,  cannot  raise  an  estoppel  which  will  avail  in  the  place  of 
capacity  when  it  did  not  exist  by  the  law.1 

7.  Judgments.'] — At  common  law,  and  apart  from  the  statutes 
conferring  capacity  upon  married  women,  a  judgment  at  law 
against  a  married  woman  whose  husband  was  not  a  party  with  her, 
is  not,  in  general,  binding  upon  her ; 2  and  a  decree  in  equity 
in  a  suit  brought  by  both  as  to  her  separate  estate,8  or  in  which 
their  interests  were  in  conflict,4  is  not  conclusive  against  her. 
Under  the  modern  statutes,  a  judgment  against  a  married  woman 
is  competent  and  conclusive  against  her  and  those  claiming  under 
her,  in  the  same  cases  and  to  the  same  extent  that  it  would  be 
against  a  feme  sole,  provided  the  case  be  one  in  which  she  might 
have  capacity  under  the  statute.5 

8.  Evidence  of  Husband? s  title.] — Evidence  that  the  husband,6 
or  husband  and  wife  together,7  or  the  wife,8  were  in  possession 
of  property,  without  other  indication  of  ownership,  is  presump- 
tive, but  not  conclusive,9  evidence  of  title  in  the  husband.    Evi- 
dence that  the  property  in  question  was  purchased  by  her  on  her 
own  credit,  when  she  had  no  separate  estate  or  other  capacity  to 
contract,  is  evidence  of   title  in  him.10    And  her  purchase  of 
articles  for  family  use,  partly  with  her  own  money  and  partly 
with  his,  tends,  in  the  absence  of  anything  indicating  a  different 
intent,  to  prove  title  in  him.11  But  alter  it  has  been  shown  either 
that  he  received  property  to  his  wife's  use,  or  that  she  had  title 
to  property  iii  the  possession  of  either  or  both,  or  that  it  was  in 
her  possession  in  a  separate  business  belonging  to  her  under  the 
statute,12  the  burden  is  on  those  who  claim  it  to  be  his  to  show 
his  title.     If  the  fund  is  the  proceeds  of  her  estate,  it  is  hers, 
even  as  against  his  creditors,  although  realized  by  his  labor  as  her 
servant  upon  her  farm,18  or  in  her  business,14  or  his  skill  or  ability 
as  her  agent  in  the  purchase  and  resale  of  her  property.15 

It  being  shown  that  title  to  property  was  in  either  the  wife- 


1  Big.  on  Estop.  444-446  ;  4  Central  L.  J.  507,  579. 

*  Bigelow  on  Estop.  48;  Freem.  on  Judg.  §  150,  and  cases  cite.d. 

»  Stuart  v.  Kissam,  2  Barb.  493  ;  Michan  v.  Wyatt,  21  Ala.  N.  S.  813,  833. 

4  Alston  v.  Jones,  3  Barb.  Ch.  897. 

6  Freem.  on  Jud<r.  §  150.     Contra,  Swayne  v.  Lyon,  67  Penn!  St.  439. 

6  Keeney  v.  Good,  21  Penn.  St.  354. 

I  Turner  v.  Brown,  6  Hun,  331. 

8  Black  v.  Nease,  37  Penn.  St.  436. 

'  See  paragraph  16  (below).     See  also  Schouler's  Dom.  Rel.  214;    2  Bish.  Mar. 
W.  §§  128-140;  1  Id.  §732. 

10  Glann  v.  Younglove,  27  Barb.  480. 

II  Kelly  v.  Drew,  12  Allen,  107. 
14  Peters  v.  Fowler,  41  Barb.  467. 

11  Vrooman  v.  Griffiths,  4  Abb.  Ct.  App.  Dec.  605.     As  to  what  proves  him  a 
tenant  under  her,  and  what  her  servant,  compare  Albin  v.  Lord,  39  N.  H.  205,  and 
Hill  v.  Chambers,  30  Mich.  422. 

14  Kluender  v.  Lynch,  2  Id.  538. 
»  Merchant  v.  Bunnell,  3  Id.  280. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  169 

or  the  hnsband,  no  presumption  of  a  transfer  of  the  title  to  the 
other  can  be  drawn  from  the  mere  fact  of  possession  by  the  other ; 
the  burden  of  proof  is  on  the  one  who  asserts  a  change,  to  give 
some  evidence  beyond  the  mere  possession.1  The  intimacy  of 
the  relation  is  such,  and  acting  as  agent  for  each  other  so  habitual, 
that  the  possession  by  one  of  the  movables  of  another  is  very 
slight,  if  any,  evidence  of  a  gift  or  transfer,  and  not  enough  to 
transfer  the  burden  of  proofs  The  fact  that  they  joined  in  con- 
veying does  not  raise  a  presumption  that  he  was  the  sole  owner, 
but  rather  that  they  were  equal  owners  in  common.3 

9.  Evidence  of  Wife's  title.'] — The  wife's  separate  property 
rights  are  still  regarded  as  exceptional, — that  is  to  say,  the  law 
requires  her  in  each  case  to  rebut  the  presumption  that  whatever 
she  acquires  belongs  to  her  husband,  or  is  subject  to  his  control  ;4 
and  this  is  to  be  done  by  establishing  the  facts  necessary,  to  bring 
her  case  either  within  the  enabling  statutes,  or  within  the  com- 
mon law  or  equity  rules  recognizing  a  married  woman's  right. 
She  must  give  some  evidence  of  her  title,  besides  possession  un- 
der the  marital  relation ;  for  the  mere  fact  of  the  wife's  posses- 
sion and  control  of  property,  if  consistent  with  their  common 
interest  in  and  enjoyment  of  it  as  the  husband's  property,  is  no 
evidence  of  title  in  her,  but  is  presumptive  evidence  of  his  pos- 
session.5 This  presumption,  however,  may  be  rebutted  by  his 
admissions  that  it  belonged  to  her,  or  by  his  silence  in  the  pres- 
ence of  her  declarations  of  ownership.6  She  may  even  prove 
title  by  adverse  possession,  against  a  third  person,  although  her 
husband  lived  with  her,  if  he  claimed  no  independent  exclusive  oc- 
cupation in  himself.7  A  deed  containing  the  maiden  name  as  that 
of  the  grantee  may  be  shown  to  be  to  her,  by  parol  evidence  that 
she  was  the  person  to  whom  the  grant  was  made,  and  was  known 
to  the  grantor  by  that  name,  and  that  no  other  person  claiming 
the  name  claims  title  under  the  deed.8  If  a  deed  to  a  married 
woman  fails  to  express  that  it  is  to  her  separate  use,  extrinsic 
evidence  of  the  intent  is  competent,9  unless  the  statute  of  the 
State  requires  directions  in  the  instrument,  or  only  extends  to 


1  Wells  Sep.  Prop,  of  M.  W.  224-226,  and  cases  cited. 

1  Bachman  v.  Killinger,  55  Penn.  St.  418  ;  1  Bish.'Mar.  W.  §  732. 

3  Cox  v.  James,  45  N.  Y.  557,  affi'g  59  Barb.  144. 

4  Schouler  Dom.  R.  2d  ed.  16;  2  Bish.  Mar.  W.  §  82,  Ac. 

5  Farrell  v.  Patterson,  43  III.  52,  59  ;    Johnson  ,v.  Johnson,  72  Id.  491.     Where 
both  are  domiciled  on  her  estate,  it  has  been  held  that  he  is  not  presumptively 
responsible  for  the  control  of  the  premises  in  respect  to  negligent  condition.     Fiske 
T.  Bailey,  51  N.  Y.  150 ;  but  is  in  respect  to  illegal  use.    Commonwealth  v.  Carroll, 
6  Reporter,  699. 

*  Turner  v.  Brown,  6  Hun,  331. 

7  Clark  v.  Gilbert,  39  Conn.  94. 

8  Scaulan  v.  Wright,  13  Pick.  523,  530. 

1  But  not  necessary  if  the  conveyance  was  by  a  stranger.     McVey  v.  Green  Bay, 
Ac.  R.  R.  Co.  42  Wise.  532. 


170  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

property  conveyed  to  her  separate  use.1  Evidence  that  the  prop- 
erty came  to  her  from  a  third  person,  or  a  bill  of  sale  running  to 
her  individually,  is  prima  facie  sufficient  to  go  to  the  jury.2  On 
the  question  whether  a  purchase  made  in  her  name  was  upon  a 
consideration  paid  by  her,  evidence  of  her  lack  of  means  is  com- 
petent against  her;3  but  evidence  that  she  had  means  is  not 
sufficient,  as  against  his  creditors  at  least,  without  evidence  tend- 
ing to  show  that  the  purchase  was  made  with  her  means.4  Evi- 
dence that  she  had  a  separate  estate  or  business  before  purchasing 
is  not,  however,  essential,  for  she  may  commence  such  an  estate 
or  business 5  by  a  purchase  on  credit.6  Evidence  that  the  thing 
was  a  gift  accompanied  by  delivery  to  both  at  about  the  time  of 
marriage,  raises  a  question  of  intent  as  to  whether  it  was  a  gift 
to  one  or  the  other. 

The  declarations  of  the  husband,  at  the  time  of  his  transaction, 
that  the  property  delivered  belonged  to,  and  was  delivered  for 
the  benefit  of  the  wife,  is  competent,  not  only  against  him,  but 
against  the  other  party  to  the  transaction.7  In  tracing  the  source 
of  her  title,  the  rule  of  res  gestce  applies,  not  alone  to  the  imme- 
diate transfer  of  the  thing  in  question,  but  to  the  transactions  by 
which  she  came  to  have  a  separate  property.  Hence,  on  the 
question  of  the  title  to  property  bought  by  her,  the  declarations 
of  the  third  person  who  gave  her  the  money  with  which  she  pur- 
chased the  property,  showing  that  the  money  was  a  gift  to  her,8 
or  her  correspondence  with  her  business  agent,  showing  the 
source  of  the  fund,9  is  competent  as  part  of  the  res  gestce.  Her 
own  declarations,  if  part  01  the  res  gestce,  are  competent  in  sup- 
port of  her  title.10 

Parol  evidence  is  competent  to  show  that  the  husband  paid 
the  consideration  for  an  estate  conveyed  to  the  wife ;  but  this 
raises  a  presumption  that  he  intended  it  as  a  provision  for  her,11 
and,  in  the  absence  of  other  evidence,  establishes  her  title,  except 
as  against  his  creditors.12  The  fact  that  he  caused  or  consented  to 


I  2  Bish.  Mar.  W.  §  92 ;  and  unless  she  is  estopped.    Id.  §  104.     Compare  Hayt 
v.  Parks,  39  Ct.  357. 

8  Wasserman  v.  Willett,  10  Abb.  Pr.  6& 
8  Block  T.  Melville,  10  La.  Ann.  784. 

4  Seitz  v.  Mitchell,  94  U.  S.  (Otto),  583. 

5  Harrington  v.  Robertson,  N.  Y.  Ct.  App.  Nor.  1877;  Frecking  T.  Rolland,  63 
N.  Y.  422,  rev'g  33  Super.  Ct.  (J.  &  S.)  499 ;    Dingens  v.  Clancey,  67  Barb.  566. 

•  Contra,  Carpenter  v.  Tatro,  36  Wise.  297  ;  and  see  Huff  v.  Wright,  39  Geo.  41. 
The  mere  fact  that  he  helped  her  with  his  credit,  in  making  her  purchase,  does  not 
render  the  property  liable  to  his  creditors.  There  should  be  evidence  of  fraud.  2 
Bish.  Mar.  W.  §  87. 

7  Grain  v.  Wright,  46  HI.  107. 

8  Hall  v.  Young,  37  N.  H.  134,  144. 

9  Hannis  v.  Hazlett,  54  Penn.  St.  189;  s.  p.  Bank  v.  Kennedy,  17  Wall.  19. 

10  Clau?sen  v.  La  Franz,  1  Iowa,  226. 

II  So  of  a  house  built  by  him  on  her  land.   Caswell  v.  Hill,  47  N.  H.  407  ;  and  see 
Tappan  v.  Butler,  7  Bosw.  480. 

'2  Guthrie  v.  Gardner,  19  Wend.  414;  chap.  v.  of  this  vol.  paragraph  119;  and 
cases  cited  in  13  Moak's  Eng,  833. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  171 

the  deed  being  taken  in  her  name  is  very  cogent  evidence  that  he 
intended  her  to  have  absolute  title.1  He  may  rebut  the  presump- 
tion that  he  intended  it  as  a  provision  for  her,  by  proof  of  undue 
influence,3  or  of  fraud  effected  by  a  misrepresentation  as  to  a 
material  fact,  not  equally  aseertainable  by  both,  as  distinguished 
from  mere  statement  of  opinion ; 8  or  by  proof  that  at  the  time 
of  the  transaction  it  was  mutually  understood  and  designed  that 
she  should  hold  for  him.4  And  the  amount  itself  may  be  so 
large,  in  relation  to  the  circumstances  of  the  parties,  as  itself  to 
rebut  the  presumption  of  a  provision  exclusively  for  her  benefit.5 
The  fact  that  she-  afterward  joined  with  him  in  a  deed  or  mort- 
gage of  the  land  does  not  estop  her  from  proving  the  intent,  and 
that  all  his  dealing  with  the  property  was  as  her  agent.6  If  there 
be  satisfactory  evidence 7  that  it  was  by  her  procurement  and 
without  his  consent  that  the  deed  was  made  to  her,  or  if  it  was 
the  mutual  understanding  and  purpose  at  the  time,  that  she  was 
to  hold  the  land  as  his,  and  not  as  her  own,  the  law  raises  a  re- 
sulting trust  in  his  favor,  or  in  favor  of  his  creditors.8 

Parol  evidence  is  also  admissible  to  show  that  the  considera- 
tion of  a  deed  to  him  proceeded  from  her  separate  property  at 
the  time  of  the  purchase,9  and  that,  by  fraud,  duress,  mistake, 
abuse  of  confidence,  or  other  undue  means,  he  procured  or  ac- 
cepted the  title.10  Evidence  that  he  permitted  her  to  carry  on  a, 
farm  or  other  business  on  her  own  account,  shows,  as  against  him, 
her  title  to  property  purchased  in  course  of  the  business,  although 
he  advanced  money  to  her  in  aid  of  the  purchase ; u  and  to  enable 
his  creditors  to  reach  the  property  so  held  by  her,  or  property 
acquired  by  her  through  his  skill  and  labor,  the  burden  is  on 
them  to  show  her  possession  fraudulent.12  If  she  shows  title  to  a 
separate  property  or  capital,  not  derived  from  him,  the  fact  that 
she  employs  him,13  or  their  .minor  son,14  upon  it,  and  supports  him, 


1  Smith  v.  Smith,  60  Mo.  262. 

8  As  to  the  mode  of  proof  of  this,  see  paragraphs  6*7  and  68  of  the  preceding 
chapter.    Compare  Orr  v.  Orr,  8  Bush,  159. 
5  Jagers  v.  Jagers,  49  Ind.  428. 

4  Bent  v.  Bent,  44  Vt.  655  ;   Welton  v.  Divine,  20  Barb.  10 ;    and  see  Foote  v. 
Foote,  58  id.  258. 

5  Adlard  v.  Adlard,  65  111.  212% 

8  Tappon  v.  Butler,  7  Bosw.  480. 

7  Sandford  v.  Weeden,  2  Heisk.  74,  76. 

*  Id. ;  2  Bish.  Mar.  W.  §§  118-124.  But  see  the  statute  as  to  resulting  trusts,  1 
N.  Y.  R.  S.  728.  §§  51-53,  and  48  N.  Y.  218,  and  cases  cited ;  Gilbert  v.  Gilbert,  2 
Abb.  Ct.  A  pp.  Dec.  256. 

9  Robison  v.  Robison,  44  Ala.  227. 

10  Bancroft  v.  Curtis,  108  Mass.  47;  2  Bish.  Mar.  W.  %  119;  Methodist  Ch.  v. 
Jaques,  1  Johns.  Cb.  450. 

"  Sammis  v.  McLaughlin,  35  N.  Y.  647. 

19  Kluender  v.  Lynch.  2  Abb.  Ct.  App.  Dec.  638 ;  Merchant  v.  Bunnell,  8  id. 
280. 

13  Buckley  v.  Wells,  33  N.  Y.  618,  rev'g  42  Barb.  569. 

14  Van  Etten  v.  Currier,  4  Abb.  Ct.  App.  Dec.  476. 


172  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

does  not  raise  a  presumption  of  fraud ;  on  the  contrary,  if  she 
shows  title  to  the  main  property,  and  that  he  was  destitute  of 
means,  the  current  purchases  will  be  presumed,  in  the  absence  of 
evidence  to  the  contrary,  to  be  made  by  her  funds.1  But  his 
conduct  in  the  business  may  be  given  in  evidence  on  the  ques- 
tion of  fraud.2 

The  presumption  of  her  ownership  of  property  being  once 
established,  continues  until  alienation  is  shown  ;  and  though  the 
property  be  kept  in  his  house,  the  possession  is  presumptively 
ners s  during  cohabitation. 

10.  Evidence  of  transfer  by  one  to  the  other.'] — A  gift  by  hus- 
band to  wife  mav  be  proved  by  parol,  unless  other  grounds  than 
the  relation  require  written  evidence ; 4  and  it  is  enough  to  prove 
an  executed  intention  to  make  the  gift ;  and  declarations  made 
by  him,  at  the  time  of  giving  his  wife  money,  as  to  the  purpose 
for  which  he  gave  it,  and  declarations  as  to  the  person  for  whom 
he  was  acting,  made  when  he  received  a  security  in  her  favor, 
are  competent  in  favor  of  her  title.5  So  his  express  declaration 
may  constitute  him  trustee  for  her, — as  where  he  credits  her  in 
account  with  moneys  given  by  him  to  her,  but  not  actually  de- 
livered.6 If  her  title  was  derived  from  him,  his  declarations 
made  after  the  transfer  are  not  competent  in  favor  of  creditors 
and  against  her  title,  to  establish  fraud  in  the  transfer.7  To 
prove  a  gift  by  him  to  her,  the  evidence  must  be  clear.8  The 
mere  fact  that  a  husband  allows  his  wife  to  deal  with,  as  if  her 
own  property,  that  which  is,  or  might  be,  his  by  marital  right, 
does  not  convert  it  or  its  proceeds  into  her  separate  property.9 
But  if,  while  having  such  marital  right,  whether  to  property  in 
possession  or  in  action,  he  borrows  it  of  her,  agreeing  to  repay  it, 
the  agreement  is  valid 10  (unless  perhaps,  if  made  on  the  mistaken 
idea  that  by  law  it  is  her  separate  property11),  and  his  payment  to 
her  is  valid,  even  against  his  creditors.12  So  evidence  of  his  dec- 


1  Vrooman  v.  Griffiths,  4  Abb.  Ct.  App.  Dec.  505.  Compare  2  Bish.  Mar.  W. 
§  801,  &c.  Presumptively  the  avails  of  the  husband's  labor  are  his  own ;  and  to 
make  them  hers,  there  must  be  some  understanding  that  they  are  not  to  be  paid  for. 
Id.  §  456. 

4  O'Leary  v.  Walter,  10  Abb.  Pr.  N.  8.  439. 

3  Hanson  v.  Millett,  55  Me.  189 ;  1  Bish.  Mar.  W.  §  732. 

4  Mack  v.  Mack,  3  Hun,  325. 

5  Kelly  v.  Campbell,  2  Abb.  Ct.  App.  Dec.  492. 


8  Crawford's  Appeal,  61  Penn.  St.  65. 
1  Gillespie  v.   Ws 


falker,  56  Barb.  185 ;    s.  P.  Lormore  v.  Campbell,  60  id.  62. 
Whether  they  are  competent,  to  negative  fraud,  is  disputed,  see  paragraph  5,  above. 

8  Shuttleworth  v.  Winter,  55  N.  Y.  629 ;  1  Bish.  Mar.  W.  §  732.     Savings  from 
house-keeping,  allowance,  <fec.,  not  readily  presumed  gifts.    Schouler's  Dom.  Rel.  242. 
Compare  Wells'  Sep.  Prop.  M.  W.  142. 

9  Ryder  v.  Hulse,  24  N.  Y.  372;  Schouler's  Dom.  Rel.  236.     So  held  also  where 
he  permitted  it  under  the  mistaken  idea  that  the  law  entitled  her  to  it.     Sharp  v. 
Maxwell,  30  Miss.  589. 

10  Jaycox  v.  Caldwell,  51  N.  Y.  395,  affi'g  37  How.  Pr.  240. 

11  King  v.  O'Brien,  33  Super.  Ct.  (J.  <fe  S.)  49. 

18  Savage  v,  O'Neill,  44  N.  Y.  298,  rev'g  42  Barb.  374. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  173 

larations  made  in  view  of  marriage,  and  after  it,1  or  made  at  the 
time  of  receiving  the  property  or  afterward,  are  competent  to  dis- 
prove the  intent ; 2  and  if  they  clearly  evince  an  intent  to  receive  it 
for  her,  are  sufficient  to  repel  the  presumption  of  an  effectual  re- 
duction to  possession,  and  to  charge  him  as  trustee  for  her.3  The 
fact  that  he  received  her  property  as  a  loan,  so  as  to  entitle  her  to 
payment  among  other  creditors,  may  be  proved  by  indirect  or 
circumstantial  evidence,  without  proving  an  express  promise  at  or 
before  the  transaction.4 

A  mere  preponderance  of  proof  is  not  sufficient  to  show  title 
derived  by  her  from  him,  as  against  his  creditors,  especially  to 
invoke  the  interposition  of  a  court  of  equity  ;  but,  on  the  other 
hand,  proof  beyond  all  doubt  is  not  necessary.  Evidence  which 
satisfies  the  conscience  of  the  court  beyond  reasonable  doubt  is 
enough.5 

11.  Tacit  transfers^ — Where  one  is  tacitly  permitted  to  deal 
with  the  property  of  the  other,  the  question,  as  between  them  or 
between  either  and  those  claiming  as  assignees  or  successors  of 
the  other,  is  one  of  intent.     Their  express  agreement,  or  their 
tacit  understanding  or  usage,  may  determine  whether  the  trans- 
fer of  personalty  by  wife  to  husband,  was  a  gift  or  a  loan,  or 
only  a  change  of  possession,  under  an  agency,6  or  without  au- 
thority.     In  the  application  of  this  test  two  rules  contend  for 
control. 

12.  The  old  rule :  Presumption  in  favor  of  Husband. ~\ — The 
rule  applied  in  jurisdictions  where  the  legal  identity  of  husband 
and  wife  is  still  favored,  is  that  upon  the  mere  fact  that  she 
allows  him  to  receive  and  keep  her  funds,  the  presumption  is 
that  he  is  authorized  to  use  them  as  his  own  or  for  their  common 
benefit ; 7    and  he  is  not  to  be  required  to  account  except  from 
the  time  of  her  avowed  revocation  of  permission,8  or  for  the  last 
year  ;  arid  that  the  fact  that  she  consents  to  his  using  her  funds  in 
purchasing  land  and  taking  title  to  himself,  without  insisting  on 
any  agreement  to  repay  or  convey,  is  sufficient  evidence  of  her  gift 


1  Gackenbach  v.  Brouse,  4  Watts  &  S.  546. 

2  Such  as  liis  promise  to  give  her  his  note  for  it.     Meyer's  Appeal,  77  Penn.  St. 
482,485  ;  and  see  Jaycox  v.  Caldwell,  51  N.  Y.  395. 

3  Moyer's  Appeal  (above). 

4  Steadman  v.  Wilbur,  7  R.  I.  481. 

6  Wells'  Sep.  Prop,  of  M.  W.,  287-293,  317,  and  cases  cited;  Flick  v.  Devries, 
14  Wright,  Perm.  St.  267;  Tipner  v.  Abrahams,  11  Wright,  2:28;  Earl  v.  Champion, 
65  Id.  194  ;  Sanilford  v.  Weeden,  2  Heisk.  76  ;  Crissman  v.  Crissman,  23  Mich.  217. 
But  compare,  for  the  notion  that  preponderance  of  proof  is  enough  in  all  civil  cases, 
10  Am.  Law  Kev.  642. 

6  2  Bish.  Mar.  W.  §  446.      As  to  confusion  by  commingling,  see  1  Id.  §§  611, 
612 ;  2  Id.  125,  126,  446,  466 ;  Schouler's  Dom.  Ret  213,  214  ;  Cliambovet  v.  Cagney, 
85  JSuper.  Ct.  (J.  <fc  S  )486 ;  Hall  v.  Young.  37  N.  II.  134,  149. 

7  Jacobs  v.  Hessler,  113  Mass.  161;  Kleine's  Appeal,  89  Penn.  St.  463. 

8  Lyons  v.  Green  Bay,  (fee.  R.  R.  Co.  42  Wise.  548,  553,  aud  cases  cited. 


174  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

to  him.1  But  the  presumption  in  either  case  may  be  rebutted 
by  proof  that  he  received  the  property  in  trust  for  her.2  Evi- 
dence of  his  declarations  is  enough  to  establish  such  a  trust,  as 
against  him  and  his  personal  representatives,8  though  not  as 
against  his  creditors.4 

13.  The  new  rule:   Presumption  in  favor  of  Title.'] — The 
rule  laid  down  by  some  courts  as  more  in  consonance  with  the 
modern  doctrine,  is  that  where  she  has  a  right  to  her  property 
under  the  statute,  as  if  sole,  his  dealing  with  her  funds  will 
be  presumed,  in  the  absence  of  proof  to  the  contrary,  to  be  in 
the  character  of  agent  for  her,  and  they  will  not  be  deemed  to 
have  become  his  property,  unless  he  affirmatively  establishes  a 
gift  or  other  legal  transfer.5 

14.  Evidence  of  his  application  of  her  funds.'] — When  called 
to  account  for  the  proceeds  of  her  funds,  evidence  of  written  au- 
thority to  him  to  apply  them  is  not  necessary  ;  he  may  prove  by 
his  own  testimony  that  she  authorized  him  to  pay  them  out,  and 
that  he  did  so.6 

15.  Evidence  of  the  Wife's  Conveyance."] — Where  the  statute 
requires  the  husband's  written  consent  to  her  conveyance,  oral 
consent  is  not  enough.7     Where  the  statute  requires 8  a  private 
acknowledgment  by  a  married  woman  conveying,  she  passes  no 
estate  unless  she  makes  the  proper  acknowledgment ;  and  the  offi- 
cer's certificate  is  the  only  evidence  permitted  of  the  fact.     Its 
absence  cannot  be  supplied  by  parol ;  "   and  a  substantial  defect 10 
in  the  certificate  cannot  be  cured  by  parol,  nor  reformed  in 
equity.11 


'Campbell  v.  Campbell,  21  Mich.  438,  443;  and  see  Wells' Sep.  Prop.  M.  W. 
258. 

*  Jacobs  v.  Hessler  (above). 

8  Moyer's  Appeal,  77  Penn.  St.  486. 

4  Alston  v.  Rowles,  13  Fin.  128.     But  see  paragraph  5  (above). 

6  See  p.  169.     Patten  v.  Patten,  75  111.  446,  449  ;  Houston  v.  Clark,  50  N.  H.  482 

•  Southwick  v.  Southwick,  9  Abb.  Pr.  N.  S.  109,  affi'd  in  49  N.  Y.  510.      When 
the  husband,  with  her  consent,  has  been  in  the  habit  of  receiving  the  income  of  her 
separate  estate,  equity  has  heretofore  usually  regarded  this  as  showing  her  voluntary 
choice  thus  to  dispose  of  it  for  the  benefit  of  the  family ;  and  while  they  regard  him 
as  holding  as  her  tenant,  and  receiving  as  her  trustee,  they  will  not  ordinarily  re- 
quire him  to  account  beyond  the  income  of  the  last  year,  presuming  that  everything 
previous  ha?  been  settled  by  mutual  agreement  (2  Story  Eq.  Jur.  §  1396  ;   Albin  v. 
Lord,  39  N.  H.  204),  or  expended  by  her  authority.      Methodist  Epis.  Church  v. 
Jaques,  1  Johns.  Ch.  450. 

1  Schouler's  Dom.  Rel.  235,  n. ;  Townsley  v.  Chapin,  12  Allen,  476.  But  see  to 
the  contrary,  Wing  v.  Schramm,  13  Hun,  377,  holding  that  a  conveyance  without 
the  nsseut  is  valid,  except  against  him ;  and  subsequent  assent  makes  it  valid  against 
him. 

8  By  the  New  York  statute  of  1878,  c.  800,  married  women  may  make  powers  of 
attorney  in  like  manner  and  with  like  effect  as  if  single. 

9  Elwood  v.  Klock,  13  Barb.  50;    but  see  Richardson  v.  Pulver,   63  Id.  67,  and 
cases  cited.     But  it  need  not  be  alleged  in  pleading.    Williams  v.  Soutler,  55  111.  130. 

10  The  objection  must  specify  the  defect. 

11  Willis  v.  Gattman,  53  Misa.  721.     As  to  what  defects  are  "  substantial,"  see 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  175 

16.  Impeaching  her  Conveyance.] — Equity  does  not  require 
evidence  of  such  actual  fraud  and  duress  in  order  to  enable  her 
to  set  aside  her  conveyance  procured  by  the  husband  as  is  re- 
quired against  a  stranger,1  and  may  relieve  her  against  a  voluntary 
conveyance  to  him,  under  mistake  or  fraud,  though  intended  by 
her  in  fraud  of  creditors.2     Evidence  of  the  state  of  her  mind 
and  of  her  health  at  the  time,  and  that  her  acknowledgment  had 
been  preceded  by  threats  and  menaces  of  her  husband,  in  case  she 
should  refuse  it,  is  competent,8  though  it  may  not  be  sufficient 
against  a  bona  fide  purchaser  for  value.4    A  proper  certificate  of 
acknowledgment  to  the  deed  is  prima  facie  evidence,  not  only 
of  the  facts  certified,  but  of  the  freedom  of  her  execution ;  but 
it  is  not  conclusive.5    It  may  be  rebutted,  and  the  testimony  of 
a  party  to  it  is  sufficient  to  raise  a  question  for  the  jury.6     Her 
voluntary  signature  for  her  husband  cannot  be  avoided  by  mere 
proof  of  her  neglect  to  read  the  instrument.7 

17.  Evidence  of  Wife's  Separate  Business.] — To  prove  that 
she  had  a  separate  business,  within  the  statute,  it  is  not  enough 
to  show  an  isolated  transaction,  nor  several  disconnected  acts,8  nor 


Deery  v.  Cray,  6  "Wall.  806;  Carpenter  v.  Dexter,  8  Id.  513;  Secrist  v.  Green,  3  Id. 
750  ;  Angler  v.  Schieffelin,  72  Penn.  St.  106,  s.  c.  13  Am.  R.  659 ;  Wright  v.  Taylor, 
2  Dill.  C.  Ct.  23,  and  note  p.  26 ;  Merritt  v.  Yates,  22  Am.  R.  128,  s.  o.  71  111.  636. 

1  Witbeck  v.  Witbeck,  25  Mich.  439.  Compare  pp.  120,  121,  of.this  voL,  and 
Block  v.  Melville,  10  La.  Ann.  785.  See  also  note  to  paragraph  1  (above),  and  2 
Bish.  Mar.  W.  §  480.  Ratification  by  wife,  of  deed  forged  by  husband,  not  inferred 
from  long  silence  after  being  informed.  Ladd  v.  Hildebrant,  27  Wis.  135. 

8  Boyd  v.  De  La  Montaignie,  4  Supm.  Ct.  T.  &  C.  152. 

8  Central  Bank  v.  Copeland,  18  Md.  305,  318. 

4  Rexford  v.  Rexford,  7  Lans.  6. 

5  1  N.  Y.  R.  S.  759,  §  17;    Jackson  v.  Schoonmaker,  4  Johns.  161 ;   Williams  v. 
Woodard,  2  Wend.  486. 

8  Williams  v.  Woodard  (above).  The  New  York  rule,  stated  in  the  text,  is  em- 
bodied in  the  statute  ;  but  whether  the  idea  of  estoppel  can  suffice  to  preclude  the 
wife  from  denying  the  truth  of  her  acknowledgment,  as  held  in  Kerr  v.  Russell,  69 
111.  666,  s.  c.  18  Am.  R.  634,  or  its  freedom,  as  held  in  White  v.  Graves,  107  Mass. 
825,  s.  c.  9  Am.  R.  38 ;  or  the  absence  of  her  husband,  as  held  in  Johnston  v.  Wal- 
lace, 53  Miss.  335,  remains  to  be  determined.  The  notion  that  the  certificate  has  the 
force  of  a  judicial  determination  is  not  tenable,  for  the  examination  is  ex  parte.  More- 
over, the  officer  does  not  certify  that  her  execution  is  freev;  he  has  not  adequate  power 
to  investigate  that  question.  He  certifies  that,  under  due  precautions  of  privacy, 
taken  by  him,  she  acknowledged  that  it  was  free.  Even  on  the  theory  of  a  judicial 
determination,  the  certificate  may  be  impeached  by  evidence  that  she  did  not  appear 
before  the  officer,  as  held  in  Allen  v.  Lenoir,  cited  in  Johnston  v.  Wallace,  53  Miss. 
335,  for  this  is  the  jurisdictional  fact ;  or  by  evidence  that,  lit  the  time  of  acknowl- 
edgment, the  deed  was  lacking  in  any  part  essential  to  an  effective  grant, — such  as 
having  a  blank  for  the  grantee's  name,  as  held  in  Drury  v.  Foster,  2  Wall.  34,  and 
Burns  v.  Lynde,  6  Allen,  305,  and  her  unacknowledged  power  to  fill  such  blanks  is 
void  (Id.);  or  by  evidence  of  fraud  or  imposition  in  obtaining  the  acknowledgment, 
coupled  with  notice  to  the  grantee,  as  held  in  Hill  v.  Patterson,  51  Penn.  St.  289.  If 
it  ia  to  be  held  conclusive,  notwithstanding  these  and  similar  infirmities,  it  must  be 
on  grounds  of  an  estoppel  allowed  for  reasons  of  public  policy,  peculiar  to  the  securi- 
ty of  titles.  For  other  cases  see  14  Moak's  Eng.  500. 

'  Fowler  v.  Trull,  1  Hun,  411. 

8  2  Bislu  Mar.  W.  §  441 ;  but  compare  Hart  v.  Young,  1  Lans.  417;  and  note  to 
paragraph  9  (above). 


176  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

the  rendering  of  domestic  service,  such  as  the  nursing  of  one 
person ; 1  without  evidence  that  it  was  intended  by  her  and  her 
husband  as  a  separate  business ;  but  the  management  of  real 3  or 
personal 8  property  for  profit,  is  a  business,  as  distinguished  from 
the  rental  of  it,  which  is  not.4  The  fact  that  she  commenced  to 
carry  on  the  business  before  her  marriage,  is  presumptive  evi- 
dence of  a  separate  business  and  stock  ; 5  all  the  stronger  if  it 
was  continued  in  her  maiden  name  after  marriage.6  "Where  a 
regular  place  of  business  is  kept,  the  fact  that  the  shop  was 
hired,  and  notes  for  goods  bought  were  given,  by  the  husband, 
in  his  own  name,  is  not  always  conclusive  evidence  that  the  wife  is 
not  the  owner.7 

II.  ACTIONS  BY  OK  AGAINST  HUSBAND. 

18.  Actions  by  Mm  founded  on  marital  right.'] — In  his  sole 
action  for  rents  and  profits  of  her  land,  he  must  prove  that  they 
accrued  since  marriage.8    In  respect  to  her  choses  in  action,  evi- 
dence that  he  received  them,  as  husband,  raises  a  presumption  of 
intent  to  reduce  them  to  possession,  only  to  be  rebutted  by  clear 
proof  of  a  contrary  intent.9    But  evidence  that  he  collected  in- 
terest or  dividends  on  her  stock  or  choses  in  action,  does  not 
necessarily  show  reduction  of  the  principal  to  his  possession,  but 
only  of  the  income  so  received.10 

19.  Defenses^] — To  defeat  his  sole  action  for  moneys  due  to 
her,  it  should  affirmatively  appear  that  the  legal  or  beneficial  in- 
terest is  her  separate  property,  or  is  otherwise  within  the  statute 
or  rules  of  equity,  enabling  her  to  sue  alone.11    Where  they  sue 
together  on  a  chose  in  action,  not  her  separate  property  or  right, 
a  release  or  other  extinguishment  of  the  claim,  by  him,  will  bar 
her  equally.12    And  if,  after  her  death,  he  sues  in  his  marital 
right,  as  her  survivor,  her  admissions  are  competent  against  him, 
because  he  claims  in  a  representative  capacity.13    When  he  sues 
alone,14  or  they  sue  jointly,15  for  her  services  rendered  during 
coverture,  evidence  01  her  admissions  of  payment  is  not  compe- 


1  Cuck  T,  Quackenbush,  13  Hun,  107,  and  cases  cited. 

8  Such  aa  carrying  ou  a  farm.     Smith  v.  Kennedy,  13  Hun,  9. 

3  Such  as  employing  the  husband  to  run  a  canal  boat.      Whedon  v.  Champlin,  59 
Barb.  61. 

4  Nash  v.  Mitchell,'  3  Abb.  New  Cas.  171. 
8  Peters  v.  Fowler,  41  Barb.  467. 

8  Askworth  v.  Outran,  37  Law  Times,  N.  S.  85. 

7  Mason  v.  Bowles,  117  Mass.  86. 

8  Decker  v.  Livingston,  15  Johns.  479. 

9  Moyer's  Appeal,  77  Penn.  St.  482.     See  paragraphs  8-13  (above). 

10  Hunter  v.  Hallett,  1  Edw.  388  ;  Burr  v.  Sherwood,  3  Bradf.  85. 

11  Crolius  v.  Roqualina,  3  Abb.  Pr.  114. 

14  Dewall  v.  Covenhoven,  5  Paige,  581 ;  Beach  v.  Beach,  2  Hill,  260. 

13  Smith  v.  Sergent,  2  Hun,  107. 

14  Hall  v.  Hill,  2  Str.  1094. 

15  Jordan  v.  Hubbard,  26  Ala.  433,  489. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  177 

tent,  without  evidence  of  her  authority  to  receive  money  for 
him.1  But  where  there  is  a  division  of  the  labors  of  husband  and 
•wife,  and  she  is  employed  at  service,  it  is  presumed  to  be  with 
his  consent,  and  the  presumption  would  only  be  rebutted  by  his 
objection.  Hence,  declarations  by  her  in  the  course  of  such  serv- 
ice, and  before  any  objection  by  him  as  to  the  terms  of  her  em- 
ployment, are  competent  against  him  as  part  of  the  res  geatce, 
when  he  sues  for  her  wages.2 

20.  Actions  against  him  founded  on  Marital   Obligation^} — 
Evidence  that  he  knew  of   and  assented  to  purchases  by  her, 
which  she  had  not  legal  capacity  to  make,  renders  him  liable 
therefor.8      Her  post-nuptial  admissions  are  not  competent   evi- 
dence in  an  action  against  him,4  or  against  both,5  for  her  ante- 
nuptial debt. 

21.  Actions  founded  on  her  agency .] — In  applying  the  pre- 
sumptions drawn  from  the  marital  relation,  the  agency  of  the 
wife,  to  order,  on  her  husband's  credit,  articles  reasonably  suita- 
ble,6 may  be  inferred  from  her  being  permitted  to  receive  the 
articles  in  his  house.7     The  housewife  is  presumed  to  be  author- 
ized to  order  domestic  articles  bought  for  their  family.8    If  there 
is  sufficient  other  evidence  tending  to  show  authority,  to  go  to 
the  jury,  there  need  not  be  evidence  that  the  things  were  neces- 
saries.9    The  extravagant  character  of  the  order  may  be  consid- 
ered by  the  jury  as  tending  to  rebut  a  presumption  of  agency.10 
No  such  presumption  arises  as  to  transactions  had  after  she  has 
left  him  voluntarily  and  causelessly.11 

Where  a  wife  is  allowed  by  the  husband  to  act  for  him, — as 
in  the  case  of  a  wife  receiving  and  caring  for  boarders  in  the 
household,12  or  the  wife  of  a  tradesman  or  mechanic  occupying 
the  shop  premises,  or  shown  to  have  been  seen  there  on  more 
than  one  occasion,  appearing  to  conduct  the  business  in  his  ab- 
sence,— she  is  presumed  to  have  authority  to  answer  for  him  in 
matters  of  the  like  nature  there.18 

22.  Defenses.'] — The  presumption  of  his  liability  may  be  re- 


1  Schouler'B  Dom.  Eel.  112. 

s  Hachman  v.  Flory,  16  Penn.  St.  196. 

*  Ogdcn  v-  Prentice,  33  Barb..  160 ;  2  Bish.  Mar.  W.  §  82. 

4  Ross  v.  Winners,  1  Halst.  (N.  J.)  366  ;  Churchill  v.  ""Smith,  16  Yt.  560: 

s  Lay  Grae  v.  Peterson,  2  Sandf.  338. 

«  Lane  v.  Ironmonger,  1  New  Pr.  Cas.  105,  s.  c.  13  Mees.  die  "W.  868. 

7  Rose.  N.  P.  882,  (13th  ed.  535). 

8  2  Whart.  Ev.  §  1256. 

•  Reid  v.  Teakle,  13  C.  B.  627,  8.  c.  22  L.  J.  C.  P.  161. 

10  Lnnev.  Ironmonger,  1  New  Pr.  Cas.  106,  8.  c.  13  Mees.  <fc  W.  368. 

11  Johnston  v.  Sumner,  3  H.  A  N.  261 ;  Biffin  v.  Bignull,  7  II.  <fe  N.  877. 

19  Kiley  v.  Suydam,  4  Barb.  222.  Hence  her  admission  that  nothing  is  due  from 
the  boarder,  is  competent  against  the  husband.  Ib. 

13  Such  as  to  offer  to  settle  a  bill  for  goods  delivered  there.  Clifford  v.  Burton,  1 
Bing.  199. 

12 


178  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

butted  by  evidence  that  the  credit  was  given  to  her  personally,1 
if  she  had  capacity  as  a  married  woman  to  make  such  a  contract.2 
Evidence  that  she  said  the  articles  were  for  herself,3  and  that  she 
gave  a  note  signed  by  herself,4  or  that  the  charge  in  plaintiff's 
books  was  against  her  only,5  is  not  conclusive  that  the  credit  was 
given  to  her  alone. 

23.  Action  for  necessaries."] — To  hold  the  husband  liable  for 
necessaries  furnished  to  his  wife,  unless  the  facts  indicate  her 
agency  for  him,  his  neglect  or  default  must  be  shown.8     The 
marriage  is  sufficiently  proved  by  evidence  of  cohabitation,  and 
holding  out,  or  repute.''     Agency  is  inferable  from  the  nature  of 
articles  such  as  are  suitable  and  necessary  for  the  wife  of  one  in 
his  station,  and  from  their  delivery  at  his  abode  without  his  ob- 
jection.8    But  if  he  shows  that  the  credit  was  given  against  his 
express  dissent  and  notice  thereof  to  plaintiff,  the  burden  is  on 
plaintiff  to  show  not  only  that  the  things  furnished  were,  in  their 
nature,  suitable  and  necessary,  but  also  that  the  husband  neglected 
his  duty  to  provide  supplies,  and  therefore  they  were  needed  in 
the  particular  case.9 

The  appropriate  character  of  the  articles  cannot  be  proved  by 
the  opinion  of  a  witness ; 10  nor  by  what  the  defendant  had  been 
accustomed  to  purchase  of  a  particular  dealer ; u  but  the  facts  as 
to  her  condition,  and  his  station  in  life,  and  the  character  of 
the  articles  supplied  by  plaintiff,  must  be  laid  before  the  jury.12 
His  leaving  the  State  without  making  provision  for  her,  is  suffi- 
cient evidence  of  desertion;  and  plaintiff  is  not  bound  to  prove 
that  a  demand  was  made  on  the  husband  to  provide  for  her ;  but 
his  refusal  to  do  so  may  be  inferred  from  the  fact  of  desertion.13 
If  it  appear  that  he  actually  provided  an  allowance  to  her,  plaintiff 
must  show  that  the  allowance  was  insufficient. 

24.  Defenses.']     The  marriage  and  appropriate  character  of 


1  Bentley  v.  Griffin,  5  Taunt.  356. 

8  See  Ogden  v.  Prentice,  33  Barb.  160 ;  Cropsey  v.  McKinney,  30  Id.  47. 

8  Gates  T.  Brower,  9  N.  Y.  205. 

4  Id. 

5  Jewsbury  v.  Newbold,  26  L.  J.  Excb.  247. 

6  Supervisors  of  Monroe  v.  Budlong,  51  Barb  493;    McGahey  v.  "Williams,  12 
Jolins.  293,  and  cases  cited.    The  legal  theory  of  the  action,  however,  is  not  negligence, 
but  an  implied  promise  to  pay.     See  Cromwtll  v.  Benjamin,  41  Barb.  658;  Kelly  v. 
Davis,  49  K  H.  176,  s.  c.  6  Am.  R.  499.     But  see  Mozen  v.  Pick,  3  Mees.  <fc  W.  481. 

7  See  Ch.  V,  paragraphs  18  and  19.      Cohabitation  and  holding  out  to  plaintiff 
is  conclusive  (Johnstoue  v.  Allen,  6  Abb.  Pr.  N.  S.  306 ;    1  Greenl.  Ev.  §  27),  and 
the  fact  that  plaintiff  knew  there  had  been  no  formal  marriage,  is  irrelevant,     Wat- 
son v.  Threlkeld,  2  Esp.  637. 

8  Rose.  N.  P.  382,  (13th  ed.  535). 

9  Keller  v.  Phillips,  39  N.  Y.  351,  affi'g  40  Barb.  391. 

10  Merritt  V.  Seaman,  6  N.  Y.  168. 

11  Scott  V.  Coxe,  20  Ala.  294. 

"  Lockwood  v.  Thomas,  12  Johns.  248. 

13  Usher  v.  Holleman,  5  N.  Y.  Leg.  Obs.  99 ;   Johnson  v.  Stunner,  8  Hurls.  &  N. 
261,  s.  0.  27  L.  J.  Exch.  341. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  179 

the  articles  supplied  having  been  shown,  the  burden  is  on  defend- 
ant to  rebut  the  presumption  of  agency  of  the  wife ; *  general 
reputation  is  competent  evidence2  that  they  were  living  separate 
under  articles  providing  for  her  support.  But  the  receipts  of 
third  persons  are  not  admissible  in  favor  of  defendant  to  show 
that  he  and  his  wife  lived  separate,  and  that  he  allowed  her  a 
separate  maintenance,  which  was  punctually  paid.  The  persons 
who  gave  the  receipts  should  be  called.3 

25.  Causes  of  separation.'] — On  the  question  whether  a  sep- 
aration of  husband  and  wife  was  due  to  the  wife's  fault  or  the 
husband's,  the  declarations  of  the  wife  to  any  person,  made  in 
sufficiently  immediate  connection  with  the  act  of  leaving  to  con- 
stitute a  part  of  the  res  gestm  are  admissible.4  If  the  husband's 
previous  cruelty  is  relied  on  as  the  cause  of  separation,  the  con- 
temporaneous expressions  of  affection  and  regard  used  by  either 
toward  the  other  in  the  other's  presence,5  or  to  a  third  person, 
in  the  absence  of  the  other,6 — and,  on  the  same  principle,  the 
wife's  complaint  to  her  physician  of  the  effects  of  her  husband's 
violent  treatment,  and  his  advice  thereupon  that  she  should  leave 
him,7 — are  competent ;  and  so  are  her  letters  manifesting  an 
affection  inconsistent  with  such  cruel  treatment.8  But,  in  such 
case,  there  must  be  independent  evidence,  beside  the  apparent 
date  of  the  letter,  showing  that  it  was  actually  written  at  a  period 
that  would  make  the  declaration  relevant.9  Where  her  infidelity 
is  relied  on  as  explaining  the  separation,  her  admissions  of  guilt 
have  been  held  competent.10  If  a  divorce  is  relied  on,  the  decree 
itself  is  the  best  evidence ; u  and  a  decree  dismissing  the  suit  for 
divorce  for  want  of  proof  is  competent  but  not  conclusive  evi- 
dence that  the  cause  alleged  did  not  exist.12 

On  the  question  whether  the  provision  he  had  made  for  her 
was  sufficient,  her  declarations  made  while  she  was  in  the  enjoy- 
ment of  it,  are  competent  in  his  favor.13 


1  Keller  v.  Phillips,  39  N.  Y.  351,  affi'g  40  Barb.  391. 
*  Baker  v.  Barney,  8  Johns.  72. 
8  Cutbush  v.  Gilbert,  4  8.  <fc  R.  551. 

4  Thus  the  reasons  she  gave  to  her  father  the  day  oT  her  return  to  him  on  leaving 
her  husband,  are  competent.     Johnson  v.  Sherwin,  8  Gray  (Mass.),  374.     See,  also, 
Snover  v.  Blair,  25  N.  J.  L.  (1  Dutch.)  94;    Aveson  v.  Lord  Kinnard,  9  Enst,  188, 
ELLENBOROUGH,  J  ;  Cattison  v.  Cattison,  22  Penn.  St.  275.     As  to  letters  written  dur- 
ing the  absence,  see  Rawson  v.  Haigh,  2  Bing.  99. 
See  Edwards  v.  Crock,  4  Esp.  39. 
See  Winter  v.  Wroot,  1  Moody  &  R.  404. 
See  Gilchvist  v.  Bale,  8  Watts,  355. 
Houliston  v.  iSmyth,  2  Carr.  <fe  P.  22. 
Id. 

10  Walton  v.  Greene,  1  Carr.  &  P.  621,  disapproved  in  1  Tayl.  Ev.  673,  §  695. 

11  Tice  v.  Reeves,  80  N.  J.  L.  314.    As  to  the  mode  of  proof,  see  page  101  of  this 
volume. 

15  Burlen  v.  Shannon,  3  Gray,  387. 

18  Jacobs  v.  Whitcomb,  10  Gush.  255.  The  introduction  of  declarntions  by  one 
party  may  justify  the  admission  of  declarations  of  the  other  in  the  same  conversation. 
See  Sherwood  v.  Titman,  55  Penn.  St.  77. 


180  ACTIONS  BY  OB  AGAINST  HUSBAND  OB  WIFE. 

III.  ACTIONS  BY  A  MAKEIED  WOMAN. 

26.  Pleading  in  her  action  on  contract.] — In  her  action  on 
contract,  an  allegation  of  her  coverture  is  not  necessary  in  her 
complaint,1  especially  if  the  statute  provides  that  she  may  sue  and 
be  sued  as  if  sole.2    And  if  her  complaint  does  allege  coverture, 
the  contract  will  be  presumed  to  have  been  within  her  capacity  if 
it  may  have  been  so,  without  allegation  of  the  facts  on  which  her 
capacity  depends.8    Defendant's  denial  of  the  contract  does  not 
avail  to  raise  the  defense  of  her  coverture  when  she  made  it.4    But 
if  her  coverture  is  pleaded  in  defense  or  in  abatement,  and  proved, 
then  she  must  prove  the  facts  showing  her  capacity  to  make  the 
contract,5  or  to  sue,  as  the  case  may  require, — such  as  separate 
estate0  or   business,7 — unless  the   contract  itself  raises    a  pre- 
sumption that  it  was  made  by  her  husband's  assent  in  a  case 
where  it  would  be  valid  at  common  law.8    Where  defendant  sets 
up  a  contract  made  by  her,  as  a  counterclaim  against  her,  she 
must  allege  coverture,  lor  coverture  as  a  defense,  even  if  proved, 
is  not  available  unless  pleaded.9 

27.  Evidence  of  the  contract.'] — The  making  of  a  note,10  mort- 
gage,11 bill  of  lading,12  or  other  security,13  to  a  married  woman,  is 
prima  facie  evidence  against  the  contracting  party 14  of  her  title 
and  right  to  sue  thereon. 

The  husband's  receipt  for  his  wife's  separate  property  will 


1  Peters  v.  Fowler,  41  Barb.  467. 

8  N.  Y.  L.  186,  §  450;  N.  Y.  Code  Civ.  Pro.  8,  c.  172,  §  3;  ffier  v.  Staples,  61 
N.  Y.  136  ;  Frecking  v.  Rolland,  53  Id.  422. 

3  Nininger  v.  Commissioners  of  Carver,  10  Minn.  133. 

'  Westervelt  v.  Ackley,  62  N.  Y.  505,  affi'g  2  Hun,  258,  s.  c.  4  Supm.  Ct.  (T.  <fe 
C.)  444. 

6  See  Nash  v.  Mitchell,  S  Abb.  New  Gas.  171.  And,  on  the  same  principle,  if  a  wife 
sues  alone,  not  by  authority  of  the  statute,  but  by  virtue  of  the  common  law  rule, 
where  her  husband  has  left  the  State  and  so  utterly  deserted  her  and  renounced  his 
marital  rights  as  to  enable  her  to  contract  as  if  sole,  the  burden  of  proof  is  upon  the 
one  alleging  the  validity  of  the  contract  to  establish  that  she  is  within  the  exception. 
See  Gregory  v.  Pierce,  4  Mete.  478. 

*  Paragraph  9. 

I  Paragraph  16. 

8  Burst  v.  Spelman,  4.N.  Y.  284. 

9  Westervelt  v.  Ackley,  62  N.  Y.  505. 

10  Borst  v.  Spelman,  4  N.  Y.  284.    And  the  fact  that  the  money  was  loaned  by 
her  husband  does  not  rebut  this  presumption.     Tooke  v.  Newman,  75  111.  215,  217. 

II  Wolfe  v.  Scroggs,  4  Abb.  Ct.  App.  Dec.  634. 

12  Thus  a  carrier  who  gives  receipt  to  a  married  woman  is  held  estopped  from 
denying  her  title.    Chicago,  Ac.  R.  B.  Co.  v.  Shea,  66  111.  471,  480. 

13  Compare  Rouillier  v.  Wernicki,  3  E.  D.  Smith,  310. 

14  And  against  her  husband  if  he  assented  to  her  so  doing.     The  fact  that  the 
plaintiff,  a  feme  covert,  bad  for  some  years  lived  apart  from  her  husband,  who  did 
nothing  for  her  support,  is  evidence  from  which  a  jury  may  infer 'that  the  contract 
sued  upon  was  made  by  her  on  her  separate  account.     Burke  v.  Cole,  97  Mass.  113. 
Whether  evidence  of  other  transactions  between  her  and  the  defendant  is  competent 
to  show  that  she  dealt  on  her  separate  account, — see  Fowle  v.  Tidd,  15  Gray  (Mass.), 
94. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  181 

not  discharge  a  third  person  from  liability  to  the  wife,  unless 
upon  the  ground  of  agency.1 

28.  Her  action  for  tort.] — In  a  married  woman's  action  for 
injuries  to  her  person,  to  enable  her  to  recover  for  disqualifica- 
tion to  labor,  &c.,  she  must  show  the  existence  of  a  separate 
business ;  otherwise,  the  damages  for  inability  to  labor  belong  to 
her  husband.2    So  to  enable  her  to  recover  expenses  of  medical 
attendance,  &c.,  she  must  show  that  they  were  paid  from  or 
charged  upon  her  separate  property.3 

IY.  ACTIONS  AGAINST  HER. 

29.  Pleading  in  action  Against  her  on  Contract.'] — The  com- 
plaint in  an  action  upon  a  contract  executed  by  a  married  woman, 
whether  against  her  alone,  or  her  husband  with  her,4  need  not 
allege  her  coverture,  nor  that  the  contract  was  executed  in  her 
business,  or  for  the  benefit  of  her  separate  estate,5  even  if  it 
appear  by  the  contract  that  she  was  married ; 6  nor  need  the 
complaint  ask  judgment  charging  her  separate  estate,  but  the 
complaint  may  be  framed  as  if  defendant  was  a  feme  sole}    Her 
coverture  is  matter  of  defense  to  be  pleaded  by  defendant  if 
available ; 8  and  evidence  that  she  was  a  married  woman  and 
could  not  contract,  is  not  admissible  under  a  denial  of  the  con- 
tract.9   The  plaintiff   may  prove  the  contract  as  alleged,  and 
rest,10  unless  defendant  has  pleaded  coverture  and  the  fact  ap- 
pears by  plaintiff's  case.     If  so,  or  if  defendant  thereupon  proves 
coverture  under  his  answer,  the  burden  is  cast  upon  the  plaintiff 
to  prove  a  case  within  the  statute.11 

30.  Evidence  of  the  Contract.'] — If  coverture  is  pleaded  as  a 
defense,  the  prooi  of  the  contract  involves  two  elements, — 1,  the 
fact  that  it  was  made ;  and  2,  her  power  to  make  it ;  and  the  facts 


1  Schouler's  Dora.  Rel.  233. 

*  Filer  v.  N.  Y.  Central  II.  R.  Co.  49  N.  Y.  47,  66. 

*  Moody  v.  Osgood,  50  Barb.  628. 

*  Broorae  v.  Taylor,  13  Hun,  341. 

5  Hier  v.  Staples,  51  N.  Y.  136  ;  Frecking  v.  Rolland,  63  Id.  422,  rev'g  33  Super. 
Ct.  (J.  &  S.)  499". 

6  Schofield  v.  Hustis,  9  Hun,  167. 

7  This  is  the  rule  under  the  N.  Y.  statute,  allowing  her  to  sue  and  be  sued  as  if 
sole.     It  has  elsewhere  been  held  that  if  coverture  appear  by  the  pleadings,  it  must 
appear  that  she  had  a  separate  property  or  business,  such  that  she  had  power  to  con- 
tract ;  Jonz  v.  Gugel,  26  Ohio  St.  529  ;    and  that  the  consideration  of  the  contract 
was  such  as  to  sustain  it;  Pollen  v.  James,  45  Miss.  132 ;  Griffin  v.  Ragan,  52  Id.  81 ; 
and  see  Melcher  v.  Kuhland,  22  Cal.  622  ;   and  her  intent  to  charge  separate  prop- 
erty.    Shannon  v.  Bartholomew,  63  Ind.  64. 

8  Smith  v.  Dunning,  61  N.  Y.  249  ;  Frecking  v.  Rolland  (above). 

*  WestL-rvelt  v.  Ackley,  62  N.  Y.  505,  affi'g  2  Hun,  258,  s.  c.  4  Supnx  Ct.  (T.  & 
C.)  444. 

10  Downing  v.  O'Brien,  67  Barb.  582. 

11  Id. ;  Nash  v.  Mitchell,  3  Abb.  New  Cas.  171 ;    Tracy  Y.  Keith,  11  Allen,  (Mass.) 
214. 


182  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

showing  her  power  must  be  affirmatively  proved  on  the  trial,1  as 
well  as  the  making  of  the  contract  itself,  although  they  need  not 
be  alleged  in  the  complaint. 

31.  The  making  of  the  contract] — The  rules  of  proof,  else- 
where stated  as  applicable  to  the  contracts  of  other  persons,  gen- 
erally apply  to  the  fact  of  contract  by  a  married  woman,  whether 
in  respect  to  implied  contracts,2  parol  agreements,8  or  to  parol 
evidence  to  vary  a  writing.4  To  establish  a  contract  made  through 
the  agency  of  the  husband,  it  may,  as  in  the  case  of  other  persons, 
be  shown  to  be  within  his  express  power,5  or  within  the  author- 
ity implied  from  her  having  held  him  out,6  or  suffered  him  to 
assume  the  power,  or  from  her  having  recognized  his  acts.7    The 
presumption  of  agency  derived  from  his  possession  of  an  instru- 
ment executed  by  her  is  limited  by  the  terms  of  the  instrument.8 
On  the  question  whether  the  other  party  gave  credit  to  her  or  to 
him,  entries  by  such  other  party  in  account  charging  or  crediting 
sums  to  either,  are  not  evidence  in  his  own  favor,  unless  part  of 
the  res  gestce  of  an  act  properly  in  evidence.9    They  are  competent 
as  against  him ;  but  are  not  conclusive  that  the  credit  was  given 
to  the  one  charged.10 

The  appropriate  evidence  of  her  power  to  contract, — viz.,  the 
existence  of  separate  business  or  estate, — has  already  been  ex- 
plained.11 Whether  anything  more  need  be  shown  is  disputed. 

32.  The  English  Rule  as  to  Charging  Separate  Estale.~] — The 
rule  now  applied  by  the  English  courts,  and  in  several  of  our 
States,12  is,  that  the  separate  estate  of  a  married  woman  is  answer- 


1  Nash  v.  Mitchell,  3  Abb.  New  Cas.  171. 

2  See  Bodine  v.  Killeen,  53  N.  Y.  93 ;  and  paragraph  6  (above). 
8  See  Fowler  v.  Seaman,  40  N.  Y.  692. 

4  Galusha  v.  Hitchcock,  29  Barb.  198. 

5  Nash  v.  Mitchell  (above). 

6  Bodine  v.  Killeen  (above). 

T  Wilcox  &  Gibbs  Co.  v.  Elliott,  14  Hun,  16. 

8  Thus  a  power  to  sign  and  indorse  checks,  <fec.,  does  not  authorize  him  to  charge 
her  separate  estate  by  a  post-dated  check,  when  she  has  not  the  funds  in  bank.  Nash 
v.  Mitchell  (above).  And  her  deed  expressing  a  pecuniary  consideration,  he  is  not 
impliedly  authorized  to  deliver,  without  payment  of  the  consideration,  and  for  his 
own  benefit.  Bank  of  Albion  v.  Burns,  46  N.  Y.  170. 

8  Peters  v.  Fowler,  41  Barb.  467.     But  see  pp.  241,  245  of  this  vol. 

10  Allen  v.  Fuller,  118  Mass.  402.     On  the  question  whether  goods  were  bought 
by  the  husband,  deceased,  or  the  wife,  who  had  a  separate  business,  the  executor  can- 
not give  in  evidence  that  the  wife,  after  the  death,  appropriated  the  goods  to  her 
own  use.     Johnson  v.   Hawkins,  5  Reporter,  184.     So  the  fact  that  plaintiff  had 
brought  a  prior  suit  for  the  same  against  the  defendant  and  her  husband  jointly, 
whicli  has  been  discontinued,  is  competent ;  but  the  plaintiffs  mny  explain  this  by 
showing  that  the  husband  was  joined  through  an  error  of  their  attorney.     Andrews 
v.  Matthews,  6  Cent.  L.  J.  156. 

11  Paragrnphs  9  to  17. 

12  This  rule  has  been  to  a  greater  or  less  extent,  or  with  some  qualification,  recog- 
nized in  Kansas  (Deering  v.  Boyle,  8  Kan.  529  ;  Wicks  v.  Mitchell,  9  Id.  80);  Mary- 
land (Hull  v.  Eccleston,  37  Md.  510;  acd  see  Conn  v.  Conn,  1  Md.  Oh.  Decis.  212); 
JUixsoitri  (Metropolitan  Bank  v.  Taylor,  62  Mo.  338) ;   Ohio  (Phillips  v.  Graves,  20 
Ohio  St.  390);   Wisconsin  (Todd  v.  Lee,  15  Wise.  305  ;  16  Id.  480). 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  183 

able  for  all  her  debts  and  engagements,  to  the  full  extent  to 
which  it  is  subject  to  her  own  disposal ; l  and  this  rule,  formerly 
regarded  as  matter  of  presumption,  resting  on  the  idea  that  the 
act  of  contracting  is  prlma  -facie  evidence  of  intent  to  charge 
her  estate,2  is  now  applied  inflexibly  to  written  obligations,  as  a 
rule  of  law ;  in  other  words,  the  making  of  a  written  contract 
by  a  married  woman  having  power  to  charge  a  separate  estate  is 
deemed  conclusive  evidence  of  intent  to  charge  it.3 

33.  The  New  York  Rule.]— The  rale  adopted  in  New  York 
and  Massachusetts,  and  followed  in  several  other  States,4  is,  that 
to  charge  the  separate  estate  of  a  married  woman  with  a  debt  not 
contracted  for  its  benefit, — as,  for  instance,  where  she  contracts 
as  surety, — there  must  be  direct  evidence  of  an  intention  to 
charge  it.  Her  mere  making  of  a  note  or  other  obligation  is  not 
enough ;  and  if  such  obligation  be  made,  the  intent  to  charge 
must  be  expressed  therein,  or  in  a  connected  instrument ; 5  and  if 
not  so  expressed,  parol  evidence  is  not  competent  to  prove  the 
intent  to  charge.6  Evidence  that  the  husband  received  the  consid- 
eration of  the  obligation,  and  used  it  in  managing  his  and  the 
wife's  property,  is  not  enough.7  Where  the  contract  is  by  parol, 
the  intent  to  charge  may  be  proved  by  parol,  if  no  specific  lien  is 
claimed ; 8  and  it  may  be  shown  by  such  circumstances  as  her 
having  an  estate,  on  the  faith  of  which  she  was  trusted,  and  by 


In  Mississippi,  it  has  been  held  that  the  intent  must  appear,  but  need  not  be  ex- 
pressed (Boarman  v.  Groves,  23  Miss.  280).  In  Alabama  (Brame  v.  McGee,  46  Ala. 
170);  Arkansas  (Dobbin  v.  Hubbard,  17  Ark.  189,  196);  and  Kentucky  (Lillard  v. 
Turner,  16  B.  Mon.  374;  Burch  v.  Breckinridge,  16  Id.  482),  the  English  rule  has 
been  applied  in  the  case  of  bills  in  equity  to  charge  a  separate  estate  held  under  the 
rules  of  equity,  and  not  under  the  statute. 

1  As  stated  by  HOAR,  J..  in  Willard  v.  Eastham,  15  Gray,  328,  approved  by  RED- 
FIELD,  J.,  in  1  Am.  L.  Keg.  N.  S.  665,  note. 

s  Johnson  v.-  Gallagher,  7  Jur.  X.  S.  273  ;  Schouler's  Dora.  Rel.  228. 

'  Metropolitan  Bank  v.  Taylor,  62  M<\  338;  Wicks  v.  Mitchell,  9  Kan.  80. 

4  The  New  York  rule  has  been  recognized  in  California  (Maclay  v.  Love,  25  Cal. 
867);  Connecticut  (Platt  v.  Hawkins,  43  Conn.  139);  Illinois  (Williams  v.  Hugunin, 
69  111.  214;  Furness  v.  McGovern,  73  Id.  337);  Indiana  (Kantrowitz  v.  Prather,  31 
Ind.  92  ;  Smith  v.  Howe,  31  Id.  233;  Hodson  v.  Davis,  43  Id.  258) ;  Massachusetts 
(Willar>l  v.  Eastham,  15  Gray,  828);  New  Jersey  (Armstrong  v.  Ross,  20  N.  J.  Eq. 
109);  Tennessee  (Letton  v.  Baldwin,  8  Humph.  200;  10  Id.  552).  In  Missouri,  where 
it  was  once  approved  (Miller  v.  Brown,  47  Mo.  504,  s.  c.  4  Am.  R.  345),  it  has  since 
been  nbandoned.  In  Alabama,  the  English  rule  has  been  held  not  applicable  where 
the  con>idi_Tation  was  purely  for  the  benefit  of  the  husband  (Nunu  v.  Givhan,  45  Id. 
870,  375). 

*  Sherwood  v.  Archer,  10  Hun,  73. 

•  Yale  v.  Dederer,   18  N.  Y.  265;    22  N.  Y.  450;  Willard  v.  Eastman,  15  Gray, 
828;    Manhattan  Brass,  Ac.  Co.  v.  Thompson,  58  N.  Y.  80.     It  has  been  held  else- 
where, that  if  there  is  a  written  contract  by  the  married  woman,  parol  evidence  of  her 
declarations  at  the  time  of  its  execution  that  it  was  not  to  bind  her  separate  prop- 
erty is  inadmissible  (7  B.  Mon.  293);  and  so  of  her  testimony  that  she  did  not  in- 
tend it  to,  and  equally  of  that  of  the  creditor  that  at  the  time  he  was  ignorant  that 
ehe  had  a  separate  estate.     Kitnm  v.  Weippert,  46  Mo.  532,  s.  c.  2  Am.  R.  541. 

'  Yale  v.  Dederer,  68  N.  Y.  329. 

8  Maxon  v.  Scott,  55  N.  Y.  247  ;  Baker  v.  Lamb,  11  Hun,  519.  Contra,  Shorter 
Y.  Nelsou,  4  Lu.na.  114. 


184:  ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE. 

her  promise  to  pay  as  soon  as  she  received  income  therefrom.1 
But  in  the  absence  of  other  evidence  of  an  intent  to  charge,  it 
will  not  be  inferred  from  her  subsequent  admissions  of  liability.2 

34.  —  direct  Benefit  to  separate  estate.'] — If  it  appears  that 
she  had  a  separate  business,  and  the  contract  was  made  in  the 
course  and  pursuit  of  it,  this  is  enough.  If  it  appears  that  she 
had  a  separate  property,  and  the  contract  was  made  for  its  direct 
benefit,  in  the  legal  sense,  this  is  enough.  The  fact  that  such 
kind  of  contracts  may  in  the  ordinary  course  of  affairs  be  made 
for  the  benefit  of  an  estate,  is  not  enough,  for  the  court  cannot 
presume  that  a  simple  contract,  with  nothing  on  its  face  to  in- 
dicate the  fact,  was  made  for  the  benefit  of  her  separate  estate;8 
but  it  must  appear  either  that  the  consideration  was  actually  ap- 
plied to  her  estate,4  or  came  actually  to  her  hands,  or  to  those  of 
an  agent  authorized  to  receive  it  on  her  behalf.5  The  fact  that 
the  consideration  came  to  her  hands  is  presumptive  evidence  that 
the  contract  was  for  the  benefit  of  the  estate ;  and  the  produc- 
tion of  her  personal  receipt,6  or  of  her  order  to  pay  a  third  per- 
son, with  proof  of  payment  to  him,7  is  presumptive  evidence  of 
this ;  and  proof  of  payment  to  her  husband,  if  he  were  shown 
to  be  her  general  financial  agent,  might  also  be  prima  facie 
enough.8  Such  evidence  may  be  rebutted  by  her  testimony,  or 
other  evidence,  that  the  consideration  neither  came  to  her  hands 
nor  those  of  her  authorized  agent,  nor  was  applied  to  the  use  of 
her  estate.9  But  if  once  received  by  her,  the  fact  that  she 
handed  it  to  her  husband,  who  misappropriated  it,  does  not  im- 
pair her  liability .10  And,  generally,  the  fact  that  in  the  particular 
case  the  contract  proved  the  reverse  of  beneficial,  in  a  business 
sense,  is  not  material.11  The  circumstance  that  work  was  done  or 
materials  were  used  for  the  improvement  of  her  estate,  if  shown 
to  have  been  within  her  knowledge,  does  not  raise  •  a  conclusive 
presumption  against  her,12  but  will  sustain  a  verdict.  Evidence 


»  Conlin  v.  Cantrell,  64  N.  Y.  217. 

8  Hansee  v.  DeWitt,  63  Barb.  63. 

*  Nash  v.  Mitchell  (above). 

4  As,  for  instance,  by  exonerating  it  from  an  incumbrance,  or  by  a  purchase. 

B  See  Williamson  v.  Dodge,  5  Hun,  497,  499 ;   White  v.  McNett,  33  N.  Y.  371. 

8  Treadwell  v.  Hoffman.  6  Daly,  210. 

7  Prendergast  v.  Borst,  7  Lans.  489. 

8  White  v.  McNett,  33  N.  Y.  371.     But  a  husband's  declarations  that  she  received 
it  for  the  use  of  her  separate  estate,  are  not  competent,  in  the  absence  of  evidence 
that  he  was  authorized  to  make  such  declarations.     Deck  v.  Johnson,  1  Abb.  Ct. 
App.  Dec.  497. 

'  White  v.  McNett  (above).  Where  the  contract  was  her  joint  obligation  with 
her  husband,  evidence  that  her  authorized  messenger  received  the  money,  but  imme- 
diately delivered  it  to  the  husbanil,  and  that  the  wife  never  received  it,  is  sufficient 
to  rebut  the  presump'ion  of  benefit  to  her  estate,  Prendergast  v.  Borst,  7  Lans.  489. 

10  Smith  v.  Kennedy,  13  Hun,  9. 

11  Thus  she  is  liable  for  her  attorney's  fees,  though  the  litigation  was  unsuccessful. 
Owen  v.  Cawley,  36  N.  Y.  600,  affi'g  13  Abb.  Pr.  13. 

14  Westgate  v.  Munroe,  100  Mass.  227 ;  2  Bish.  Mar.  W.  §  218. 


ACTIONS  BY  OR  AGAINST  HUSBAND  OR  WIFE.  185 

that  the  land  belonged  to  her  and  her  husband  as  tenants  in  com- 
mon, does  not  impair  her  liability.1  If  such  a  claim  rests  on  an 
allegation  of  ratification,  it  must  appear, — 1.  That  credit  was  not 
given  to  the  husband  alone.  2.  That  she,  with  full  knowledge 
that  the  materials,  &c.,  were  received  unpaid  for,  and  used  for  her 
property  to  the  enhancement  of  its  value,  acquiesced  in  such  use.8 

35.  A  ction  against  her  for  Necessaries.'] — To  charge  her  or 
her  separate  estate  for  family  necessaries  purchased  while  re- 
siding with  her  husband,  there  must  be  evidence, — 1.   Of  her 
separate  estate  or  business.     2.  That  the  credit  was  given  to  her. 
3.  That  she  intended  to  charge  her  estate.     4.  That  the  goods 
were  suitable  and  necessary.8 

36.  Action  against  her  for  fraud.'] — The  wife  can  take  no 
advantage  by  a  contract  fraudulently  made  by  her  husband  as  her 
agent,  in  the  use  of  her  separate  property ; 4  and  such  a  fraud  by 
her  agent  may  be  imputed  to  her,  by  the  rules  of  evidence  ap- 
plicable to  transactions  of  principal  and  agent.5 

37.  HusbancTs  Coercion  of  wife.'] — A  woman  sued  for  a  tort 
is  exonerated  if  she  proves  that  she  committed  it  by  coercion  of 
her  husband.     Physical  compulsion  need  not  be  shown,  but  moral 
coercion,  the  immediate  pressure  of  authority  and  intimidation ; 
and  in  this  two  elements  are  involved, — 1 .  His  presence,6  and 
2.  his  direction.7     His  direction  is  not  alone  enough.8    If   his 
presence  is  shown,  his  direction  or  command  is  presumed,  but 
this  presumption  is  not  conclusive.9    The  presumption  of  coercion 
may  be  rebutted  by  proof  that  she  instigated  the  tort,  or  by 
other  circumstances  showing  her  independent  and  free  concur- 
rence.10 


1  Burr  v.  Swrin,  118  Mass.  588.  But  both  may  be  held  jointly  liable.  Verill  v. 
Parker,  65  Me.  578. 

*  Miller  v.  Hollingsworth,  36  Iowa,  165. 

1  Wells'  Sep.  Prop,  of  M.  W.  465 ;  Demott  v.  McMnllen  8  Abb.  Pr.  N.  S.  335 ; 
Smith  v.  Allen,  1  Lans.  101.  And  see  Schouler's  Dom.  R.  79. 

4  Adams  v.  Mills,  60  N.  Y.  533,  affi'g  38  Super.  Ct.  (J.  &  S.)  16. 

5  Vanneman  v.  Powers,  7  Lans.  181.      Otherwise  if  the  property  was  not  her 
separate  estate.     Id.  56  N.  Y.  42;  Du  Flon  v.  Powers,  14  Abb.  Pr.  N.  S.  395. 

8  It  must  appear  that  he  wns  present  at  the  time  or  near  enough  to  keep 
her  under  his  immediate  influence  and  control.  Commonwealth  v.  Munsey,  112 
Mass.  289,  and  cases  cited.  On  the  question  of  coercion  in  a  particular  net  in  hia 
absence,  evidence  of  similar  acts  done  by  her  in  his  presence  and  for  the  same  pur- 
pose, is  competent.  Handy  v.  Foley,  121  Mass.  259.  If  he  was  present  at  some, 
only,  of  a  series  of  acts,  the  presumption  that  the  influence  extended  to  all  may  be 
negatived  by  the  circumstances.  State  v.  Cleaves,  59  N.  H.  298 ;  and  see  Schouler's 
Dom.  Rel.  104. 

'  Both  are  necessary.    Cassin  v.  Delaney,  38  N.  Y.  178. 

8  Id.     Contra,  Reeve,  Dom.  Re1.  150;  and  see  2  Bish.  Mar.  W.  §  257. 

9  Cassin  v.  Delaney  (above);  Schouler's  Dom.  Rel.  101.     It  is  now  regarded  as  a 
slight  presumption,  and  may  be  rebutted  by  slight  circumstances.      APPLETON,  C.  J , 
State  v.  Cleaves,  69  Me.  298,  s.  c.  8  Am.  R.  422. ;   Formerly  it  was  held  conclusive. 
1  Greenl.  Ev.  §  28;  3  id.  3. 

10  2  Whart.  Ev.  §  1267;  citing  Marshall  v.  Oakes,  51  Me.  308. 


CHAPTER  VII. 

ACTIONS  AFFECTING  PARTIES  IN  A    JOINT  OR   COMMON  INTEREST 

OR  LIABILITY. 

1.  The  general  principle.  6.  — ^oint  interest  or  liability. 

2.  Joint  debtors.  7.  —  joint  promisees. 

3.  Defendants  absent  or  defaulted.  8.  Notice. 

4.  Admissions,  <tc.,  of  persons  not  par-      9.  Declarations  of  conspirators  or  con- 

ties,  federates. 

5.  Admissions,  <tc.,  of    parties    having     10.  Preliminary  question  as  to  connec- 

common  interest  or  liability.  tion. 

1.  The  general  principled] — Where  there  are  two  or  more 
plaintiffs,  or  two  or  more  defendants,  alleged  to  have  a  joint  or 
common  interest  or  liability,  the  general  principle  by  which  the 
admissibility  of  evidence  affecting  a  part  of  them  is  to  be  tested 
is  this  :  If  the  action  or  proceeding  is  one  in  which  a  separate 
judgment  can  be  given  against  one  irrespective  of  his  fellows, 
evidence  competent  as  against  him  is  admissible,  irrespective  of 
the  state  of  the  evidence  as  against  his  fellows ; *  and  the  court 
should  instruct  the  jury  if  necessary,  that  it  is  competent  only  as 
against  him,  and  will  not  sustain  a  verdict  against  his  fellows, 
unless  connection  is  shown.  If  the  case  is  one  in  which  a  sepa- 
rate judgment  cannot  be  had,2  evidence  competent  against  any  one 
is  admissible  in  the  following  cases :  1.  Where  the  others  have 
been  defaulted,3  or  their  liability  is  conceded  on  the  trial.4  2. 
Where  there  is  other  evidence  against  them  on  the  same  point, 
sufficient  to  go  to  the  jury,5  or  counsel  undertake  to  adduce  such 


1  Thus,  if  the  action  is  against  maker  and  intlorser.or  on  a  several  bond,  or  a  joint 
and  several  bond,  or  against  two  for  a  tort,  the  admissions  and  declarations  of  either 
defendant  are  competent  against  him,  if  a  separate  judgment  against  him  is  sought. 
But  if  the  action  is  unalterably  joint,  or  an  action  in  rtm,  or  a  proceeding  in  the  na- 
ture of  such  an  action, — as  usually  in  case  of  probate  of  a  will, — other  evidence  to 
connect  the  other  parties  in  interest  with  the  declarant  may  be  requisite. 

3  Under  the  new  procedure,  separate  judgment  maybe  had  in  favor  of  one  of  two 
plaintiffs,  if  he  has  a  good  cause  of  action,  and  against  the  other  who  has  not.     Simar 
v.  Canaday,  63  N.  Y.  298,  and  see  Quinn  v.  Martin,  54  Id.  660 ;    and  so  also  against 
one  of  two  defendants  sued,  even  on  an  alleged  joint  obligation,  if  he  is  proved  to  be 
alone  liable,  and  in  favor  of  the  other  who  is  not.     Brumskill  v.  James,  11  N.  Y.  '294. 
But  in  such  cases  the  evidence  may  be  excluded  on  the  ground  of  substantial  vari- 
ance and  surprise. 

8  Paragraph  3  (below). 

4  If  one  defendant  offers  evidence  charging  the  other  with  joint  liability,  the 
other  must  object  if  it  is  not  competent  against  him.     Hennanos  v.  Duvigneaud,  10 
La.  Ann.  114. 

6  The  successive  acts  or  declarations  of  each  are  equivalent  to  a  joint  declaration 
by  all.  Haugliey  v.  Stridden,  2  Walts  &  S.  411.  So,  for  another  instance,  where 

[186J 


ACTIONS  AFFECTING  PARTIES  IN  A  JOINT  INTEREST.       187 

evidence  in  due  course.1  3.  Where  evidence  of  the  acts,  admis- 
sions or  declarations  of  one  party  is  accompanied  with  other  in- 
dependent evidence  that  his  relation  to  the  others  was  sucli  as  to 
render  it  just  to  impute  his  conduct  to  them.2 

2.  Joint  debtors.'] — Where  plaintiff  undertakes  to  prove  a  joint 
liability,  if  all  the  defendants  are  before  the  court,  he  must  prove 
not  only  the  contract,  but  the  connection  of  each  defendant  in 
the  tie  which  sanctions  a  joint  liability  ;  and  this  connection  must 
be  proved  as  to  each  defendant,  by  evidence  competent  as  against 
him.     The  fact  that  they  are  co-defendants  does  not  allow  him 
to  prove  the  connection  of  one,  by  the  declarations  of  another. 
The  declaration  of  one  that  he  was  a  partner,  or  otherwise  jointly 
connected  with  the  others,  is  not  to  be  excluded  because  it  asserts 
the  liability  of  the  others  ; 3   but  its  only  effect  is  as  against  him, 
and  there  must  be  other  evidence  with  a  similar  effect  against 
each  of  the  others. 

3.  Defendants,  Absent  or  Defaulted.'} — Where  some  of  the 
alleged  joint  debtors  admit  their  individual  and  joint  liability, 
either  by  pleading  or  otherwise,  or  are  proceeded  against  as  ab- 
sentees so  that  no  personal  judgment  can  be  rendered  against 
them  or  their  individual  property,  plaintiff  is  only  obliged  to  pro- 
duce evidence  which  will  be  sufficient,  as  against  those  who  ap- 
pear and  defend  the  suit,  to  establish  their  joint  liability  with 
their  co-defendants.      In  such  cases,  the  acts  and  admissions  of 
the  parties  who  thus  appear  and  defend  are  legal  evidence  against 
themselves,  not  only  of  their  own  indebtedness,  but  also  of  their 
joint  indebtedness  with  their  co-defendants.4 

In  an  action  for  a  tort,  evidence  of  admissions  or  declarations 
by  a  defendant  who  has  defaulted,  if  relevant  to  the  measure  of 
damages,  is  competent  as  against  him,  notwithstanding  it  may 
refer  to  the  others ; 5  but  it  should  be  offered  for  this  purpose, 
and  not  as  evidence  against  those  who  defend.6 

4.  Admissions,  &c.,  of  persona  Not  Parties  to  the  action.'] — The 
fact  that  one  who  is  not  a  party  to  the  action  was  a  party  to  the 
contract  sued  on,  does  not  alone  render  his  admissions  and  declara- 


notice  to  both  of  two  owners  must  be  proved,  evidence  of  actual  service  on  one  hav- 
ing been  given,  the  admission  of  the  other  that  he  had  notice  would  be  competent. 

1  Thompson  v.  Richards,  14  Mich.  172,  187;  Forsyth  v.  Ganson,  5  Wend.  558. 

9  See  paragraphs  5,  <fec.  (below).  These  rules  are  subject  to  some  qualification 
and  peculiar  applications  in  rase  of  such  distinctive  classes  of  persons  as  Heirs  and 
devisees,  Husband  and  wife,  Partners,  <fec.,  elsewhere  treated;  and  in  all  cases,  <>f 
course,  admissions  and  declarations  may  be  competent  against  another  than  the  de- 
clarant, by  the  rule  ofresgestce,  or  if  made  in  his  presence,  or  if  made  in  the  course 
of  duty,  or  against  interest  by  a  person  since  deceased,  or  may  be  received  to  dis- 
credit the  declarant  as  a  witness,  or  on  other  such  special  grounds. 

8  Lenhart  v.  Allen,  32  Penn,  St.  812. 

4  Halliday  v.  McDougall,  22  Wend.  264,  270,  and  cases  cited, 

5  Boslwick  v.  Lewis,  1  Day  (Conn.)  33 ;  Daniels  v.  Potter,  M.  «fc  M.  601. 
«  Tenth  Nat.  Bk.  v.  Darragh,  3  Supm.  Ct.  (T.  <fe  C.)  138. 


188  ACTIONS  AFFECTING  PARTIES 

tions  competent  against  those  who  sue  or  are  sued.1  It  must  first 
appear  that  he  is  the  real  party  in  interest,2  or  other  special 
grounds  must  be  shown  for  imputing  his  acts  to  the  party  against 
whom  they  are  offered  ;  and  the  rule  is  the  same  as  to  one  named 
as  a  defendant  on  the  record,  but  who  has  never  been  served  nor 
appeared.8 

5.  Admissions  and  declarations  of  parties  having  a  Common 
interest  or  liability '.] — A  common  or  several  interest,  or  a  com- 
mon or  merely  several  liability,  does  not  render  the  hearsay  of 
the  one  party  admissible  against  the  other.     Tenancy  in  common, 
that  is  in  fractional  shares,  whether  of  real 4  or  personal 5  proper- 
ty, is  not  enough  to  render  the  admissions  or  declarations  of  one 
co-tenant,  admissible  against  the  other ;  but  of  course  they  may  be 
rendered  competent   by  showing  that  they  were  made  in  the 
presence  and  hearing  of  the  other,6  or  otherwise  brought  to  his 
knowledge. 

6.  — joint  interest  or  liability. ~] — In  case  of  joint1  interest 
or  liability,  the  principle  upon  which  the  admissions  and  declara- 
tions of  one  are  admissible  against  the  other,  is  that  of  agency. 
Where  the  one  may  be  deemed  to  have  been,  at  the  time  the 
words  passed,  the  agent  of  the  other  in  the  matter,  they  may  be 
proved  against  both.      Formerly  the  common  law  courts  applied 
a  technical  rule  that  a  mere  Joint  interest  or  obligation,  without 
anything  to  indicate  actual  intent,  raised  a  sufficient  legal  pre- 
sumption of  agency  for  this  purpose ; 8   and  this  rule  is  still  ap- 
plied in  England  "  and  in  some  of  our  States.10 

1  Hamlin  v.  Fitch,  Kirby  (Conn.\  174 ;  Abel  v.  Forgue,  1  Root,  502.  Nor  Is  the 
admission  of  such  person,  that  he  was  jointly  interested,  competent  in  support  of  a 
plea  in  abatement.  Storrs  v.  Wetmore,  Kirby  (Conn.),  203. 

*  Bucknam  v.  Barnum,  15  Conn.  68,  73. 

8  Peck  v.  Yorks,  47  Barb.  131. 

4  Dan  v.  Brown.  4  Cow.  483,  492. 

6  McLellan  v.  Cox,  36  Me.  95. 

6  Crippen  v.  Morse,  49  N.  Y.  63.     Evidence  of  a  declaration  by  one,  of  what  he 
had  heard  the  other  say,  not  competent.     Quinlan  v.  Davis,  6  Whart.  169. 

7  As  to  the  test  of  the  distinction  between  joint  and  common  interests  in  contracts, 
see  1  Addison  on  Contr.  78-88;  1  Pars,  on  Contr.  11;  1  ytory  on  Contr.  §  52,  <fec. 
A  bill  of  parcels  delivered  on  a  sale,  and  mentioning  several  as  the  sellers,  is  not 
conclusive  evidence  that  the  sale  was  joint,  but  parol  evidence  is  competent  to  show 
that  one  of  those  named  was  really  the  seller.     Harris  v.  Johnson,  3  Cranch,  311. 

On  a  doubtful  question  whether  an  account  with  plaintiffs  was  joint  on  the  part  of 
the  defendants,  evidence  that  one  had  a  separate  account  at  the  same  time,  is  compe- 
tent. Quincey  v.  Young,  63  N.  Y.  370,  rev'g  5  Daly,  327. 

A  conveyance  or  mortgage  made  by  one  defendant  is  not  competent  evidence  in 
favor  of  the  other  to  show  that  the  subject  of  the  conveyance  was  the  sole  property 
of  the  other.  Harris  v.  Wessels,  5  Hun,  645. 

8  1  Pars,  on  Contr.  24;  Shoemaker  v.  Benedict,  11  N.  Y.  175,  181,  and  cas.  cit. 
»  Steph.  Dig.  L.  Ev.  art.  17. 

10  Black  v.  Lamb.  1  Beasl.  N.  J.  108,  122.  See  also  Cady  v.  Shepherd,  11  Pick. 
400;  Walling  v.  Rosevelt,  16  N.  J.  L.  41 ;  Lowle  v.  Boteler,  4  Harr.  &  M.  346.  The 
rule  stated  by  PHILLIPS,  is  that,  as  a  general  principle,  "  in  a  civil  suit  by  or  against 
several  persons,  who  are  proved  to  have  a  joint  interest  in  the  decision,  a  declaration 
made  by  one  of  those  persons,  concerning  a  material  fact  within  his  knowledge,  is  ev- 


IS  A  JOINT  OR  COMMON  INTEREST.  189 

Under  the  freer  rules  of  evidence  now  applied,  it  is  better  to 
.be  prepared  with  some  evidence,  at  least,  beside  the  mere  fact  of 
a  joinder  in  interest,  to  sanction  the  inference  that  one  might 
speak  for  the  other.1  Joint  possession  alone,  may  be  sufficient  to 
admit  evidence  of  the  separate  contemporaneous  declaration  of 
either  possessor,  as  characterizing  the  joint  possession ; 2  but  this 
is  on  the  principle  that  it  is  part  of  the  res  gestce.  Joint  posses- 
sion is  not  enough  to  render  other  declarations  of  one  binding  on 
the  other,  except  in  some  cases  where  the  latter  claims  under  the 
possession  in  the  former.  A  joint  business  or  adventure  fur- 
nishes usually  ground  for  inferring  the  agency  of  one  to  speak 


idence  against  him,  and  against  all  who  are  parties  with  him  to  the  suit."  He  adda 
in  effect,  that  a  joint  interest  in  the  decision  is  not  essential  where  there  is  a  joint 
interest  in  the  transaction  (1  Phil.  Ev.  491).  And  the  American  editor  adds,  that 
where  this  rule  is  applied,  it  is  necessary  that  it  should  appear  that  the  defendants 
had  an  existing  joint  interest  when  the  admission  was  made.  Id.  n.  1. 

GREENLEAF  states  the  rule  more  loosely :  there  must  be  "  some  joint  interest,  <fec., 
*  *  *  In  the  absence  of  fraud,  if  the  parties  have  a  joint  interest  in  the  matter 
in  suit,  whether  as  plaintiffs  or  defendants,  an  admission  made  by  one  is,  in  gen- 
eral, evidence  against  all.  They  stand  to  each  other,  in  this  respect,  in  a  relation 
similar  to  that  of  existing  copartners"  (citing  Whitcomb  v.  Whiting,  2  Dougl.  652). 
1  Greenl.  Ev.  §  174. 

TAYLOR  more  guardedly  says :  "When  several  persons  are  jointly  interested  in 
the  subject-matter  of  the  suit,  the  general  rule  is,  that  the  admissions  of  any  one  of 
these  persons  are  receivable  against  himself  and  fellows,  whether  they  be  all  jointly 
suing  or  sued,  or  whether  an  action  be  brought  in  favor  of  or  against  one  or  more  of 
them  separately;  provided  the  admission  relate  to  the  subject-matter  in  dispute,  and 
be  made  by  the  declarant  in  his  character  of  a  person  jointly  interested  with  the 
party  against  whom  the  evidence  is  tendered."  1  Tayl.  Ev.  655,  §  674. 

STARKIK  tersely  indicates  the  true  test.  Stating  that  an  admission  against  interest 
is  deemed  true  against  the  one  who  made  it,  he  adds:  "The  same  rule  it  will  be 
seen  applies  to  admissions  by  tho^e  who  are  so  identified  in  situation  and  interest 
with  a  party  that  their  declarations  may  be  considered  to  be  made  by  himself. 
1  Stark.  Ev.  50. 

STEPHEN  says  nothing  of  joint  owners,  and  classes  all  joint  contractors  with  part- 
ners, saying  that  "  Partners  and  joint  contractors  are  each  other's  agents  for  the  pur- 
pose of  making  admissions  against  each  other  in  relation  to  partnership  transactions 
or  joint  contracts ;  "  but  not  for  the  purpose  of  acknowledgment  by  promise  or  pay- 
ment, to  remove  the  bar  of  the  statute  of  limitations  when  once  operative,  against  a 
simple  contract.  Steph.  Dig.  Ev.  art.  17. 

Where  the  admission  of  one  jointly  interested  is  competent,  the  relative  small- 
ness  of  the  amount  of  his  interest  cannot  render  it  incompetent.  Black  v.  Lamb, 
1  Beasl.  108,  122. 

1  In  Lewis  v.  Woodworth,  2  N.  T.  613,  it  was  determined  that  an  admission 
made  by  one  joint  promissor,  although  acted  on  by  a  third  person,  could  not  estop 
the  other  promissor ;  and  it  was  put  upon  the  ground  that  simple  joint  contractors 
are  not,  like  partners,  agents  for  each  other.  In  Van  Keuren  v.  Pannalee,  Id.  528, 
and  Shoemaker  v.  Benedict,  11  Id.  176,  the  same  court  more  fully  discussed  the  prin- 
ciple, and  gave  almost  unanimous  sanction  to  the  doctrine  that  a  joint  debtor  has 
not,  merely  as  such,  any  authority  to  make  admissions  which  will  affect  his  fellows 
(2  N.  Y.  628,  11  N.  Y.  185);  and  the  justice  of  their  conclusion  in  repudiating  the 
English  doctrine  is  vindicated  by  the  subsequent  English  legislation  adopting,  to  a 
great  extent,  the  rulo  in  respect  to  acknowledgments  by  copartners  after  dissolution, 
to  which  this  doctrine  led  them.  19  it  20  Vic.  c.  97.  Of  the  later  New  York  cases 
on  the  point,  Ellenwood  v.  Fults  (ti3  Barb.  321,  S80),  seems  in  accordance  with  the 
rule  stated  in  the  text.  Barrick  v.  Austin,  21  Barb.  241,  244,  is  contrary  to  it.  In 
neither  is  the  principle  discussed. 

8  Dawson  v.  Callaway,  18  Geo.  573,  580. 


190  ACTIONS  AFFECTING  PARTIES 

and  act  for  the  other,1  and  where  the  agency  is  sought  to  be  in- 
ferred from  the  course  of  business,  evidence  of  former  joint 
transactions  in  the  same  employment  or  business,  even  for  several 
years  back,2  and  with  other  persons,8  is  competent,  for  the  pur- 
pose of  aiding  the  conclusion  that  the  transactions  in  suit  were 
also  joint ;  and  an  authority  in  one  to  speak  for  both  may  be  in- 
ferred from  the  fact  of  his  activity,  and  the  knowledge  and  silence 
of  the  others  ;4  but  evidence  that  one  advanced  funds,  or  had  an 
interest  as  a  secured  creditor,  is  not  alone  enough.  The  joint 
authority  or  agency  must  relate  to  the  subject  of  the  joint  title 
or  adventure.5  Where  an  admission  or  declaration  is  received  by 
virtue  of  such  a  relation,  it  must  be  shown  to  have  been  made 
during  the  continuance  of  the  relation ;  and  if  it  consists  of  a 
writing,  the  date  is  not,  for  this  purpose,  sufficient  evidence  of 
the  time  when  it  was  made. 

The  admissions  and  declarations  of  one  when  thus  admissible 
against  others,  are  competent  equally  against  both,  but  are  not 
evidence  against  the  others  in  exoneration  of  the  declarant — as, 
for  instance,  to  show  that  he  was  merely  their  surety ; — and  in  all 
cases  they  are  rendered  incompetent  by  evidence  of  fraud. 

7.  — joint  promisees.'] — In  so  far  as  joint  promisees 6  or  obligees7 
are  the  agents  of  each  other  for  the  purpose  of  collection,  the  ad- 
missions and  declarations  of  either  are  competent  in  an  action  by 
both  against  both. 

8.  Notice.'] — Notice  to  one  of  two  joint  promisors 8  or  joint 
tenants  or  purchasers,9  is  not  notice  to  the  other,  unless  agency 
is  shown. 

9.  Declarations  of  conspirators  or  confederates.] — The  famil- 
iar rule  that  where  several  persons  are  engaged  together  in  the 
furtherance  of  a  common  illegal  design,  the  acts  and  declarations 
of  one  confederate,  made  in  pursuance  of  the  original  concerted 
plan  and  with  reference  to  the  common  object,  are  competent 


1  Thus  where  one  of  the  several  proprietors  of  a  theatre  made  the  contract  in  suit 
on  behalf  of  all  the  proprietors,  the  declarations  of  one  of  them  were  held  admissible 
against  all.  Kemble  v.  Farren,  3  Carr.  &  P.  623. 

*  Trego  v.  Lewis,  68  Pa.  St.  463. 

8  Bowers  v.  Still,  49  Penn.  St.  66. 

4  B  ink  of  U.  S.  v.  Lyman,  20  Vt.  666. 

5  Thus  those  who  own  part  of  a  ship  as  copartners  and  another  part  as  tenants  in 
common,  may  bind  each  other  as  to  the  former  interest  by  their  admissions,  but  as 
to  the  latter  interest  they  may  not,  without  other  evidence  of  agency  than  the  com- 
mon interest. 

6  Pringle  v.  Chambers,  1  Abb.  Pr.  58. 

'Cross  v.  Bedingfield,  12  Sim.  35;  Black  v.  Lamb.  1  Beasl.  (N.  J.)  108,  122. 
Whether  these  cases  are  now  to  be  deemed  authority  with  us,  for  tlie  doctrine  that 
the  joint  interest  alone  is  enough,  see  p.  189,  n.  If  the  rule  goes  farther  than  stated 
in  the  text,  it  should  be  only  within  the  limits  stated  by  Phillips  and  Taylor. 

8  See  Lewis  v.  Woodworth,  2  N.  Y.  513. 

»  Wade  on  Notice,  312,  §  684.     Compare  Spencer  v.  Campbell,  9  Watts  <fc  S.  32. 


IN  A  JOINT  OR  COMMON  INTEREST.  191 

evidence  against  the  others,  though  made  in  their  absence,1  does 
not  rest  on  the  joinder  of  parties,  but  rather  on  the  principle  of 
legally  imputed  agency ;  and  the  evidence  is  confined  to  that 
which  the  rule  of  the  res  gvstm  admits,8  and  excludes  narratives 
of  past  transactions.4 

10.  Preliminary  question  as  to  Connection.'] — The  connection 
between  the  parties  which  renders  the  declaration  of  one  compe- 
tent against  the  other,  can  never  be  proved  by  the  declaration 
itself,  but  must  be  separately  proved,  as  the  foundation  for  ad- 
mitting the  declaration.  Strictly  it  ought  to  be  proved  first,  but 
it  is  in  the  discretion  of  the  court  to  allow  the  declaration  to  be 
proved  first  on  the  promise  of  counsel  to  connect  afterward,5  and 
it  is  not  error  to  allow  this  even  in  cases  of  conspiracy.6  Where 
a  joint  judgment  is  sought,  there  is  the  more  reason  for  requiring 
the  connection  to  be  first  proved ;  and  in  this  class  of  cases,  as 
well  as  where  the  declaration  is  that  of  an  alleged  agent,  it  is  the 
better  opinion  that  the  question  of  connection  is  a  preliminary 
question  for  the  judge,7  who  should  exclude  the  evidence,  or, 
when  it  has  been  admitted  by  anticipation,  strike  it  out  or  direct 
the  ^jury  to  disregard  it,  if  it  is  not  as  matter  of  law  sufficient  to 
lay  the  foundation.  In  those  cases  where  a  separate  judgment  is 
sought,  as  well  as  in  all  cases  in  those  courts  where  the  question 
of  connection  is  deemed  one  for  the  jury  instead  of  for  the  judge, 
the  evidence,  if  received  against  the  declarant,  should  be  accorn- 


1  The  declarations  of  one  not  a  party  may  be  admitted  under  the  rule.  American 
Fur  Company  v.  U.  8.  2  Pet.  358,  364 ;  Preston  v.  Bowers,  13  Ohio  St.  1,  13. 

3  Lincoln  v.  Claflin,  7  Wall.  132;  Cuyler  v.  McCartney,  40  N.  Y.  221,  rev'g  33 
Barb.  165.  The  objection  of  absence  in  such  n  case  goes  only  to  the  weight  of  the 
evidence.  Bushnell  v.  City  Bank,  20  La.  An.  464. 

3  Apthorp  v.  Comstock,  2  I'aige,  482,  488. 

4  Clinton  v.  Estes,  20  Ark,  216 ;  Patton  v.  The  State,  6  Ohio  St.  467. 

6  Bowers  v.  Still,  49  Penn.  St.  65,  s.  p.  Cobb  T.  Lent,  4  Greenl.  (Me.)  503. 

6  Place  v.  Minster.  65  N.  Y.  89 ;  State  v.  Ross,  29  Mo.  32,  50.  It  is  true,  that  it 
is  of  no  consequence  (on  the  question  of  error)  in  what  order  the  testimony  was  in- 
troduced it  it  in  the  end  proves  relevant  (Jenne  v.  Jo-lyn,  41  Vt.  478);  but  if  it  doea 
not  prove  relevant,  the  judge's  instructions  will  often  fail  to  remove  the  unjust  im- 
pression produced.  In  cases  of  confederacy,  particularly,  the  foundation  for  the 
admission  of  the  evidence  should  be  scrutinized  with  caution,  lest  the  jury  be  led  to 
infer  a  conspiracy  from  the  declarations  of  strangers.  Burke  v.  Miller,  7  Cush.  547, 
550. 

1  The  sufficiency  of  the  evidence  of  the  necessary  foundation  is  held  a  question 
for  the  judge,  in  New  York,  Jones  v.  Hurlbut,  39  Barb.  403 ;  Massachusetts,  Burke  v. 
Miller,  7  Cush.  647,  550;  AIi**ouri,  State  v.  Ross,  29  Mo.  32,  51;  Iowa,  State  v.  Nash, 
7  Iowa,  347,  384;  and  see  Dickinson  v.  Clarke,  5  W.  Va.  280.  But  the  ruling  that 
it  is  sufficient  usually  means  merely  that  it  is  sufficient  to  go  to  the  jury,  who  may 
still  pass  on  the  sufficiency  of  the  connection,  as  well  as  on  the  sufficiency  of  the  nd- 
mission  or  declaration,  if  the  connection  be  shown.  Commonwealth  v.  Brown,  14 
Gray,  419,  432.  But  see  Jones  v.  Hurlburt,  39  Barb.  403.  Hence,  if  the  necessary 
connection  is  shown  by  t!>e  testimony  of  a  competent  witness  the  court  will  not 
question  his  credibility,  but  leave  it  to  the  jury.  Commonwealth  v.  Crowninshie'd, 
10  Pick.  4!»7.  It  seems  to  be  treated  as  a  question  f'»r  the  jury,  in  the  fii  st  instance, 
in  Pmns'/lvania,  Helser  v.  McGrath,  58  Penn.  St.  458;  Kentucky,  Oldharn  v.  Bentley, 
6  B.  Mon.  428,  431. 


192       ACTIONS  AFFECTING  PARTIES  IN  A  JOINT  INTEREST. 

panied  by  instructions  clearly  pointing  out  the  distinction  be- 
tween evidence  admitted  for  the  purpose  of  establishing  the  con- 
federacy or  other  connection,  and  that  which  is  to  be  considered 
only  after  the  connection  has  been  proved  and  found  by  them. 
The  jury  should  also  be  instructed  as  to  the  persons  who  must  be 
found  united  in  the  confederacy.1 


1  Wiggins  v.  Leonard,  9  Iowa,  194.  But  if  there  is  any  evidence  to  connect,  it  is 
not  error  to  omit  such  instructions  when  they  are  not  asked  for.  Boswell  v.  Black- 
man,  12  Geo.  691.  If  connection  is  disproved,  it  is  error  to  leave  the  question  to 
the  jury.  Page  v.  Scranton,  39  Me.  400. 


CHAPTEE  VIII. 

ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 

I.  GENERAL  PRINCIPLES.  II.  ACTIONS  BY  OFFICERS — continued. 

1.  Different  proof  of  title,  in  different         11.  Action  for  emoluments. 

cases. 

2.  Legal  title.  III.  ACTIONS  AGAINST  OFFICERS. 
8.  Contracts  in  official  capacity.  12.  Plaintiff's  pleading. 

4.  Acts  by  part  of  board  or  body.  13.  Plaintiff's  proof  of  official  character 

5.  Demand  and  notice.  of  defendant  or  his  deputy. 

6.  Former  judgments.  14.  Cause  of  action. 

15.  Return,  as  against  the  officer. 

II.  ACTIONS  BY  OFFICERS.  16.  Public  action  for  refusal  to  serve. 

7.  Pleading  by  officer  suing  as  such.  17.  Pleading  by  officer  defendant. 

8.  Proof  of  title.  18.  Defendant's  proof  of  official  charac- 

9.  Process  as  supporting  a  cause  of  ter  in  justification. 

action.  19.  Process  as  a  protection  to  defead- 

10.  Return,  adduced  in  his  own  favor.  ant. 

I.  GENERAL  PRINCIPLES. 

1.  Different  proof  of  title,  in  different  cases.~\ — There  are 
three  principal  grades  of  proof  of  the  official  character  of  an  al- 
leged officer,  adequate  in  different  classes  of  cases :  1.  That  he 
was  officer  de  jure,  that  is,  with  legal  title.  2.  That  he  was 
officer  de  facto,  that  is,  that  he  acted  as  such,  with  color  of  title,1 
though  it  may  be  without  legal  title.  3.  That  he  assumed  to  act 
as  such  in  the  transaction  in  question,  though  it  may  be  without 
color  of  title.  It  will  be  seen,  in  this  chapter,  that :  1.  On  an  is- 
sue directly  between  the  officer  and  the  public,  whether  in  an  ac- 
tion by  the  State,  or  by  or  against  other  public  officers,  strict 
proof  of  title  is  necessary.8  2.  On  an  issue  between  third  per- 
sons, or  between  them  and  the  officer,  or  between  them  and  the 
public,  evidence  that  he  was  an  officer  de  facto  is  always  sufficient 
and  conclusive  against  every  party,  and  equally  in  favor  of  any 
party  but  the  officer  himself,8  while,  in  his  favor,  it  is  commonly 
regarded  as  competent,  for  the  purpose  of  raising  a  presumption 
that  he  was  officer  dejure.  3.  On  an  issue  between  a  third  per- 
son and  the  alleged  officer,  evidence  that  he  acted  as  such  in  the 
transaction  is  competent  and  usually  conclusive  evidence  of  his 


1  To  constitute  color  of  office  there  must  be  some  color  of  election  or  appoint- 
ment, or  at  least  an  exercise  of  the  office,  and  a  public  acquiescence  for  a  sufficient 
length  of  time  reasonably  to  authorize  the  presumption  of  at  least  colorable  elec- 
tion or  appointment.  State  v.  Carroll,  88  Conn.  449,  s.  o.  9  Am.  R.  409,  427;  Wil- 
cox  v.  Smith,  5  Wend.  231. 

3  Paragraphs  8  and  13  below.     Contra,  1  Greenl.  T>.  115,  §  92. 

8  The  English  rule,  embodied  in  GreeuleaPs  statement,  allows  this  cvidoaca  to  be 
conclusive  in  favor  of  the  officer. 

13  [193] 


194  ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 

official  character,  as  against  him  ;  and  evidence  that  he  was  recog- 
nized as  such  by  the  other  party,  is  competent  and  sufficient, 
though  not  conclusive  evidence  thereof,  against  such  party. 

2.  Legal  title.} — Where  legal  title  is  in  issue,  and  strict  proof 
is  required,  the  certificate  of  election   or  commission   coming 
from  the  proper  source,  is  presumptive  evidence  of  his  right  to 
the  office;1  but  it  is  only  matter  of   evidence,   and  its   exist- 
ence is  not  essential,  unless  made  so  by  statute.3     Thus,  if  the 
statute  simply  authorizes  a  judge  to  appoint  without  more,  proof 
of  writing,  is  not  necessary,  but  proof  of  an  oral  appointment  by 
some  open,  unequivocal  act,  is  sufficient,  and  the  subsequent  failure 
to  sign  an  order  entered  for  appointment  does  not  affect  the  title 
to  the  office.8   If  a  writing  exists,  however,  it  should  be  produced 
as  the  best  evidence,  or  should  be  accounted  for,  to  lay  a  founda- 
tion for  secondary  evidence,  in  cases  where  strict  proof  of  title  is 
required.     Where  appointment  must  be  proved,  extrinsic  evi- 
dence is  inadmissible  to  show  that  Robert,  the  officer  de  facto, 
was  the  person  intended  to  be  appointed  by  the  name  of  William, 
used  in  the  commission.4    Production  of  a  certified  copy  of  the 
appointment  on  file  does  not  dispense  with  all  proof  of  authen- 
ticity of  the  original.5    If  the  statute  requires  a  written  oath  to 
be  filed,  the  taking  of  the  oath  cannot  be  proved  by  a  memoran- 
dum at  the  foot  of  the  commission,  "sworn  before  me,"  with 
date  and  signature  of  the  magistrate.6    But  a  copy  of  the  oath 
duly  certified  by  the  officer  with  whom  it  was  duly  filed,  is  com- 
petent.7   Where  it  is  necessary  to  show  a  vacancy  to  justify  an 
appointment,  it  is  enough  to  show  that  the  office  was,  as  matter 
of  law,  vacated  by  a  prior  incumbent,  without  proving  that  there 
was  no  other  new  appointment.8 

3.  Contracts  in  official  capacity.'] — A  contract  made  by  a  pub- 
lic officer,  connected  with  a  subject  fairly  within  the  scope  of  his 
authority,  is  presumed  to  have  been  made  in  his  official  capacity.9 
If  the  other  party  was  aware  of  his  official  character,  this  pre- 
sumption arises,  although  he  used  language  importing  a  personal 
promise,10  and  it  is  not  necessary  to  show  that  he  said  he  acted  as 


1  2  Dill.  Mun.  C.  807,  §  716,  s.  p.  State  ex  rel.  Leonard  v.  Sweet,  27  La,  Ann. 
541 ;  Wood  v.  Peake,  8  Johns.  69. 

s  Marbury  v.  Madison,  1  Cranch,  137 ;  People  ex  rel.  Babcock  v.  Murray,  6  Hun, 
42. 

*  Hoke  v.  Field,  10  Bush,  144,  s.  o.  19  Am.  R.  68.  As  to  mode  of  proving  ap- 
pointment by  vote  of  municipal  body, — see  Canniff  v.  Mayor,  <fec.  of  N  Y.  4  E.  D. 
Smith,  430. 

4  Bench  v.  Otis,  25  Mich.  29. 

5  Curtis  v.  Fay,  37  Barb.  67. 

6  Halbeck  v.  Mayor,  <fcc.  of  N.  Y.  10  Abb.  Pr.  439. 

1  Devoy  v.  Mayor,  <fec.  of  N.  Y.  35  Barb.  264,  s.  c.  22  How.  Pr.  226. 
8  Canniff  v.  Mayor,  <fcc.  of  N.  Y.  4  E.  D.  Smith,  430.   Compare  Randall  v.  Smith, 
1  Den.  214. 

»  Parks  v.  Ross.  11  How.  U.  S.  362. 
10  Olney  v.  Wickes,  18  Johns.  127. 


ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS.  195 

officer.1  The  question  is  one  of  intent  and  credit,  with  a  strong 
presumption  against  personal  liability.  Where  he  contracts  un- 
der private  seal,  designating  himself  as  one  of  the  parties,  yet  if 
the  deed  appears  on  its  face  to  be  made  on  behalf  of  the  State, 
the  same  presumption  applies.2  In  an  action  against  a  public 
officer  on  a  contract  apparently  made  by  him  as  snch,  it  is  not 
necessary  to  allege  that  he  had  authority  to  make  it,  for  his  mak- 
ing it  is  an  admission.8  But  if  the  statute  requires  his  contracts 
to  be  in  writing,  and  makes  it  unlawful  to  contract  otherwise,  the 
other  party  cannot  recover  without  proof  of  such  a  contract,  or  at 
least  without  proving  part  performance  and  a  Quantum  meruit.* 
The  government  is  not  bound  by  the  act  or  declaration  of  its 
officer  or  agent,  unless  it  manifestly  appear  that  he  acted  within  the 
scope  of  his  authority,  or  was  employed,  in  his  capacity  as  public 
agent,  to  do  the  act  or  make  the  declaration  for  it.5 

To  charge  him  personally  there  should  be  satisfactory  evi- 
dence of  an  absolute  engagement  to  be  personally  liable.6  Even 
if  his  authority  proves  void,  yet  if  he  acted  in  good  faith,  and 
within  his  instructions,  he  is  not  necessarily  personally  bound.7 
When  it  is  sought  to  charge  him  individually  on  his  contract,  his 
communications  to  the  superior  branches  of  his  government,  and 
their  directions  to  him,  are  competent  in  his  favor  for  the  pur- 
pose of  showing  that  he  acted  as  such.8  He  may  recover  on  an 
apparently  personal  contract,  though  made  with  his  official  addi- 
tion,— such  as  a  bank  deposit,  in  his  own  name,  with  the  addition 
of  his  title, — unless  the  defendants  show  that  they  are  liable  to 
the  government.9 

4.  Acts  by  part  of  board  or  lody.~\ — In  cases  where,  by  law,10 
a  majority  of  a  board  or  body  n  may  act,  provided  all  the  members 
who  are  living  and  qualified,12  are  present  and  deliberate,  or  were 
duly  notified,  the  act  of  a  majority  of  the  officers  is  presumed  to 
have  been  upon  a  meeting  and  consultation  of  all.13  But  the 
presumption  may  be  rebutted.14 

I  Nichols  v.  Moody,  22  Barb.  611  ;  Holmes  v.  Brown,  13  Id.  699. 

*  Hodgson  v.  Dexter,  1  Cranch,  345;  Streets  v.  Selden,  2  Wall.  187. 
8  Shelbyville  v.  Shelby ville,  1  Mete.  (Ky.)54,  57. 

4  Clark  v.  United  States,  95  U.  S.  (5  Otto),  539. 

5  Whiteside  v.  United  States,  93  U.  S.  (1   Otto),  247;  and  see  Noble  v.  United 
States,  1 1  Ct.  of  Cl.  608.     Compare  4  Abb.  New  Cas.  450. 

6  Parka  v.  Ross  (above),  and  see  7  Opin.  of  Atty.-Gen.  88.     Compare  Paulding  v. 
Cooper,  10  Hun,  20. 

7  Hall  v.  Lauderdale,  46  N.  Y.  70. 

8  Bingham  v.  Cabbot,  3  Dall.  19,  40. 

*  Swartwout  v.  Mechanics'  Hank  of  N.  Y.  5  Den.  556. 

10  2  N.  Y.  R.  S.  556,  §  27;  Green   v.  Miller,  6  Johns.  39.     Compare  Schuyler  Y. 
Marsh,  87  Barb.  350. 

II  Where  the  statute  number  was  variable,  the  court  presnmed  no  more  officers 
than  the  lowest  number,  in  order  to  support  the  act  of  the  majority  of  that  number. 
Jay  v.  Carthage,  48  Me.  8:>3. 

18  People  ex  rcl.  Kingsland  v.  Palmer,  62  N.  Y.  83 ;  People  ex  rel.  Kingsland  T. 
Bradley,  6 1  Barb.  228. 
•     13  Doughty  v.  Hope,  3  Den.  249,  694  ;   1  N.  Y.  79. 

14  Doughty  v.  Hope  (above). 


196  ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 

5.  Demand  and  Notice."] — A  demand  must  be  made  in  a  rea- 
sonable and  proper  manner ;  and  if  accompanied  by  gross  rude- 
ness and  insult,  is  not  a  legal  demand ;  but  such  misconduct  does 
not  justify  the  refusal  of  a  subsequent  proper  demand.1    Proof 
of  the  mailing  of  a  letter  to  a  public  officer  is  not  alone  sufficient 
evidence  of  hotice  of  its  contents.3    Though,  together  with  slight 
evidence  of  actual  receipt,  it  may  be  sufficient. 

6.  Former  Judgments.'] — A  former  judgment  does  not  neces- 
sarily bind  the  officer  in  a  new  action,  unless  he  appeared  in  the 
same  capacity  in  both.8    Where  an  officer  sues  in  his  representa- 
tive capacity,  the  estoppel  created  by  the  judgment  is  available  in 
favor  of  those  whom  ne  represented,  and  the  judgment  is  there- 
fore conclusive  against  him  when  they  put  it  in  evidence  in  their 
action  against  him.4 

II.  ACTIONS  BY  OmcEES. 

7.  Pleading  by  officer  suing  as  suchJ] — In  an  action  by  a  pub- 
lic officer  in  his  official  capacity,  if  he  is  named  personally,  the 
pleading  must  indicate  that  he  sues  officially.     A  mere  addition 
of  his  title,  without  anything  to  indicate  that  he  sues  as  such 
officer,  is  not  enough.5    But  if  it  appears  from  the  title  or  the 
body  of  the  complaint  that  he  complains  as  officer,  a  cause  of 
action  accruing  to  him  in  his  official  capacity,  may  be  proved,6 
even  though  it  arises  under  a  statute  authorizing  him  to  sue  on 
behalf  of  another  person  or  bodv,  and  there  is  not  express  allega- 
tion that  he  sues  for  their  benefit.7    Unless  the  regular  legal  title 
is  directly  involved  in  the  action,  he  need  not  aver  the  mode  of 
acquiring  the  office,  but  may  prove  his  official  character  under  a 
general  allegation  that  he  is,  and  was  at  the  times  in  question, 
such  officer. 

8.  Proof  of  title.9] — An  officer  suing  for  moneys  or  property 
as  to  which  his  only  title  is  by  virtue  01  his  office, — as  where  he 
sues  for  public  funds  which  he  is  to  administer, — must  show  a 
legal  title  to  the  office.10    It  is  not  enough  that  he  is  an  officer  de 
facto.    According  to  the  English  doctrine,  however,  evidence 
that  he  was  acting  in  the  office  is  competent,  and  sufficient,  at 


1  Boyden  v.  Burlce,  14  How.  U.  S.  575,  683. 

s  Huntley  v.  Whittier,  105  Mass.  391,  s.  c.  7  Am.  R.  636. 

8  See  Rathbone  v.  Hooney,  58  N.  Y.  463. 

4  People  ex  rel.  Knapp  v.  Reeder,  25  N.  Y.  302,  804. 

8  Thus,  "John  Doe,  supervisor,"  <fec.  in  the  title,  is  not  alone  enough.  Gould  v. 
Glass,  19  Barb.  179.  But  commencing  the  complaint  as  "the  complaint  of  John 
Doe,  as  supervisor,"  <fcc.  is ;  Smith  v.  Levinus,  8  N.  Y.  472 ;  so  is  "  John  Doe,  super- 
visor, <fec.  complains."  Fowler  v.  Westervelt,  17  Abb.  Pr.  69,  s.  o.  40  Barb.  374. 

6  See  Stilwell  v.  Carpenter,  2  Abb.  New  Cas.  240,  and  note. 

7  Griggs  v.  Griggs,  66  Barb.  291,  300,  affi'd  in  56  N.  Y.  504. 

8  Kelly  v.  Breusing,  83  Barb.  123,  affi'g  32  Id.  601. 
*  See  paragraphs  1  and  13. 

10  People  ex  rcl.  Henry  v.  Nostrand,  46  N.  Y.  375,  382. 


ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS.  197 

least,  to  go  to  the  jury  (especially  where  he  'sues  a  private  per- 
son), from  which  the  jury  may  infer  regular  legal  title,  even 
although  the  title  is  put  in  issue.1  But  evidence  that  he  has  not 
taken  the  oath  or  given  the  bond  required  by  law,  is  competent 
against  him.2 

9.  Process  as  supporting  a  cause  of  action.] — An  officer  suing 
by  virtue  of  process  issued  to  him,  and  possession  under  it,  suf- 
ficiently proves  his  authority  under  it  by  producing  the  process, 
if  fair  on  its  face,3  and  need  not,  in  the  first  instance,  prove  the 
judgment  or  order  on  which  it  issued.4    But  the  defendant  may 
impeach  the  process  for  want  of  jurisdiction,  and  if  he  does  this 
by  evidence,  the  officer  must  establish  the  jurisdiction  or  his  ac- 
tion fails. 

10.  Return,  adduced  in  his  own  action.'] — In  an  action  by  a 
public  officer,  founded  on  his  own  official  acts, — as  where  a  sheriff 
sues  to  recover  goods  levied  on,5  or  to  recover  the  purchase  monev 
of  land  sold  by  him, — his  own  return  is  competent  prima  facie 
evidence  in  his  favor.6     It  is  a  general  principle  that  the  certifi- 
cate of  an  officer,  when,  by  law,  evidence  for  others,  is  competent 
testimony  for  himself,  provided  he  was  competent,  at  the  time  of 
making  it,  to  act  officially  in  the  matter.     Subsequently  acquired 
interest  does  not  affect  the  competency,  of  the  certificate.7 

11.  Action  for  emoluments.'] — In  his   action    for    salary  or 
other  emoluments  belonging  to  himself,  the  officer  sues  in  his 
individual  capacity,  and  his  regular  legal  title  at  the  time  for 
which  he  claims  compensation,  is  in  issue  and  must  be  directly 
proved,8  except  where  he  sues  private  persons  for  services  which 
would  be  valid  if  rendered  by  an  officer  de  facto,  and  which  they 
have  accepted.9      Evidence  of  general  usage  may  be  competent  to 
show  the  measure  though  not  the  right  to  compensation.10     The 
official  audit  or  taxation  of  his  fees  by  the  proper  officers,  such 
as  a  board  of  supervisors,  having  jurisdiction,  is  conclusive.11 


1  McMahon  v.  Lennard,  6  Ho.  of  L.  Ca*.  970  ;  Doxter  v.  Hayes,  11  Irish  L.  N.  S. 
106,  affi'd  in  13  Id.  22 ;  Radford  v.  Mclntosh,  3  T.  R.  6H2  ;  Doe  d.  Bowley  y.  Barnes, 
8  Q.  B.  1037.     Having  dealt  with  the  officer  as  such,  deemed  an  admission  of  his 
title.     2  Whart.  Ev.  §  1153. 

2  People  v.  Hopson,  1  Den.  579.     Per  BBOXSON,  J. 
2  See  paragraph  19,  and  note. 

4  Earl  v.  Camp,  16  Wend.  562;  Cleirwater  v.  Brill,  63  N.  Y.  627;  Kelly  v.  Breu- 
eing,  83  Barb.  123,  affi'g  32  Id.  601 ;  Dunlap  v.  Hunting,  2  Den.  643. 

6  Cornell  v.  Cook,  Y  Cow.  310.    Co>,tra,  8  Pick.  397. 
8  Hyskill  v.  Givin,  7  Serg.  <fc  Rawle,  369. 

7  ili  Knight  v.  Lewis,  5  Barb.  681.     A  return,  contrary  to  the  fact,,  if  it  has  been 
canceled  by  leave  of  the  court,  does  uot  estop  him.     Barker  v.  Binniuger,   14  N.  Y. 
270. 

8  People  ex  rcl.  Morton  v.  Tieman,  8  Abb.  Pr.  859  (ALLEN,  J.);    Dolan  T.  Mayor, 
<fcc.  of  N.  Y.  63  N.  Y.  278. 

•  See  Sawyer  v.  Stcele,  3  TVash.  C.  Ct  464;   Hunter  T.  Chandler,  45  Mo.  452. 

10  United  States  v.  Fillebrown,  7  Pet.  28. 

11  Supervisors  of  Onouda^a  v.  Briggs,  2  Den.  26,  40;  but  compare  U.  S.  v.  Smith, 
1  Wood.  &  M.  184. 


198  ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 

in.  ACTIONS  AGAINST  OFFICERS. 

12.  Plaintiff's  pleading.] — In  an  action  against  a  public  offi- 
cer, for  a  wrong  not  involving  the  violation  of  any  official  duty 
lie  or  his  predecessor  owed  to  plaintiff,  the  cause  of  action  may 
be  proved,  although  the  complaint  does  not  allege  that  he  was 
such  officer,1  but  where  the  breach  of  such  a  duty  is  involved, 
the  complaint  should  designate  him  as  such  officer,  and  aver  him 
to  be  such.8    But  an   allegation  that    he  collected    plaintiff's 
money  on  process,  need  not  add  that  he  received  it  as  such  offi- 
cer.8   Ana  even  where  defendant  is  not  sued  in  his  official 
capacity,  evidence  of   moneys  received  in  that  capacity  is   ad- 
missible.4 

13.  Plaintiff's  proof  of  the  Official  character  of  Defendant 
or  his  Deputy. .] — In  a  private  action  against  an  alleged  officer, 
parol  evidence  of  his  official  character  is  admissible,  notwith- 
standing there  is  a  record.5    And  evidence  that  he  assumed 
to  act  as  such  officer  in  the  matter  in  question,  is  conclusive 
against  him  as  an  estoppel.6    But  to  charge  him  with  responsi- 
bility for  a  deputy  or  other  subordinate,  the  appointment  must 
be  shown,  either  by  producing  the  original  on  file,'  or  by  evidence 
that  the  latter  acted  as  such  with  liis  knowledge  and  assent.8 
Neither  the  appointment  of  the  deputy,  nor  his  relation  to  his 
principal,  can  be  proved  merely  by  his  acts,9  or  his  testimony  that 
he  acted  as  such.10    Evidence  that  the  subordinate  appointment 
is  irregular,  does  not  render  the  principal  or  appointing  officer 
liable  for  the  acts  of  the  subordinate  as  if  they  were  done  with- 
out authority,  provided  the  subordinate  was  an  officer  de facto.11 

14.  Cause  of  action."] — The  burden  of  proving  affirmatively 
a  breach  of  official  duty  complained  of,  is  upon  the  plaintiff,  who 
must  show  every  fact  necessary  to  constitute  such  breach,  and 
without  it  damages  will  not  be  presumed.12    To  charge  one  officer, 
the  court  will  not,  without  evidence,  presume  that  the  precedent 
duty  of  another  officer  was  performed.13    An  officer,  especially 


1  Curtis  v.  Fay,  87  Barb.  64;  Dennis  v.  Snell,  54  Id.  411. 

*  Formerly  it  was  held  that  if  title  was  averred  and  put  in  issue,  the  pleader 
might  be  held  to  prove  legal  title.  1  Greenl.  Ev.  115,  §  92.  The  better  opinion 
under  the  new  procedure  is,  that  if  the  mode  of  acquiring  title  is  not  in  issue,  proof 
that  he  was  an  officer  de  facto  is  admissible  under  allegation  of  official  character. 

8  Armstrong  v.  Garrow,  6  Cow.  465. 

4  Walton  v.  U.  S.  9  Wheat.  651. 

5  Dean  v.  Gridley,  10  Wend.  254. 

6  1  Greenl.  Ev.  13th  ed.  245,  §  207;  Lister  v.  Priestly,  Whightw.  67;  Eosc.  K  P. 
70. 

7  Curtis  v.  Fay,  37  Barb.  64.     A  certified  copy,  unless  made  evidence  by  statute, 
is  inadmissible  for  this  purpose,  without  excusing  the  absence  of  the  original.    Ib. 

8  Boardman  v.  Halliday,  10  Paige,  223,  230  ;  Sprague  v.  Brown,  40  Wis.  612. 

»  Meyer  v.  Bishop,  27  N.  J.  Eq.  141.     Contra,  Briggs  v.  Taylor,  85  Vt.  57,  67. 

10  Curtis  v.  Fay,  87  Barb.  67. 

11  Hamlin  v.  Uingman,  5  Lans.  61.     Contra,  Cummings  v.  Clark,  15  Vt.  653. 
1S  Craig  v.  Adair,  22  Ga.  373. 

13  Id.    The  presumption  in  favor  of  official  acts  is  not  to  be  pressed  too  far. 


ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS.  199 

when  acting  under  the  sanction  of  an  oath,  or  in  whom  govern- 
ment reposes  trust,  is  presumed  to  have  done  his  duty  until  the 
contrary  be  proved  ;  and  this  principle  applies  in  favor  of  the 
officer  as  well  as  in  favor  of  strangers.1  And  when  an  officer  is 
charged  with  fraud  or  conspiracy  in  the  discharge  of  his  duties, 
the  presumption  of  innocence  is  strong  in  his  favor,  but  it  may 
be  overcome  by  evidence  of  other  similar  delinquencies.2  To 
charge  an  officer  with  neglect  to  execute  process,  the  plaintiff 
cannot  rely  on  the  rule  that  process  valid  on  its  face,  <fec.,  is  a 
protection.  The  officer  is  not  bound  to  act,  if  the  process  or 
judgment  is  void  for  want  of  jurisdiction.3  The  admissions  and 
declarations  of  a  subordinate,  who  was  not  the  general  agent  and 
representative  of  the  defendant,  are  not  competent  against  the 
defendant,  unless  within  his  authority,4  or  part  of  the  res  gestce. 
It  is  not  enough  that  they  were  made  before  his  term  expired,5  nor 
that  they  were  against  interest,  and  he  has  subsequently  died.6 

The  acts  of  a  public  officer,  on  public  matters  within  his 
jurisdiction,  and  where  he  has  a  discretion,  are  presumed  legal, 
till  shown  to  have  been  unjustifiable.  This  presumption  avails 
in  his  own  favor  when  he  is  sued.7  To  sustain  a  private  action 
against  him,  it  must  be  shown  that  he  exercised  the  power  con- 
fided to  him  in  a  case  without  his  jurisdiction,  or  in  a  manner 
not  confided  to  him,  as  with  malice,  cruelty,  or  willful  oppres- 
sion.8 In  case  of  a  judicial  officer  malice  is  not  enough.9 

15.  Return,  as  evidence  Against  the  officer.] — As  against  the 
officer,  and  those  claiming  in  privity  with  him,  his  return10 
is  conclusive11  as  to  his  acts12  stated  in  it,  within  the  scope  of 
his  duty,  as  evidence  in  favor  of  parties  who  claim  an  interest  or 


"When  invoked  in  lieu  of  direct  evidence,  it  cannot  serve  as  a  substitute  for  all  other 
evidence  of  an  independent  and  material  fact.  It  aids  general  evidence  by  dispens- 
ing with  proof  of  material  circumstances  and  incidents.  United  States  v.  Ross,  92 
U.  S.  (Otto),  281,  285. 

1  Ilickman  v.  Boffman,  Hard.  (Ky.)  348.  Thus,  the  fact  that  a  sheriff  made  a 
levy,  is  presumed  in  support  of  his  justification  under  process.  Hartwell  v.  Root,  19 
Johns.  345. 

8  Bottomley  v.  U.  S.  1  Story  C.  Ct.  135.  As  to  evidence  of  motives,  see  Gregory 
v.  Brooks,  37  Conn.  365  ;  Moran  v.  McClearns,  4  Lans.  288  ;  Wilkea  v.  Dinsman,  7 
How.  U.  S.  89. 

8  Cornell  v.  Barnes,  7  Hill,  35 ;  Housh  v.  People,  75  111.  487. 

4  Green  v.  Town  of  Woodbury,  48  Vt.  5. 

5  Burgess  v.  Wareham,  7  Gray  (Mass.)  845. 

6  Lawrence  v.  Kimball,  1  Mete.  (Mass.)  524. 

I  It  rests  not  rat-rely  on  the  presumption  of  innocence,  but  also  on  grounds  of 
public  policy.     Wilkea  v.  Dinsman,  7  How.  U.  S.  130. 

9  Lange  v.  Benedict,  8  Hun,  866,  affi'd  in  73  N.  T.  12. 

10  And  the  principle  extends  to  his  indorsement  upon  an  execution,  of  the  time  of 
its  receipt.  Williams  v.  Lowndes,  1  Hall,  679.  So  also  of  a  deputy's  return,  offered 
in  evidence  against  the  sheriff.  Sheldon  v.  Payne,  7  N.  Y.  453.  That  the  power  to 
return  is  a  common-law  power,  see  McCullough  v.  Commonw.  67  Penn.  St.  30. 

II  Sheldon  v.  Payne  (above). 

18  See  bplahn  v.  Gillespie,  48  Ind.  897. 


200  ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 

right  nnder  the  return ; l  and  when  thus  conclusive,  not  even 
the  officer,2  or  his  deputy,8  can  testify  in  contradiction  to  it. 
But  returning  that  the  goods  were  taken  as  property  of  A.  does 
not  estop  him  from  showing  that  they  were  not  in  fact  A.'s 
property,4  or  that  plaintiff  is  not  entitled  to  the  proceeds.5  And 
ne  may  prove  other  facts  relevant  to  his  defense,  which  were  not 
included  in  nor  contradicted  by  his  return.6 

The  plaintiff,  although  suing  on  a  return,  may  contradict  it, 
for  instance,  by  denying  that  the  acts  were  done  by  his  special 
direction.7 

When  the  return  is  adduced  in  evidence  by  one  not  deriving 
any  right  or  interest  under  it, — as,  for  instance,  when  one  sues 
for  an  alleged  wrongful  levy, — it  is  a  mere  admission,  and  only 
prima  facie  evidence  against  the  officer.8  When  adduced  in 
evidence  by  the  officer  himself  in  his  own  defense,  whether  in  a 
direct  action  for  a  false  return,  or  in  an  action  for  breach  of  duty, 
it  is  not  conclusive  in  his  favor.9  And  it  is  evidence  in  his  favor 
only  of  such  official  acts  as  he  is  by  it  required  to  perform,  and 
not  of  matters  stated  as  an  excuse  for  their  non-performance.10 

The  return  which  is  conclusive  against  the  officer  is  not  simply 
his  indorsement  upon  the  process,  but  it  is  the  actual  placing  of 
it  in  the  office  from  which  it  is  issued.  Until  then  he  may  change 
the  indorsement,  and  afterwards  only  by  permission  of  the  court.11 
A  return  or  indorsement  made  by  him  is,  though  not  filed,  com- 
petent against  him  as  an  admission,  and,  if  made  in  pursuance  of 
his  duty,  is  competent  in  his  favor, w  even  though  made  after  suit 
is  brought.13 

16.  Public  action  for  refusing  to  serveJ] — In  a  prosecution  on 
behalf  of  the  public,  for  refusing  to  accept  office,  or  to  continue 
its  exercise,  the  best  evidence  of  appointment  must  be  pro- 


I  As,  for  instance,  the  plaintiff,  in  an  action  against  a  sheriff  for  a  false  return  ;  or 
an  action  for  not  paying  over.     Sheldon  v.  Payne  (above) ;  Armstrong  v.  Garrow,  6 
Cow.  465. 

8  Freeman  on  Ex.  §  364,  n.  3. 

8  Sheldon  v.  Payne  (above). 

4  Hopkius  v.  Chandler,  17  N.  J.  L.  (2  Harr.)  299. 

6  Id. 

6  Evans  v.  Davis,  3  B.  Monr.  (Ky.)  346  ;  Freem.  on  J.  §  366. 

7  Townsend  v.  Olin,  5  Wend.  2()7. 

8  Baker  v.  McDuffie,  23  Wend.  291  ( NELSON,  Ch.J.);  Boynton  v.  Willard,  10  Pick. 
166.     This  distinction  rests  on  sound  principles  and  the  highest  N.  Y.  authority.     It 
is  not  noticed  by  Wharton,  who  gives  conflicting  rules  (2  Whart.  Ev.  §§  833a,  837. 
1155) ;  nor  by  Freeman  on  Ex.  §  366,  who  regards  the  officer  as  always  concluded. 
See  al->o  Bullis  v.  Montgomery,  50  N.  Y.  352,  rev'g  in  part,  3  Lans.  255. 

9  Whitehead  v.  Keyes,  3'Allen,  495,  s.c.  1  Am.  L.  Reg.  N.  S.  471,  and  note  by 
Redfield. 

10  Browning  v.  Hanford,  5  Den.  586,  rev'g  7  Hill,  120 ;  and  see  Splahn  v.  Gillespie, 
48  Ind.  397,  affi'g  1  Wils.  228.      Contra,  Freeman  on  Ex.  §  366. 

II  Nelson  v.  Cook,  19  111.  440,455;  and  see  Barker  v.  Binninger,  14  N.  Y.  270. 
But  once  made,  it  may  relate  back  to  tho  return  day.     Armstrong  v.  Garrow,  6  Cow. 
465. 

12  Glover  v.  Whittenhall,  2  Den.  633. 

13  Bechstein  v.  Sammis,  10  Hun,  585. 


ACTION'S  BY  AND  AGAINST  PUBLIC  OFFICERS.  201 

duced ; l  and  it  is  not  enough  to  prove  that  defendant  was  an 
officer  de  facto? 

17.  Pleading  by  officer  defendant^ — By  the  New  York  stat- 
ute,8 in  every  action  against  a  public  officer  for  his  official  acts, 
though  not  in  actions  for  nonfeasance,4  the  defendant  may  give 
special  matter  in  evidence,  under  the  general  issue,  without  no- 
tice.    When  he  pleads  his  justification,  however,  he  must  do  so 
strictly.5 

18.  Defendant's  proof  of  official  character  in  justification. — 
If  defendant,  justifying  as  an  officer,  produces  the  record  of  his 
appointment  by  an  authority  having  apparent  jurisdiction,  this 
is  conclusive  ; 6  and  if  there  be  no  writing  and  none  required  by 
law,  parol  evidence  is   competent   to  prove  the  appointment.7 
But  he  need  not  prove  that  the  appointing  power  was  de  jure.9 
Whether  evidence  that  he  himself  was  an  officer  de  facto  is 
enough,  is  disputed.9 

19.  Process  as  a  protection  to  defendant.'] — Where  the  per- 
son against  whom,  or  whose  property,  process,10  or  a  warrant,"  or 
order,12  has  been  issued  by  any  tribunal  or  official  body  having 
jurisdiction  of  the  subject,  sues  the  officer  for  executing  it,18  the 
process,  if  fair  on  its  face,14  is  a  protection,  and  it  is  not  necessary 


1  Per  SAVAGE,  Ch.  J.,  Dean  v.  Gridley,  10  Wend.  254. 

8  Bentley  v.  Phelps,  27  Barb.  624.     s.  P.  Green  v.  Burke,  23  Wend.  490. 

»  2  R.  S.  353,  §  15. 

4  Fairchild  v.  Case,  24  Wend.  380 ;  Persons  v.  Parker,  3  Barb.  249. 

8  Lawton  v.  Erwin,  9  Wend.  233;  Dennis  v.  Snell,  54  Barb.  441.  So  far  as  the 
latter  case  holds  that  new  matter  proved,  though  not  pleaded,  to  avoid  new  matter  in 
the  answer,  cannot  be  met  by  new  matter  not  iu  the  answer,  it  is  perhaps  of  doubtful 
Bound  ness. 

'  Wood  v.  Peake,  8  Johns.  69 ;  State  ex  rel.  Leonard  v.  Sweet,  27  La.  Ann.  541. 

7  Hoke  v.  Field,  10  Bush  (Ky.)  144. 

8  Stevens  v.  Newcomb,  4  Den.  437. 

•  Three  rules  are  asserted  on  this  point :  1.  That  he  must  aver  and  prove  that  he 
was  legally  an  officer,  duly  elected  or  appointed  and  qualified  to  act  (Conover  v. 
Devlin,  15  How.  Pr.  478,  and  cases  cited).  2.  That  he  must  at  least  show  color  of 
election  or  appointment  from  competent  authority  (State  v.  Carroll,  38  Conn.  449,  s.  o. 
9  Am.  11.  409);  and  that  this  is prima  facie  sufficient  for  the  protection  of  an  officer 
defacto( Willis  v.  Sproule,  13  Kan.  257).  3.  That  he  may  prima  facie  establish  his 
official  character  by  proof  of  general  reputation,  and  that  he  acted  as  such  officer  (!' 
Dill.  M.  C.  295,  note,  and  cases  cited;  Colton  v.  Beardsley,  88  Barb.  29)  in  other 
matters  besides  those  in  question  (Hutchings  v.  Van  Bokkelen,  34  Me.  126). 

w  Savacool  v.  Boughton,  5  Wend.  170,  180;  Parker  v.  Waldrod,  16  Id.  514. 

11  Chjgaray  v.  Jenkins,  B  N.  Y.  376,  880. 

lf  Erskine  v.  Hohnback,  14  Wall.  613.  If  the  proceedings  and  order  of  a  board  of 
public  officers,  such  as  a  board  of  health,  are  relied  on  as  a  justification  in  an  act 
which,  if  without  such  justification,  is  a  serious  wrong,  strict  proof  of  the  proceedings 
may  be  required.  Meeker  v.  Van  Kensselaer,  15  Wend.  397.  Compare  Chap.  Ill, 
paragraphs  66-65. 

12  The  rule  is  the  same  as  against  voluntary  assignees,  who  become  such  after  a 
levy-     Heath  v.  Westervelt,  2  Sandf.  110. 

'4  What  is  requisite  to  make  it  fair  on  its  face  within  the  rule,  see,  as  to  direction, 
Russell  v.  Ilubbard,  6  B;irb.  654;  name  of  party,  Farnham  v.  Hildreth,  32  Id.  277, 
281;  1  Abb.  New  Caa.  309;  alterations,  Wattles  v.  Marsh,  5  Cow.  176;  amendable 


202  ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 

to  give  other  evidence  of  jurisdiction  of  the  person  than  the  pro- 
duction of  the  process  or  order.1  If  process  or  a  warrant  signed 
by  public  officers,  and  produced  as  a  justification,  lack  their  offi- 
cial additions,  parol  evidence  is  competent  to  show  that  they 
actually  held  the  offices  by  virtue  of  which  they  acted.  And 
where  jurisdiction  may  be  impeached,  it  will  usually  be  enough, 
for  the  purpose  of  protecting  the  officer,  to  show  that  the  juris- 
diction al  facts  were  duly  alleged  in  the  application,2  unless  the 
officer  was  the  applicant ; 8  and  that  the  process  was  issued  by  a 
person  de  facto,  and  with  color  of  title,  a  magistrate  such  as  has 
jurisdiction.4  The  process,  even  though  it  may  not  justify  the 
taking,  may  be  admissible  in  mitigation,  to  justify  the  entry  for 
the  purpose  of  taking.5  'Where  the  act  is  sought  to  be  justified 
by  instructions  from  the  head  of  an  executive  department,  the 
court  may  presume  in  the  officer's  favor  that  the  proper  direc- 
tion was  given  by  the  chief  executive.  If  the  officer  is  sued  for 
an  act  of  subordinates,  performance  of  which  the  facts  show 
it  to  have  been  his  duty  to  direct,  the  court  may  presume  in  his 
favor  that  the  necessary  request  was  duly  given/ 

Where  a  third  person  sues  the  officer  for  enforcing  against 
him  process,  or  a  warrant  or  order  against  another,  the  officer 
must  produce  the  judgment,  or  other  foundation  of  the  process.7 
The  process  itself,  and  the  record  of  the  judgment  or  decree,  if 
any,  on  which  it  was  issued,  are  primary  evidence ;  and  unless 
a  foundation  for  secondary  evidence  is  laid,  they  cannot  be  proved 
by  testimony  to  their  contents,8  nor  to  an  admission  of  their  exist- 
ence by  the  adverse  party.9 


defects,  seal,  etc.,  Dominick  v.  Backer,  3  Barb.  17;  completeness,  Prell  v.  McDonald. 
7  Kans.  426;  process  functus  officio,  State  v.  Queen,  66  N.  C.  615. 

1  Unless,  perhaps,  where  he  "was  the  actor  in  promoting  the  illegal  proceedings 
Leachman  v.  Dougherty,  81  111.  324.  As  to  necessity  of  return,  see  2  1'hil.  Ev.  bj 
Edw.  366 ;  Sheldon  v.  Van  Buskirk,  2  N.  Y.  473, 476 ;  but  it  is,  it  seems,  unnecessary 
Id. ;  signature  essential,  Barhydt  v.  Valk,  12  Wend.  143. 

*  Whitney  v.  Shufeldt,  1  Den.  592. 

3  An  officer  justifying  under  a  summary  proceeding  in  his  favor,  taken  by  an  in 
ferior  magistrate  who  was  only  authorized  to  act  on  complaint  of  a  particular  officer, 
must  show  that  he  was  such  officer.     And  plaintiff  may  prove  that  he  was  not 
Walker  v.  Moseley,  6  Den.  102. 

4  Weeks  v.  Ellis,  2  Barb.  320;  Wilcox  v.  Smith,  B  Wend.  283. 

'Parker  v.  Waldrod,  16  Wend.  514;  Paine  v.  Fair,  118  Mass.  74;  Wilcox  v 
Jackson,  13  Pet.  498. 

8  Rankin  v.  Hoyt,  4  How.  U.  S.  327,  335. 

7  Parker  v.  Waldrod,  16  Wend.  614;  Jansen  v.  Acker,  23  Id.  480.     And  if  he 
seizes  under  an  attachment,  he  must  show  the  attachment  regularly  issued.     Noble 
v.  Holmes,  5  Hill,  194. 

8  Stebbins  v.  Cooper,  4  Den  191. 

•  Per  THOMPSON,  J.,  Jenner  v.  Joliffe,  6  Johns.  9. 


CHAPTEE  IX. 

ACTIONS  BY,  AGAINST,  OB  BETWEEN  PARTNERS. 


L  ACTIONS  BY  PARTNERS. 

1.  Allegation  of  partnership. 

2   Proof  of  partnership. 

8,  Parol  evidence  to  vary  the  contract 

sued  on. 
4,  Firm  books  as  evidence  in  favor  of 

the  firm. 
6.  Declarations. 

6.  Defendant's  evidence. 

7.  Matter  in  abatement. 

II.    AtOTONS  AGAINST  PARTNERS. 

8.  Allegation  of  partnership. 

9.  Proof  of  partnership. 

10.  Best  and  secondary  evidence. 

1 1.  Indirect  evidence  of  partnership. 

12.  Holding  out  to  the  public. 

13.  Representations  to  particular  cred- 

itor. 

14.  Admissions    and    declarations    to 

prove  partnership. 

15.  Hearsay. 

16.  Ownership. 

17.  Dormant  and  secret  partners. 

18.  Community  of  profits ;  the  common 

law  rule. 

19.  —  the  English  rule. 

20.  Evidence,  in  respect  to  date. 

21.  Assumption  of  debts  by  incoming 

partner. 

22.  Variance  as  to  the  number  of  part- 

ners. 

23.  Presumption  of  partner's  authority. 

24.  Evidence  as  to  the  scope  of  the  busi- 

ness, <fec. 

25.  Evidence  of  express  authority. 

26.  Question  to  whom  credit  was  given. 

27.  Parol  evidence  to  charge  firm  on 

individual  signature. 

28.  —  on  deed. 

29.  Evidence  of  ratification. 


II.  ACTIONS  AGAINST  PARTNERS — continued. 

80.  Evidence  of  deceit  or  fraud. 

81.  Evidence  of  other  torts. 

32.  Admissions  and  declarations  of  a 

partner. 

33.  Acts,  admissions,  <fec.,  after  disso- 

lution. 

34.  Notice. 

85.  Defendant's   evidence  to  disprove 

partnership. 

36.  Proof  of  a  limited  partnership. 
87.  Matter  in  abatement. 

38.  Evidence  of  known  want  of  author- 

ity. 

39.  Transactions  in  the  interest  of  one 

partner. 

40.  Burden  of  proving  dissolution  and 

notice. 

41.  Mode  of  proving  dissolution. 

42.  —  notice. 

III.  RULES   PECULIAR   TO   SURVIVING   PART- 

NERS. 

43.  Actions  by  survivor. 

44.  Actions  against  survivor. 

45.  Actions  against  representatives  of 

deceased  partner. 

rV.  ACTIONS  BETWEEN  PARTNERS. 

46.  Allegation  and  burden  of  proof  of 

partnership. 

47.  Proof  of  partnership. 

48.  Order  of  proof. 

49.  Evidence  of  firm  and  individual 

transactions. 

50.  Title  to  real  property. 

51.  Evidence  to  charge  member  with 

assets. 

52.  Evidence  to  credit  member  with 

payment  of  share. 

53.  Partnership  books,  <fec.,  as  evidence. 
64.  Evidence  of  voluntary  settlement. 


I.  ACTIONS  BY  PARTNERS. 

1.  Allegation  of  partnership.] — An  allegation  of  partnership 
between  plaintiffs  is  unnecessary  in  their  complaint,  unless  their 
right  of  action  depends  on  the  partnership.  When  a  joint  owner- 
ship or  joint  contract  will  enable  them  to  recover,  it  is  no  objec- 

[203] 


204:  ACTIONS  BY  PARTNERS. 

tion  to  the  complaint  that  the  partnership  is  not  pleaded.1  If 
plaintiffs  allege  their  partnership,  it  is  well  to  be  prepared  to  prove 
it,3  unless  admitted  ;  and  a  general  denial  is  not  an  admission,  but 
puts  the  allegation  in  issue.* 

2.  Proof  of  partnership^ — Partners  in  a  general  partnership, 
suing  as  such,  may  prove  their  partnership  by  the  testimony  of  a 
partner,4  or  by  that  of  a  witness  who  has  done  business  with 
them,5  or  for  them, — as  a  clerk,  for  instance  ;6 — and  a  witness  who 
knows  that  they  have  done  business  as  such,  at  the  time  in  ques- 
tion, or  other  times  reasonably  proximate,7  may  testify  directly 
to  the  fact  that  they  were  partners,  subject,  of  course,  to  cross- 
examination  as  to  the  details.8    If  he  cannot  testify  that  they 
were  partners,  he  should  not  be  allowed  to  state  his  opinion. 
The  facts  being  brought  out,  the  question  of  partnership  or  no 
partnership  between  plaintiffs  is  one  of  law  for  the  court."    Evi- 
dence that  the  plaintiffs  represented  themselves  to  be  partners, — 
as,  for  instance,  where  one  introduced  the  other  to  witness  as  his 
partner, — is  competent,  for  partnership  may  be  proved,  even  in 
lavor  of  the  partners,  by  the  acts  and  declarations  of  all,10  but  the 
declarations  of  one  partner,  or  the  testimony  of  a  witness  whose 
only  information  is  by  such  declaration   or  hearsay,  is  not  alone 
enough.     Plaintiffs  have  the  means  of  proving  their  own  part- 
nership ;  and,  where  the  fact  is  material,  may  be  held  to  strict 
Eroof.       If  a  written  contract  sued  on  runs  to  the  plaintiffs  in  a 
rm  style,  its  production  is  sufficient  prima  facie  evidence  of  the 
existence  of  a  partnership,  as  against  defendants  who  have  signed 
or  indorsed  it,155  but  unless  it  is  admitted  that  the  plaintiffs  com- 
posed the  firm,  they  must  give  some  evidence  of  the  fact  beside 
that  afforded  by  the  correspondence  of  surnames  and  their  pro- 
duction of  the  instrument  sued  on.18    Articles  of  copartnership, 
even  if  shown  to  exist,  need  not  be  produced,  unless  some  ques- 
tion is  made  as  to  their  contents  or  scope. 

3.  Parol  evidence  to  vary  the  contract  sued  on.~\ — Where  part- 


1  Loper  v.  Welch,  3  Duer,  644. 

8  Cooper  v.  Coates,  21  Wall.  105;  Millerd  v.  Thorn,  56  N.  Y.  404. 

8  Fetz  v.  Clark,  7  Minn.  217.  The  fact  of  partnership,  though  it  may  not  be  ma- 
terial in  the  sense  of  being  essential  to  a  recovery  (Oecbs  v.  Cook,  3  Duer,  161),  may 
be  material  to  a  set  off,  <fec.,  and  as  laying  a  foundation  for  admitting  evidence  of  the 
acts  ami  declarations  of  one  plaintiff  for  or  against  both. 

4  See  Gates  v.  Manny,  14  Minn.  21. 

8  Gilbert  v.  Whidden,  20  Me.  368. 

8  McGregor  v.  Cleveland,  6  Wend.  475. 

7  See  Gilbert  v.  Whidden  (nbove). 

8  Grew  v.  Walker,  17  Ala.  824. 

9  Id.     As  to  proving  partnership  under  foreign  law,  see  Barrows  v.  Downs,  9  R.  L 
446,  s.  c.  11  Am.  R.  283  ;  and  pp.  22,  23.  and  86  of  this  vol. 

10  Gilbert  v.  Whidden,  20  Me.  368.     Contra,  Lockridge  v.  Wilson,  7  Mo.  560. 

11  McGregor  v.  Cleveland  (above). 

12  Griener  v.  Ulerey,  20  Iowa,  266. 

13  McGregor  v.  Cleveland,  6  Wend.  475  ;  Barnes  v.  Elmbinger,  1  Wise.  56. 


ACTIONS  BY  PARTNERS.  205 

ners  sue  on  a  simple  contract  made  with  a  member  of  the  firm  in 
his  own  name,  they  may  show  by  parol  that  the  contract  was 
made  by  him  for  the  firm.1  The  fact  that  it  was  made  in  his 
name  throws  on  them  the  burden  of  doing  so.  Evidence  that 
the  consideration  proceeded  from  the  firm  assets,  is  not  alone 
enough.3  A  sealed  instrument  cannot  be  thus  varied  by  parol ; 
even  a  partner  who  became  such  subsequent  to  the  contract,  can- 
not sue  thereon,3  unless  upon  evidence  that  he  has  been  recog- 
nized as  a  joint  contractor  by  the. other  party.4  But  if  the  sealed 
contract  is  made  in  the  name  of  the  firm  or  all  the  partners,  evi- 
dence that  the  one  who  signed  and  sealed  had  authority  from  the 
others  to  do  so,  need  not  be  proved  for  the  purpose  of  sustaining 
their  action.5 

4.  firm  looks  as  evidence  in  favor  of  the  firm.'] — Where  the 
books  of  a  party  are  competent  in  his  own  favor,8  the  books  of  a 
firm  are  equally  so  in  their  favor,  upon  the  same  conditions, 
but  in  those  States  where  the  suppletory  oath  of  the  party  is 
requisite,  the  partner  who  made  the  entries  must  be  called  for 
the  purpose,  unless  he  is  dead  or  has  gone  beyond  jurisdiction.7 

5.  Declarations. .] — Evidence  of  the  declarations  of  the  part- 
ners is  not  competent  in  favor  of  the  firm,  except  to  establish  the 
fact  of  partnership,  or  under  the  rule  of  res  gestce,  or  on  other 
grounds  of  competency  common   to  the  declarations  of   other 
classes  of  parties.8 

6.  Defendant's  evidence.'] — Plaintiffs'    allegation  that   they 
were  partners  is  conclusive  on  them  so  far  as  to  render  evidence 
of  the  admissions  and  declarations  of  either  of  them,  made 
while  he   sustained  that   relation,9  competent   against  all,  and 
under  this  rule,  the  declaration  of  one,  that  the  cause  of  action 
was  exclusively  his  own,  is  competent  against  the  others.10    An 
entry  in  partnership  books  is  not,  even  against  a  member,  conclu- 
sive evidence  that  the  transaction  was  a  firm  transaction.11 

7.  Matter  in  abatement.'] — An  allegation  of  the  non-joinder 
of  copartners  as  plaintiffs  is  sustained  by  proof  that  some  of  those 

1  Cooke  v.  Seely,  2  Exch.  745;  8.  P.  Coleman  v.  First  Nat.  Bk.  53  N.  Y.  388,  391. 
1  See  Townsend  v.  Hubbard,  4  Hill,  351 ;  Briggs  v.  Partridge,  64  N.  Y.  362. 
8  Duff  v.  Gardner,  7  Lans.  165. 
4  Compare  Cramer  v.  Metz,  67  N.  Y.  659. 
8  Gates  v.  Graham,  12  Wend.  68. 

6  Vosburgh  v.  Thayer,  12  Johns,  461 ;  Tomlinson  v.  Borst,  30  Barb.  42 ;  Stroud 
V.  Tilton,  4  Abb.  Ct.  App.  Dec.  324  ;  2  Phil.  Ev.  370,  note  108. 

I  New  Haven  Co.  v.  Goodwin,  42  Conn.  230. 

8  Crounse  v.  Fitch,  1  Abb.  Ct.  App.  Dec.  475. 

*  A  statement  by  one,  who  became  partner  after  the  cause  of  action  arose,  is  not 
evidence  against  hia  copartner  who  sues  on  it.  Tunley  v.  Evans,  2  D.  <fe  L.  747  ; 
Rose.  N.  P.  75. 

10  Lucas  v.  De  la  Cour,  1  M.  «fe  S.  249  ;  especially  if  part  of  the  res  gestce.  Atlierton 
v.  Tilton,  44  N.  H.  452,  458.  As  to  the  effect  of  such  evidence,  see  p.  186  of  this 
Vol.  note  2. 

II  Langton  v.  Hughes,  107  Mass.  272.    Compare  Farncr  v.  Turner,  1  Iowa,  58. 


206  ACTIONS  AGAINST  PARTNERS. 

alleged  were  copartners ;  and  the  failure  to  prove  that  others  were 
is  matter  of  variance,  to  be  disregarded  unless  defendant  is  prej- 
udiced.1 Under  the  new  procedure,  a  dormant  partner,  although 
one  of  the  real  parties  in  interest,  should  not  be  held  a  necessary 
co-plaintiff;2  and  evidence  showing  that  the  partners  who  sue 
are  "  trustees  of  an  express  trust "  for  him,  within  the  statute,3 
clearly  dispenses  with  the  necessity  of  joining  him.  So  also 
would  evidence  that  the  contract  was  taken  in  the  name  of  a 
part  of  the  firm  by  assent  of  the  others.4  Neither  evidence  that 
a  third  person  employed  by  plaintiffs  has  an  interest  in  the  profits 
and  therefore  in  the  recovery,5  nor  the  fact  that  he  was  a  nom- 
inal partner,  under  a  stipulation  that  he  was  to  have  no  interest, 
but  to  receive  wages  or  a  salary  only,6  is  enough  to  prove  him  a 
partner.7  If  the  existence  of  a  partner  who  is  not  joined,  does 
not  appear  in  the  complaint  nor  in  the  answer,  evidence  of  the 
fact  is  not  ground  for  dismissing  the  complaint.8 

II.  ACTIONS  AGAINST  PARTNEKS. 

8.  Allegation  of  partnership.] — If  it  is  substantially  alleged 
in  the  complaint  that  the  defendants  contracted  as  partners,  the 
fact  of  partnership  will  be  "put  in  issue  by  a  general  denial,9 
though  not  by  a  denial  of  the  contract  alleged.10    Under  a  gen- 
eral allegation  of  partnership,  plaintiff  may  prove  a  supposed 
special  partnership  under  the  statute,  and  the  violations  of  the 
statute  relied  on  as  rendering  the  defendant  liable  as  general 
partner.11    Where  a  joint  liability  appears  on  the  face  of  the  con- 
tract, a  partnership  need  neither  be  afleged  nor  proved  ; n  and  the 
chief  effect  of  alleging  and  proving  it,  is  to  open  the  way  for 
admitting  more  freely  the  acts  and  declarations  of  one  partner 
against  the  others.13 

9.  Proof  of  partnership!} — Plaintiffs  may  prove  defendant's 
partnership  in  the  same  way  in  which,  as  above  stated,  plaintiffs 


I  Fee  Fowler  r.  Atlantic  Mut.  Ins.  Co.  8  Bosw.  332,  344.    Compare  paragraph  37. 
8  This  was  the  common  law  rule,  but  the  contrary  was  held  in.  Secor  v.  Keller,  4 

Dner,  419.  The  soundness  of  this  case  is  doubtful  under  the  Code,  as  amended  in  1 861. 
See  MoaVs  Van  Sant.  PI.  90, 118.  The  better  opinion  is  that  the  partnership  relation 
is  itself  sufficient  evidence  of  a  trust.  See  also  Chew  v.  Brumagem,  la  Wall  497. 

8  N.  Y.  Code  Civ.  Pro.  §  459. 

4  Mynderse  v.  Snook,  1  Lans.  488. 

8  Lewis  v.  Greider,  51  N.  Y.  231,  affi'g  49  Barb.  606. 

«  Beudel  v.  Hettrick,  85  Super.  Ct.  (3  J.  <fc  S.)  405. 

7  Compare  paragraphs  11  to  19.     See  Law  v.  Cross,  1  Black,  637.     Declarations 
of  the  omitted  one  are  not  competent  to  prove  the  partnership.     McFadyen  v.  Har- 
rington, 67  N.  C.  29. 

8  Dickinson  v.  Vanderpoel,  2  Hun,  626. 
*  See  paragraph  1 . 

10  Anable  v.  Conklin,  25  N.  Y.  470,  affi'g  16  Abb.  Pr.  Z86.     Compare  Oechs  v. 
Cook,  3Duer,  161. 

II  Stone  v.  De  Puga,  4  Sandf.  681.     See  paragraph  36. 
15  Kendall  v.  Freeman,  2  McLeau,  189. 

18  See  paragraphs  23,  32,  62. 


ACTIONS  AGAINST  PARTNERS.  207 

may  prove  themselves  to  be  partners.1  The  existence  of  a  firm 
may  be  inferred  from  the  agreement  of  dissolution  ;  but  even  a 
formal  notice  of  dissolution  signed  by  all  the  members,  and  pub- 
lished, stating  a  dissolution  on  a  day  named,  is  not  conclusive 
evidence  against  them  that  the  firm  continued  until  that  day.3 
The  names  of  the  members  must  be  proved ;  but  slight  evidence 
is  enough  to  go  to  the  jury.3  If  the  witness  cannot  recollect  the 
names,  a  list  of  names  may  be  read  to  him,  and  he  may  be  asked 
whether  those  persons  are  members.4  As  the  adverse  party  has 
not  the  same  means  of  knowledge,  he  is  not  to  be  held  to  make 
so  strict  proof  of  the  partnership  as  if  proving  his  own.5 

10.  Best  and  secondary  evidence."] — If  the  question  involves 
the  construction  of  written  articles  of  agreement,  they  should  be 
called  for  as  a  foundation  for  secondary  evidence.6    The  proper 
certificates  of  acknowledgment  or  proof  under  the  statute,  render 
the  instrument  competent,  without  other  proof  of  execution.7 
And  the  whole  of  the  agreement  must  be  taken  together.8    But 
even  though  the  articles  do  not  establish  a  partnership,  it  may  be 
established  by  parol  evidence.9     Parol  evidence  is  competent, 
even  for  the  purpose  of  proving  a  partnership  in  transactions  in 
real  property.10    And  where  written  articles  are  proved,  the  prior 
existence  of  the  relation  may  still  be  proved  by  parol.11 

11.  Indirect  evidence  of  partnership.] — A  partnership  may  be 
shown  by  the  separate  admissions,  acts,  declarations  or  conduct 
of  the  parties,  or  by  the  act  of  one,  the  declaration  of  another, 
and  the  acknowledgment  or  consent  of  a  third ; 12  and  it  matters 
not  which  declaration  is  offered  first.13    But  it  can  never  be 
proved  in  this  way  alone,  unless  the  evidence  fixes  such  a  conces- 
sion on  each  or  all  of  those  charged.     The  concession  of  one  is  evi- 
dence against  himself,  but  not  against  another,  unless  shown  to 


1  Paragraph  2.     Widdefield  v.  Widdefield,  2  Binn.  (Penn.)  245  ;  s.  p.  37  Penn.  St. 
92,  and  cases  cited. 

8  Emerson  v.  Parsons,  46  N.  Y.  660,  affi'g  2  Sweeny,  447. 
8  Varnum  v.  Campbell,  1  McLean,  313. 
4  Acerro  v.  Petroni,  1  Stark.  100. 

6  See  McGregor  v.  Cleveland,  5  Wend.  475.    Thus,  if  plaintiff  proves  that  de- 
fendants were  partners,  and  proves  a  contract  made  by  one  member  signed  with  his 
own  name  and  the  addition  "  <fe  Co.,"  this  is  enough  to  go  to  the  jury  without  prov- 
ing that  defendants  did  business  under  that  name.     Drake  v.  Whittaker,  1  CaL  184, 
KENT,  J. 

8  Price  v.  Hunt,  69  Mo.  258.     As  to  subpoena  duces  tecum,  and  notice  to  produce, 
see  McPherson  v.  Rathbone,  7  Wend.  216. 

7  Mattison  v.  Demarest,  4  Robt.  161 ;  and  see  page  6  of  this  vol.  paragraph  11. 

8  Manhattan  Brass  Manufacturing  Co.  v.  Sears,  1  Sweeny,  426. 

9  McStea  v.  Matthews,  60  N.  Y.  167. 

10  Chester  v.  Dickinson,  54  N.  Y.  1,  8,  affi'g  62  Barb.  349. 

11  Id. 

11  Barcroft  v.  Haworth,  29  Iowa,  4G2. 
»  Edwards  v.  Tracy,  62  Pa.  St.  874. 


208  ACTIONS  AGAINST  PARTNERS. 

have  been  authorized  or  ratified  by  that  other.1  To  admit  such 
evidence  generally,  as  if  competent  against  all,  where  there  is  no 
other  eviaence  against  the  others,  is  error.3 

12.  Holding  out  to  the  public."] — Without  other  evidence  of  a 
partnership  in  fact  as  between  the  defendants,  liability  of  a  defend- 
ant as  if  a  copartner  is  established  by  evidence  that  he  held  him- 
self out,  or  suffered  himself  to  be  held  out  to  the  world  as  a 
partner ; 8  and  for  this  purpose  it  is  not  necessary,  at  least  in  the 
first  instance,  to  prove  a  representation  to  the  plaintiff.4  Where 
it  is  proved  that  they  advertised  that  they  were  partners,  it  may 
be  presumed  that  the  plaintiff's  subsequent  dealings  were  on  the 
faith  of  the  partnership.5  A  nominal  partner,  held  out  as  such, 
is  liable  though  having  no  interest,  and  receiving  only  wages,6  or 
a  mere  compensation  for  the  use  of  his  name.7  13ut  if  it  appear 
that  plaintiff  was  ignorant  of  the  representations,  or  did  not  deal 
on  the  faith  of  them,  they  are  not  conclusive,8  and  may  be  re- 
butted by  evidence  that  there  was  no  partnership  whatever, 
active,  nominal  or  constructive.9 


1  See  notes  to  paragraph  14,  and  also  Chapter  VII.  Whether  evidence  of  an  ad- 
mission of  his  own  liability  by  one,  coupled  with  evidence  of  an  admission  of  liabil- 
ity as  a  partner  by  the  other,  is  enough,  compare  Mitchell  v.  Roulstone,  2  Hall,  351 ; 
and  Brahe  v.  Kimball,  5  Sandf.  237. 

s  Whitney  v.  Ferris,  10  Johns.  66.  The  usage  of  other  persons  is  not  competent. 
Foye  v.  Leighton,  22  N.H.  71. 

3  If  the  evidence  is  objected  to,  the  offer  should  be  explicit,  and  not  susceptible 
of  being  understood  as  an  offer  to  prove  general  repute.     Bowen  v.  Rutherford,  60 
I1L  41,  s.  c.  14  Am.  R.  25. 

4  For  this   purpose,  evidence    is    competent    that    the    defendant   dealt  as  a 
copartner  of   the    other   defendants  in    their    transactions    with    third    persons. 
Bennett  v.  Holmes,  32  Ind.  108.    That  handbills,  bearing  their  names  as  partners, 
were  circulated  by  the  defendant  (Walcott  v.  Caulfield,  3  Conn.  195);    or  were 
so  circulated  that  they  must  reasonably  be  presumed  to  have  come  to  his  notice 
(Tumlin  v.  Goldsmith,  40  Geo.  221 ;    compare  McNamara  v.  Dratt,  33  Iowa,  885) ; 
that  merchandise  on  the  premises  was  marked  with  their  firm  name  (Penn  v.  Kearney, 
21  La.  Ann.  21) ;  and  that  they  suffered  judgment  by  default  when  sued  as  partners 
in  another  action.     Cragin  v.  Carleton,  21  Me.  493 ;  compare  Hall  v.  Lanning,  91  U. 
8.  (1  Otto),  160.     So  a  contract  or  conveyance  made  in  the  firm  name,  and  signed  by 
each,  though  foreign  to  the  matter  in  suit,  is  competent  as  an  admission.     Crowell  v. 
Western  Reserve  Bk.  3  Ohio  St.  406,  414.     So  is  their  joint  application  for  a  license 
for  their  business.    Conklin  v.  Barton,  43  Barb.  435. 

6  Kelly  v.  Scott,  49  N.  Y.  595. 

6  See  Beudel  v.  Hettrick,  85  Super.  Ct.  (J.  &  S.)  411. 

7  Poillon  v.  Secor,  61  N.  Y.  456.    The  better  opinion  is  that  a  general  holding 
out  is  enough  to  raise  a  legal  presumption  of  partnership,  irrespective  of  whether 
the  representation  was  brought  to  the  dealer's  notice.     Poillon  v.  Secor,  61  N.  Y. 
456 ;  Case  of  Wright,  26  Weekly  R.  195,  s.  o.  5  Rep.  670.    Some  authorities  hold  that 
plaintiff  must  prove  that  he  dealt  on  the  faith  of  the  representation:  that -mere  rep- 
resentations to  third  persons  are  not  competent.     Teller  v.  Patten,  20  How.  U.  S. 
125  ;  Bowen  v.  Rutherford,  60  111.  41,  B.  c.  14  Am.  R.  25 ;  Heffner  v.  Palmer,  67  111. 
161 ;  and  that  a  representation  made  to  the  particular  creditor  is  not  enough  to  take 
the  case  from  the  jury,  unless  made  before  credit  given  or  contract  made.     Ridgway 
v.  Philip,  5  Tyrwhitt,  131.   These  rulings  are  not  well  considered.   But  on  a  question 
of  priority  between  individual  and  partnership  debts,  isolated  statements  to  a  stranger 
are  not  enough.     Case  of  Wright  (above). 

8  Bostwick  v.  Champion,  11  Wend.  582,  NELSON,  J. 
»  Fitch  v.  Harrington,  13  Gray,  4C8,  470. 


ACTIONS  AGAINST  PARTNERS.  209 

13.  Representations  to  particular  creditor.'] — Proof  that  de- 
fendants represented  or  conducted  themselves  as  partners,  and 
were  trusted  as  such  in  the  dealing  in  question,1  or  that  the  only 
one  whose  relation  is  contested  did  so,*  is  conclusive ;  and  their 
own  acts  and  declarations,  showing  that  they  were  not  partners, 
cannot  then  disprove  their  liability.    Where  such  representations 
are  proved,  evidence  of  similar  representations,  made  at  about  the 
same  time  to  third  persons,  is  competent  in  corroboration.8    A 
representation  made  by  one  will  bind  the  others,  if  he  was  au- 
thorized by  them  to  make  it ; 4  and  the  fact  of  his  authority  may 
be  proved  by  his  own  testimony. 

14.  Admissions  and  declarations  to  prove  partner  ship. ~\ — As 
against  any  one  defendant,  whether  litigating  the  case,  or  not 
appearing,*  or  not  even  served,6  evidence  of  his  own 7  admission, 
whether  made  to  the  plaintiff,8  or  to  third  persons,9  and  whether 
made  at  or  after  the  transaction  in  suit,10  or  within  a  reasonable 
time  before  it,11  is  competent  for  the  purpose  of  proving  the  ex- 
istence of  the  firm,12  his  own  membership,13  who  were  his  copart- 
ners,14 and  what  was  the  nature  and  scope  of  the  business.15    But 
such  evidence  is  incompetent  as  against  any  other  than  the  declar- 
ant, except  in  connection  with  other  prima  facie  evidence  that 
such  other  was   a  partner    with    the    declarant,16    or    author- 

1  Johnston  v.  "Warden,  3  Watts,  101 ;  Kelly  v.  Scott,  49  N.  Y.  601. 

5  Hicks  v.  Cram,  17  Vt.  449;  Kelly  v.  Scott,  48  N.  Y.  601.  Even  though  ho  was 
actually  a  special  partner.  Barrows  v.  Downs,  9  R.  I.  446.  Where  the  question  is 
which  of  two  persons  of  the  same  surname  was  the  partner,  evidence  that  the  one 
joined  as  defendant  represented  himself  as  such  to  plaintiff,  and  that  the  other  person 
was  unknown  to  plaintiff,  is  competent  without  anything  to  connect  the  other  defend- 
ant with  the  holding  out.  Hicks  v.  Cram,  17  Vt.  449,  REDFIELD,  J.  A  letter  saying 
that  the  writer  is  "  interested"  in  a  firm,  and  asking  credit  for  them,  is  evidence  to 
charge  the  writer  as  a  member  for  credit  given  on  the  faith  of  the  letter,  until  notice 
of  dissolution.  Carmichael  v.  Greer,  55  Geo.  116. 

3  Hicks  v.  Cram  (above). 

4  Montgomery  v.  Bucyrus  Machine  Works,  92  U.  S.  (2  Otto),  257 ;    Hinman  v. 
Littell,  23  Mich.  484. 

5  Taylor  v.  Henderson,  17  Serg.  <fe  R.  453,  457. 

8  Grafton  Bank  v.  Moore,  14  N.  H.  145,  146. 

7  As  to  admissions  made  by  an  agent,  see  Campbell  v.  Hastings,  29  Ark,  B.12; 
Hoppock  v.  Moses,  43  How.  Pr.  201. 
B  See  paragraph  13. 

9  Bennett  v.  Holmes,  32  Ind.  108 ;  and  see  other  illustrations  in  noto  4  to  para- 
graph 12. 

10  Taylor  v.  Henderson,  17  Serg.  &  R.  453,  457. 

11  Bennett  v.  Holmes  (above);  Ralph  v.  Harvey,  1  AdoL  &  E,  N.  S.  845,  849,  8.  a 
41  Eng.  Com.  L.  803. 

18  Johnson  v.  Warden,  3  Watts,  101. 

13  Edwards  v.  Tracy,  62  Pen n.  St.  374;   Crossgrove  v.  Himmelrich,  54  Id_  203; 
Fleshman  v.  Collier,  47  Geo.  253. 

14  Taylor  v.  Henderson,  17  Serg.  <fe  R.  453,  457. 
16  Smith  v.  Collins,  115  Mass.  388,  399. 

16  Pleasunts  v.  Faut,  22  Wall.  120;  McPherson  v.  Rnthbone,  7  Wend.  216  ;  Robins 
V.  Warde,  1 1 1  Mass.  24'4 ;  Donley  v.  Hall,  5  Bush,  549.  It  is  not  alone  enough  to 
show  that  the  others  had  previously  been  members  with  the  declarant  of  another 
firm  which  nvanwliilo  was  dissolved.  Kirby  v.  Hewitt,  26  Barb.  607.  Compare 
Johnson  v.  Gallivan,  52  N.  U.  143;  Van  Epsv.  Dillaye*  6  Barb.  244. 
14 


210  ACTIONS  AGAINST  PARTNERS. 

ized  him  to  make  the  representation,1  or  was  aware  of  it  and 
silent.2 

15.  Hearsay.'] — Neither  general  reputation,8  common  rumor,4 
nor  the  opinion  or  belief5  of  a  witness  founded  on  such  hearsay, 
is  competent  evidence  of  partnership.     The  question  turns  on 
the  assent  of  the  one  to  be  charged.6    Hence  a  business  directory 7 
or  the  reports  of  a  commercial  agency,8  are  not  admissible,  unless 
knowledge  of  the  statement,  or  means  of  knowing  it,  is  brought 
home  to  the  party  charged. 

16.  Ownership.] — The  joint  purchase  or  ownership  of  prop- 
erty,9 whether  real 10  or  personal, x  is  not  alone  any  evidence  of 
partnership  ; 12  though  coupled  with  participation  in  profits,13  or 
evidence  of  agency  for  each  other,14  it  may  be  equivalent. 

17.  Dormant  and secret  partner >8.~\ — To  charge  a  dormant  part- 
ner with  the  others,  the  knowledge  or  ignorance  of  those  dealing 
with  the  firm,  that  he  was  such,  is  wholly  immaterial.     It  is 
enough  to  prove  that  he  was  actually  a  partner,15  unless  the  con- 
tracting party  had  knowledge  of  the  relation,  and  dealt  solely  on 


1  Paragraph  11. 

8  Bancroft  v.  Harworth,  29  Iowa,  462 ;  and  see  Campbell  v.  Hastings,  29  Ark. 
512.  Strictly  speaking,  when  there  is  prima  facie  proof  of  partnership  as  against 
the  others,  the  declaration  does  not  really  corroborate  it,  as  against  the  others;  but 
it  ceases  to  be  error  to  receive  it  as  against  them.  See  Gardner  v.  Northwestern 
Mfg.  Co.  52  111.  367. 

3  Bowen  v.  Rutherford,  60  EL  41,  s.  c.  14  Am.  R.  25 ;  Brown  v.  Crandall,  1 1 
Conn.  93.     Such  evidence,  if  competent  at  all,  is  so  only  for  two  purposes:    1.  In  cor- 
roboration  of  previous  evidence.     2.  To  enow  knowledge  on  the  part  of  plaintiff. 
Not  ns  direct  and  principal  evidence.    Turner  v.  Mcllhaney,  8  Cal.  675.    Even  when 
admitted  without  objection,  it  is  not  alone  enough  to  sustain  a  finding  that  partnership 
existed.     But,  if  admitted  without  objection,  it  may  be  considered  in  connection  with 
other  evidence  pf  partnership.     Halliday  v.  McDougall,  22  Wend.  264.     It  may  be 
competent,  where  the  partnership  is  not  directly  in  issue,  but  only  incidentally  in 
question;  as,  for  instance,  when  relied  on  as  an  excuse  for  not  giving  notice.    Go  wan 
v.  Jackson,  20  Johns.  176. 

4  Tumlin  v.  Goldsmith,  40  Geo.  221. 
B  Hicka  v.  Cram,  17  Vt.  449. 

*  Bowen  v.  Rutherford  (above). 

7  Union  Bank  v.  Mott,  39  Barb.  180. 

8  Campbell  v.  Hastings,  29  Ark.  512. 

'  For  the  distinction  between  partnerships  and  other  associations,  see  Ebbing- 
housen  v.  Worth  Club,  4  Abb.  New  Cas.  300,  308  note ;  Raisbeck  v.  Oesterricher,  Id. 
847;  Story  on  Partn.  ch.  xvi;  1  Wood's  Coll.  9-48. 

10  Thompson  v.  Bowman,  6  Wall.  316. 

11  Such  as  a  patent.     Boeklen  v.  Hardenberg,  60  N.  Y.  8,  affi'g  37  Super.  Ct.  (J.  <fe 
S.)  110. 

12  And  mere  declarations  of  one  that  they  "bought  it  in  partnership,"  may  not  be 
alone  enough,  for  he  may  have  meant  merely  as  tenants  in  common.     Gregory  v. 
Martin,  78  111.  88. 

13  Paragraph  18.    Compare  Davis  v.  Morris,   36  N.  Y.  569,  affi'g  35  Barb.  227; 
Reynolds  v.  Cleveland,  4  Cow.  282. 

'"  Ebbinghousen  v.  Worth  Club,  4  Abb.  New  Cas.  300;  Phillips  v.  Nash,  47  Geo. 
218. 

15  Lea  v.  Guice,  13  Smedes  <fe  M.  656,  669. 


ACTIONS  AGAINST  PARTNERS.  211 

the  credit  and  name  of  the  others.1  Generally,  fraud  in  the  pur- 
pose of  forming  the  firm,  is  not  relevant  in  support  of  the  exist- 
ence of  partnership,2  but  to  charge  a  secret  or  dormant  partner, 
evidence  of  his  declarations,  even  to  third  persons,  that  the  part- 
nership existed  and  was  concealed,3  is  competent ;  and  his  offers 
to  third  persons  to  become  a  secret  partner  for  the  purpose  of 
concealing  his  property,  are  competent,  in  corroboration  of  other 
evidence/ 

.  18.  Community  of  profits  ;  the  common  law  rule.'] — At  com- 
mon law  (both  in  courts  of  law  and  of  equity)  it  is  sufficient  to 
establish  the  liability  of  an  alleged  partner,  to  show  that  by 
agreement5  he  had  a  right6  in  the  entire  net  profits,7  which  enti- 
tled him  to  a  definite  share,8  as  profits.  This  rule,  still  commonly 
followed  in  our  courts,  though  not  in  England,  is  regarded  as  a 
conclusive  presumption,  in  the  absence  of  evidence  showing  that 
he  received  it  not  as  the  profits  of  a  principal,  or  of  money,  but  in 
some  other  character  not  involving  that  of  partner.9 


1  Bigelow  v.  Elliott,  1  Cliff  28 ;  Palmer  v.  Elliott,  Id.  63. 

2  Thomas  v.  Moore,  71  Penn.  St.  193. 
8  Bennett  v.  Holmes,  32  Ind.  108. 

4  Butts  v.  Tiffany,  21  Pick.  95. 

5  Even  where  the  partnership  was  in  a  real  estate  transaction,  the  agreement  need 
not  be  in  writing.     Chester  v.  Dickenson,  54  N.  Y.  1,  affi'g  52  Barb.  349. 

6  Pars,  on  Partn.  70.     The  right  to  an  account  has  commonly  been  regarded  as 
a  decisive  circumstance ;  but  this  is  doubtful.     See  Bentley  v.  Harris,  10  R.  I.  434, 
8.  c.  14  Am.  R.  695. 

7  Sharing  in  losses  is  not  essential.     Manhattan  Brass  Co.  v.  Sears,  45  N.  Y.  797. 

8  A  voluntary  promise  to  pay  an  indefinite  share  is  not  even  competent  evidence 
of  partnership.     Pleasants  v.  Fant,  22  Wall.  116." 

9  Leggett  v.  Hyde,  58  N.  Y.  272,  affi'g  1  Supm.  Ct.  (T.  &  C.)  18,  and  cases  cited; 
and  see  King  v.  Sarria,  69  N.  Y.  35.     The  principle  running  through  the  well  con- 
efdered  cases  which  apply  this  rule,  is  that  on  the  one  hand  disavowals  of  the  part- 
nership relation  in  an  agreement,  or  even  the  withholding  of  some  of  the  usual  powers 
of  partners,  cannot  negative  the  obligation  to  creditors,  if  any  substantial  elements 
of  the  partnership  relation  existrin  a  joint  adventure,  for  the  sake  of  profit,  as  such; 
yet,  on  the  other  hand,  a  right  to  draw  profits  by  way  of  compensation  does  not 
alone  make  a  partner  of  one  whose  real  relation  is  that  of  agent,  servant,  factor,  land- 
lord, annuitant,  or  co-tenant  without  agency,  and  the  like.    The  court  look  at  the  real 
relation  resulting  from  the  engagements  of  the  parties,  and  if  it  does  not  establish 
some  other  and  subordinate  tie,  they  give  effect,  in  favor  of  creditors,  to  the  doctrine 
that  he  who  has  a  right  in  the  profits  as  such  must  bear  his  share  of  the  liabilities. 
And  this  is  applied  as  a  rule  of  law.    It  is  not  enough  that  the  parties  did  not  intend 
a  partnership,  nor  that  they  intended  there  should  be  none.     They  must  have  in- 
tended and  constituted  a  distinct  and  different  relation  excluding  that  of  partnership. 
See  Leggett  v.  Hyde  (above);  Eastman  v.  Clark,  53  N.  H.  276,  s.  c.  16  Am.  R.  192; 
Parker  v.  Canfield,  37  Conn.  250,  s.  c.  9  Am.  R.  317  ;  Connolly  v.  Davidson,  15  Minn. 
519,  s.  c.  2  Am.  R.  154;  Owens  v.  Mackall,  33  Md.  382;  Notes  in  13  Monk's  Eng. 
839. 

In  the  following  cases  participation  in  profits  has  been  held  not  to  prove  part- 
ne'rship  within  the  foregoing  rule  (2  Am.  L.  Rev.  1,  23,  193): 

I.  When  the  participant  is  legally  incapable  of  contracting  generally.    (Id.  7  ;  but 
seel  Wood's  Coll.  12.) 

II.  When  his  stipulations  were  to  the  effect  that  he  should  not  be  liable  to  cred- 
itors, and  the  creditor,  at  the  time  of  the  dealing,   knew  of  such  stipulations. 
(Aldersou  v.  Pope,  1  Campb.  404  a  ;  and  see  Livingston  v.  Roosevelt,  4  Johns.  251, 
266.) 


212  ACTIONS  AGAINST  PARTNERS. 

19.  —  the  English  rule.] — The  English  rule,  adopted  also  in 
some  American  States,1  is  that  the  test  of  liability  is  not  merely 
whether  there  was  a  participation  of  profits,  but  whether  there 
was  such  a  participation  as  constituted  the  relation  of  principal 
and  agent  between  the  percipients  and  the  actors  in  the  business  ;3 
and  therefore  participation  in  profits  is  not  conclusive  evidence 
of  partnership,  but,  at  best,  a  circumstance  to  be  considered,  with 
others,  in  determining  whether  the  relation  of  the  parties  was 
such  as  to  create  that  agency  between  them  in  which  partnership 
consists.     It  is  a  cogent  circumstance,  but  the  inference  of  part- 
nership arising  from  it  is  susceptible  of  control  by  other  circum- 
stances of  the  case.3 

20.  Evidence  in  respect  to  Date."] — To  charge  one  as  partner, 
he  must  be  shown  to  have  been  a  member  when  the  contract  sued 
on  was  made,4  or  the  tort  committed,5  unless  his  assumption  of 
prior  liabilities  is  shown.     But  a  partnership  shown  once  to  have 
existed,  is  presumed  to  continue  until  the  contrary  is  shown.6 


III.  When  the  participation  is  in  profits  derived  from  a  contract  of  shipment  on  half 
profits,  as  is  generally  practiced  in  this  country.     (Story  on  Partn.  72,  §§  43,  44. 
Compare  Eldridge  v.  Troost,  3  Abb.  Pr.  N.  S.  20,  8.  c.  6  Robt.  518;  Post  v.  Kim- 
berly,  9  Johns.  470;  Marsh  v.  N.  A.  Ins.  Co.  3  Biss.  351.) 

IV.  When  the  profits  are  taken  in  lieu  of  rent  (Holmes  v.  Old  Colony  R.  R.  Co.  5 
Gray,  58  ;  3  Kent's  Com.  33,  34.     Compare  Cusbman  v.  Bailey,  1  Hill,  526  ;  Catskill 
Bank  v.  Gray,  14  Barb.  471) ;  or  for  other  general  benefits  rendered  a  firm.     (2  Am. 
L.R.  23.) 

V.  When  taken  by  seamen  in  lieu  of  wages.     (Story  on  Partn.  69,  §  42.) 

VI.  When  taken  as  compensation  for  labor  or  services,  performed,  not  as  prin- 
cipal (Dob  v.  Halsey,  16  Johns.  34);   but  as  agent,  servant,  factor,  broker,  <fcc. 
(Burckle  v.  Eckhart,  3  N.  Y.  132.) 

VII.  When  the  participants  are  creditors,  and  participate  to  the  extent  of  their 
claims,  in  the  profits  of  a  partnership  carried  on  for  their  benefit,  as  creditors.  (Brun- 
dred  v.  Muzzy,  I  Dutch.  N.  J.  268,  279 ;  and  see  Cox  v.  Hickman,  8  Ho.  of  L.  268 ; 
9  C.  B.  N.  S.  47,  reVg  3  C.  B.  N.  S.  523  ;  18  C.  B.  617  ;  and  see  69  N.  Y.  35.) 

VIII.  When  the  participant  is  an  annuitant,  and  does  not  take  the  profits  as  profits, 
but  relies  upon  them  merely  as  a  fund  for  paying  an  annuity  to  which  he  is  entitled 
from  the  firm.     (Story  on  Partn.  115,  §§  66-70.) 

IX.  When  he  is  the  devisee  of  a  deceased  partner,  and  receives  the  profits  derived 
from  funds  left  by  the  will  of  a  deceased  partner  in  the  firm ;  and  he  does  not  go  into 
the  firm  for  the  purpose  of  personally  representing  such  funds.    (Id ;  2  Am.  L.  R.  17 ; 
Burwell  v.  Mandeville,  2  How.  U.  S.  560 ;  Pitkin  v.  Pitkin,  7  Conn.  307.) 

Whether  one  who  has  an  interest  in  the  separate  share  of  a  partner  in  the  profits 
of  the  firm, — that  is,  a  sub-partner, — is  liable  to  creditors,  with  the  partners,  is  dis- 
puted. (Neg.  1  Wood's  Coll.  44,  §  27.  Affi.  Fitch  v.  Harrington,  13  Gray,  468.) 

1  See  Harvey  v.  Childs,  22  Am.  R.  387,  s.  c.  28  Ohio  St.  319,  and  cases  cited. 

2  Cox  v.  Hickman,  8  Ho.  of  L.  Cas.  268,  306. 

3  Ex  parte  Tennant,  37  Law  Times  N.  S.  285.    And  see  Holme  v.  Hammond,  L. 
R.  7  Exch.  218,  8.  c.  2  Moak's  Eng.  R.  125 ;  Mollevo  v.  Court  of  Wards,  L.  R.  4  P. 
C.  419,  s.  c.  4  Moak's  Eng.  121. 

4  Fuller  v.  Rowe,  57  N.  Y.  23,  rev'g  59  Barb.  344.    Proof  of  a  stipulation  that,  as 
between  the  partners,  the  partnership  shall  be  deemed  to  have  commenced  at  a  date 
prior  to  its  actual  commencement,  will  not  alone  charge  them  in  favor  of  creditors. 
2  Wood's  Coll.  1113,  n. ;  unless  sufficient  to  show  assumption  of  intermediate  liabil- 
ities.    Hengst's  App.  24  Penn.  St.  413. 

5  Chester  v.  Dickinson,  54  N.  Y.  1,  affi'g  52  Barb.  349. 

6  Walrod  v.  Ball,  9  Barb.  271 ;  Cooper  v.  Dedrick,  22  Barb.  516  ;  s.  P.  Wilkina  v. 
Earle,  44  N.  Y.  172;  Fassin  v.  Hubbard,  55  Id.  465. 


ACTIONS  AGAINST  PARTNERS.  213 

Hence  evidence  of  its  existence  within  a  reasonable  time  prior  to 
the  date  of  the  transaction  in  suit,  is  competent ; :  and  in  connec- 
tion with  such  evidence,  or  any  evidence  tending  to  show  a 
partnership  at  the  time  of  the  transaction,  evidence  of  its  exist- 
ence within  a  reasonable  period  afterward  is  admissible.2  The 
date  in  the  articles  is  not  sufficient  evidence  of  the  date  of  execu- 
tion,3 except  as  against  a  party  to  the  articles.  The  creditor  may 
prove  the  commencement  of  the  partnership  from  the  commence- 
ment of  the  agency  or  holding  out,  though  that  be  before  the 
commencement  of  the  contemplated  business  of  the  concern,4  and 
before  the  performance  of  conditions  precedent  in  the  articles,5 
or  even  before  the  date  or  execution  ol  the  articles. 

21.  Assumption  of  debts  l)y  incoming  partner. ,] — In  the  ab- 
sence of  anything  to  indicate  that  an  incoming  partner  assumed 
liability  for  outstanding  debts,  the  presumption  of  law  is  that  he 
did  not.6    But  an  agreement  on  his  part  to  do  so  may  be  proved, 
either  by  his  express  contract,  or  by  inference  from  its  terms,  or 
from  the  treatment  of  such  debts,  by  the  new  firm,  to  the  knowl- 
edge of  the  incoming  partner,  as  the  debts  of  the  new  firm.7    If 
the  new  firm  takes  the  assets  and  continues  the  business  in  the 
same  place,  slight  evidence  is  sufficient  to  warrant  the  evidence 
that  it  has  assumed  the  liabilities  of  the  old  firm.8 

22.  Variance  as  to  number  of  partners^ — At  common  law, 
under  a  declaration  alleging  a  contract  bv  one  person,  if  he  inter  • 
posed  no  plea  in  abatement,  plaintiff  might  prove  a  contract  by 
a  firm  of  which  defendant  was  a  member  ; 9  and  under  the  new 
procedure,  a  recovery  against  one  or  several  may  be  had  under 
the  same  circumstances.     So,  on  the  other  hand,  when  several 
are  alleged  to  be  partners,  and  the  evidence  shows  that  only  a 
part  of  them  constituted  the  firm,  plaintiff  may  recover  against 
those  who  are  found  liable,  and  be  non-suited  as  to  the  others  ; 10 
whether  the  others  were  served  or  not.11    So  he  may  recover 


1  Burnett  v.  Holmes,  32  Ind.  108. 
8  Fleahman  v.  Collier,  47  Geo.  253. 
8  Philpot  v.  Gruninger,  14  Wall.  670. 
4  Aspinwall  v.  Williams,  1  Ohio,  84,  94. 
«  Burns  v.  Rowland,  40  Barb.  368. 

*  Story  on  Partn.  273,  §  152;  274,  §  153. 

7  Updike  v.  Doyle,  7  R.  I.  446,  463. 

8  Shaw  v.  McGregory,  105  Mass.  96 ;  Exp.  Peele,  6  Ves.  604. 

*  Barry  v.  Foyles,  1  Pet.  811;   Smith  v.  Cooke,  31  Md.  174.     As  to  variance  in 
the  case  of  limited  partnership,  where  the  sign  required  by  the  statute  was  not  dis- 
played, see  the  statute  N.  Y.  L.  1862,  p.  880,  c.  476,  §  1,  am'd'g  1  R.  S.  765,  §  13; 
2  N.  Y.  L.  1866,  p.  1424,  c.  661. 

10  Fielden  v.  Lahens,  2  Abb.  Ct.  App.  Dec.  Ill,  s.  c.  6  Abb.  Pr.  N.  S.  341,  reVg  9 
Bosw.  43(5;  Snelling  v.  Howard,  51  N.  Y.  373,  affi'g  7  Robt.  400;  and  see  p.  186  of 
this  vol.  n.  2. 

11  Pruyn  v.  Black.  21  N.  Y.  800;    McKensie  v.  Farrell.  4  Bosw.  192.     Contra, 
Smith  v.  Halett,  65  III  495. 


214:      t  ACTIONS  AGAINST  PARTNERS. 

against  one  only,  on  evidence  that  there  was  no  firm,  but  that 
such  one  was  solely  liable.1 

23.  Presumption  of  partner's  authority.'] — Under  an  allegation 
that  the  partners  did  an  act,  evidence  that  one  of  them  did  it  on 
their  behalf  is  admissible.2    If  the  act  was  within  the  scope  of 
their  business,  or  properly  incidental  to  an  act  within  the  scope 
of  their  business,8  and  done  in  the  firm  name,  and  not  requiring 
a  seal,  the  existence  of  the  partnership  is  sufficient  evidence  of 
authority,4  and  in  favor  of  one  who  gave  credit,  is  conclusive,  in 
the  absence  of  evidence  of  notice  of  actual  lack  of  authority.5    If 
the  act  be  not  of  such  character,  there  must  be  evidence,  either 
direct  or  circumstantial,6  tending  to  show  authority  or  ratifica- 
tion.7    Evidence  that  the  partner,  exercising  a  power  not  implied 
in  the  nature  of  the  partnership,  was  the  general  manager,  is  not 
enough.     If  the  authority  sufficiently  appear,  either  presumptive- 
ly or  by  direct  evidence,  it  is  not  necessary  to  show  that  the  part- 
nership had  the  benefit  of  the  consideration. 

24.  Evidence  as  to  the  scope  of  the  business,  &c.~] — To  prove 
the  scope  of  the  business  and  the  manner  of  transacting  it,  for  the 
purpose  of  establishing  the  authority  of  a  partner  to  bind  the 
others,  the  creditor  need  not  produce  or  call  for  the  articles,  un- 
less restrictions  in  them  are  shown  to  have  been  known  to  him. 
Evidence  of  the  previous  dealings,  the  acts  of  the  partners,  and 
the  length  of  time  such  a  course  of  business  has  continued,  <fec.,8 
and  of  the  common  and  usual  dealings  of  persons  engaged  in  the 
same  trade  or  business  at  the  same  locality,^  is  competent. 

25.  Evidence  of  express  authority.'] — The  admission  or  declar- 
ation of  one  partner  as  to  authority,  or  the  scope  of  business  from 
which  it  is  implied,  is  competent  as  against  him,10  but  the  partner- 
ship relation  does  not  authorize  him  to  exaggerate  its  scope,  as 
against  the  others,  by  his  declarations,  and  therefore  such  declar- 
ations are  not  competent  for  this  purpose  as  against  the  others,11 
even  if  made  as  part  of  the  res  gestce  of  the  act  in  question,12  un- 


1  Stimson  v.  Van  Pelt,  66  Barb.-  151 ;  Angel  v.  Cook,  2  Supm.  Ct  (T.  <fe  C.)  175, 
177. 

5  See  King  v.  Fitch,  2  Abb.  Ct.  App.  Dec.  508  ;  Walton  v.  Dodson,  3  Carr.  <fe  P. 
162. 

3  As,  for  instance,  directing  the  levy  of  an  execution  when  collecting  a  debt  due 
the  firm.     Chambers  v.  Clearwater,  1  Abb.  Ct.  App.  Dec.  341,  affi'g  41  Barb.  200. 

4  Smith  v.  Collins,  115  Mass.  388,  399. 

6  Edwards  v.  Tracy,  62  Penn.  374;  Hoskinson  y.  Elliot,  Id.  393. 

6  Butler  v.  Stocking,  8  N.  Y.  408. 

7  See  paragraphs  28  and  29. 

8  Clayton  v.  Hardy,  27  Mo.  636. 

9  Smith  v.  Collins,  1 15  Mass.  888,  399.     The  usage  must  be  that  of  the  particular 
trade  or  business.     Story  on  Partn.  202,  §  113. 

10  Smith  v.  Collins,  115  Mass.  388,  399. 

11  1  Wood's  Coll.  736,  §  459. 

14  Elliott  v.  Dudley,  19  Barb.  326. 


ACTIONS   AGAINST   PARTNERS.  215 

less  shown  to  have  been  authorized  or  permitted  by  such  others, 
or  to  have  been  so  open  or  continued  that  permission  may  be  in- 
ferred. 

26.  Question  to  whom  credit  was  given.'] — The  partnership 
having  been  proved,  and  the  act  not  being  beyond  its  scope,  the 
declaration  of  any  partner  made  at  the  time  of  the  transaction,1 
or  at  any  time  during  the  continuance  of  the  partnership  rela- 
tion,2 is  competent  to  show  that  the  act  was  done  on  behalf  of  the 
partnership ;  and  if  the  credit  was  obtained  on  the  faith  of  such 
declaration,  the  falsity  of  the  representation  is  not  material.3  To 
prove  that  the  transaction  was  for  partnership  purposes,  it  is 
prima  facie  enough  to  show  that  it  was  in  the  firm  name,4  except 
where  the  name  used  by  the  firm  was  merely  that  of  an  individ- 
ual partner.  Evidence  that  the  partner  acting  in  the  matter, 
signed  the  contract,  self  "  &  Co.,"  or  self  "  and  partners,"  is  prima 
facie  sufficient  proof  of  the  firm  name,  and  throws  on  defendants 
the  burden  of  showing  that  they  had  adopted  a  different  name.5 
If  they  had  not  adopted  a  different  name,  such  a  signature  will 
bind  tne  firm,  though  they  never  received  the  proceeds.6  If  the 
partners  had  not,  either  by  agreement  or  usage,  adopted  a  com- 
posite name,  the  fact  that  they  did  business  in  the  individual 
name  of  one  partner,  may  be  shown  by  evidence  of  their  usage,7 
especially  where  their  agreement  charged  him  with  the  sole  man- 
agement of  the  business,8  or  of  that  part  of  it  in  which  the  trans- 
action was  had.9  But  even  though  their  adoption  of  the  individual 
name  be  shown,  one  seeking  to  charge  the  co-partners  on  a  trans- 
action in  that  name  must  give  further  evidence  that  the  transac- 
tion was  had  in  the  business  of  the  partnership,  or  upon  its 
credit ; 10  otherwise  it  will  be  presumed  to  have  been  an  individual 
transaction.11  Evidence  that  it  was  actually  on  their  credit,  is 
alone  enough,12  and,  on  the  other  hand,  evidence  that  it  was 
actually  in  their  business,  if  the  dealer  did  not  expressly  restrict 
himself  to  the  individual  credit,  is  alone  enough,  even  though  he 
was  ignorant  of  the  other  partners,  and  of  the  partnership  object.13 


1  OHphant  v.  Mathews,  16  Barb.  608. 

*  Smitha  v.  Cureton,  31  Ala.  653;  conira,  1  Wood's  Coll.  645,  n.  3. 

8  Stockwell  v.  Dillingham,  50  Me.  442 ;  U  S.  Bank  v.  Binney,  5  Mas.  1Y6, 184. 

4  Wood's  Coll.  678,  n. 

8  Drake  v.  Elwyn,  1  Cai.  184,  s.  c.  less  fully,  3  Johns.  Cas.  694. 

6  Aspinwall  v.  Williams,  1  Ohio,  84 ;  Austin  v.  Williams,  2  Id.  61. 

1  Ontario  Bank  v.  Hennessy,  48  N.  Y.  545.  In  such  case  even  the  occasional 
drawing  of  a  bill,  <fcc.,  by  one  member  in  his  own  name,  for  partnership  purposes, 
is  competent  to  go  to  the  jury  as  evidence  of  trading  under  that  name,  but  does  not 
alone  raise  a  presumption  of  law.  Le  Roy  v.  Bayard.  2  Pet.  200. 

8  Id.     Id. 

»  See  Wright  v.  Ames,  4  Abb.  Ct  App.  Dec.  644. 

10  Story  on  Partn.  192,  §  106;  199,  §  106. 

11  OHphant  v.  Mathews,  16  Barb.  608. 
"  Story  on  Partn.  253,  §  1:59. 

18  Story  on  Partn.  253,  §  139.     Especially  if  the  avails  were  applied  to  the  firm 
use.    Ontario  Bank  r.  Hennessy  (above).    Compare  Story  on  Partu.  250,  §  136. 


'216  ACTIONS  AGAINST  PARTNERS. 

Where  a  partner  carries  on  the  firm  business  in  his  sole  name, 
and  also  carries  on  a  different  kind  of  business  of  his  own,  in  the 
same  name,  the  fact  that  the  dealer  knew  the  transaction  was  in 
aid  of  the  one  kind  of  business  or  the  other,  will,  in  the  absence 
of  other  evidence,  determine  the  question  ; x  and  neither  the  fact 
that  he  was  ignorant  of  the  partnership,  nor  that  the  considera- 
tion was  never  actually  applied  in  aid  of  its  business,  is  then  ma- 
terial.8 The  creditor's  entry  in  his  own  book,  charging  exclu- 
sively an  individual  member3  or  the  firm,  is  not  conclusive  against 
him  when  he  seeks  to  hold  the  firm  or  the  individual  alone  liable, 
but  may  be  explained  by  evidence  of  his  intent. 

27.  Parol  evidence  to  charge  firm  on  individual  signature."] — 
Where  a  written  contract  not  under  seal,  is  made,  not  in  the  firm 
name,  but  in  the  name  of  an  individual  partner,  parol  evidence  is 
competent  to  show  that  the  transaction  was  in  reality  for  firm 
account.4 

28.  —  of  sealed  instrument.] — The  general  implied  power  of 
a  partner  does  not  extend  to  binding  tne  firm  by  executory  in- 
struments under  seal ; 5  and  a  sealed  instrument 8  executed  in  the 
name  of  a  firm  by  one  of  its  members,  without  the  proper  au- 
thority, where  a  seal  is  necessary,  is  the  deed  of  such  member 
only,  and  he  alone,  is  bound  by  it.7    If  the  seal  is  unnecessary 
from  the  nature  of  the  instrument,  the  act  will  bind  the  firm  as 
a  simple  contract,8  although  it  sets  forth  that  the  firm  have  set 
their  nands  and  seals,  and  is  signed  on  behalf  of  the  firm,  by  one 
member  with  hia  seal.     The  seal  may  be  rejected  as  surplusage. 
Hence  a  sealed  note  is  competent  in  evidence  of  the  precedent 
debt  acknowledged  thereby.*    To  render  the  deed  of  the  firm, 
executed  by  one  partner,  valid  as  a  deed  by  the  firm,  it  is  enough 
to  show  a  prior  authority  or  a  subsequent  ratification  by  the  other 
partners,  either  in  writing  or  by  parol,  eitherexpress  or  implied.10 
Proof  that  the  "firm  actually  received  the  consideration,  is  enough.11 


1  Story  on  Partn.  253,  §  139. 
*  Id. ;  5  Pet.  529. 

8  Story  on  Partn  260,  §  144;  Smith  v.  Cooke,  81  Md.  174. 

4  Per  COWEN,  J.,  Lawrence  v.  Taylor,  5  Hill,  113 ;  Brown  v.  Lawrence,  5  Conn.  899. 
6  Schmertz  v.  Schreeve,  62  Perm.  St.  467,  a.  c.  1  Am.  R.  439,  and  cases  cited, 
SHARSWOOD,  J. 

6  Other  than  a  release. 

T  Gibson  v.  Warden,  14  Wall  247. 

8  As,  for  instance,  in  the  case  of  a  chattel  mortgage.     Gibson  v.  Warden  (above), 
or  a  contract  of  sale  of  goods  under  seal.     Schmertz  Y.  ShreeVe,  62  Penn.  St.  457. 
This  rule  cannot  avail  to  sustain  an  action  on  a  formal  bond  executed  by  a  part- 
ner, without  authority  or  ratification.     Russell  v.  Annable,  109  Mass.  72;  s.  c.  12 
Am.  R.  665.     As  to  a  lease,  compare  Mason  v.  Breslin,  9  Abb.  Pr.  N.  S.  427 ;  s.  o. 
40  How.  Pr.  436,  2  Sweeny,  886. 

9  Hoskinson  v.  Eliot,  62  Penn.  St.  893. 

10  Story  on  Partn.  214.  §  122 ;  Gibson  v.  Warden  (above).     In  an  action  for  rent, 
on  a  sealed  lease,  one  of  the  lessees  who  entered  under  the  lease,  is  estopped  to  show 
that  his  copartner  was  not  authorized  to  sign  his  name  to  it.     Holbrook  v.  Cham* 
berlin,  116  Mass.  155 ;  s.  c.  17  Am.  R.  146. 

11  Daniel  v.  Toney,  2  Mete.  (Ky.)  524. 


ACTIONS  AGAINST  PARTNERS.  217 

A  deed  running  to  the  firm  name,  even  though  conveying 
land,  may  be  explained  by  parol  evidence  of  who  composed  the 
firm.1 

29.  Evidence  of  ratification, ,] — To  make  an  act,  done  by  one 
partner,  beyond  the  scope  of  his  authority,  binding  on  the  others, 
a  clear  ratification  must  be  shown,  but  it  need  not  have  been  ex- 
press; it  may  be  inferred  from   circumstances.2    The  circum- 
stances must  be  such  that  knowledge,  and  action  thereon,  or 
knowledge  and  expressed  intent,  can  be  inferred.     Knowledge  of 
the  act  of  the  partner,  without  knowledge  of  the  facts  making  the 
act  a  fraud  on  them,  is  not  enough ; 3  and  silence  and  inaction 
under  full  knowledge,  is  not  enough,4  unless  made  so  by  being 
known  to  and  acted  on  by  the  other  party  as  a  reasonable  indica- 
tion of  assent.     Failure  to  give  notice  of  dissent  within  a  reason- 
able time  after  knowledge,  especially  if  coupled  with  evidence  of 
a  like  course  of  dealing  continued,  is  sufficient  to  go  to  the  jury.5 
Evidence  of  the  consideration  for  the  act  is  relevant  to  the  ques- 
tion of  implied  ratification ; 6  and  evidence  of  mere  expressions  of 
assent  is  competent.7     "Where  acts  of  ratification  are  shown,  in- 
tent that  they  should  have  that  effect  is  not  material.8 

30.  Evidence  of  Deceit  or  Fraud.'] — Evidence  of  fraud  or  de- 
ceit committed  by  one  partner,  in  a  transaction  in  the  course  of 
the  partnership  business,  is  competent  against  the  others,  and  can 
not  be  rebutted  by  proving  their  ignorance  or  innocence.9 

31.  Evidence  of  Other  torts.'] — If  the  act  itself  was  one  within 
the  scope  of  the  business,  and  done  as  such,  then  it  is  not  mate- 
rial that  the  other  partners  were  ignorant  and  innocent ; 10  nor 
that  it  was  wilful ; n  otherwise  if  the  act  was  wholly  foreign  to 
the  business.     If  the  act  was  presumptively  a-  partnership  act,  be- 
cause, though  not  in  the  line  of  the  trade,  it  was  incidental  to  the 
exercise  of  an  implied  power, — as  where  a  partner  in  collecting  a 
debt  due  the  firm  directs  an  officer  to  make  a  tortious  levy, — 
then  the  act  of  one  partner  is  presumptively  that  of  all ; 12  and 
evidence  that  they,  with  knowledge  of  the  facts,  received  the 
benefits  of  it,  is  conclusive  against  them.13 


I  Lindsay  V.  Hoke,  21  Ala.  642 ;  8.  P.  Webb  v.  Weather-head,  17  How.  U.  S.  576; 
paragraph  50  (below).     Contra,  Arthur  v.  Weston,  22  Mo.  283. 

*  1  Wood's  Coll.  677. 

8  Hayes  v.  Baxter,  65  Barb.  181. 

4  Elliott  v.  Dudley,  19  Barb.  326. 

8  Id. ;  Ferguson  v.  Shepherd,  1  Sneed,  256. 

6  Carter  v.  Pomeroy,  30  Ind.  438. 

T  Nichols  v.  English,  3  Brews.  260. 

8  Hazard  v.  Spears,  2  Abb.  Ct.  App.  Dec.  353. 

9  Chester  v.  Dickinson,  54  N.  Y.  1,  affi'g  52  Barb.  349;  Wolf  v.  Mills,  56  HI.  360. 

10  Stock  well  v.  United  States,  13  Wall.  631. 

II  Id.     Compare  Goldsmith  v.  Picard,  27  Ala.  142  ;  1  Wood's  Coll.  724,  8  449. 

11  Chambers  v.  Clearwater,  1  Abb.  Ct.  App.  Dec.  341  ;  Harvey  v.  McAdams,  32 
Mich.  472. 

"  Murray  v.  Binninger,  S  Abb.  Ct.  App.  Dec.  336. 


218  ACTIONS  AGAINST  PARTNERS. 

32.  Admissions  and  declarations  of  partners.] — After  evi- 
dence of  partnership,  and  of  its  scope  as  including  the  affairs  in 
question,  has  been  given,  an  admission  or  declaration  made  by 
one  partner,1  during  the  continuance  of  the  partnership  relation,2 
and  concerning  the  partnership  affairs 8  during  the  relation,4  is 
competent  against  all,  and  has  tne  same  effect  as  if  made  by  all.5 
If  the  admission  relates  4;o  the  partnership  affairs,  it  is  not  neces- 
sarily incompetent  because  expressed  rather  as  an  individual  than 
as  a  firm  declaration.6    The  competency  of  the  declaration  is  not 
affected  by  the  fact  that  it  was  made  to  a  stranger.7 

If  the  admission,  being  made  with  apparent  authority,  is  con- 
tractual, it  is  conclusive  in  favor  of  a  person  who  acted  on  it  in 
good  faith.  Otherwise  it  can  be  rebutted  by  proof  of  falsity. 

The  sufficiency  of  the  proof  of  partnership,  adduced  as  a  foun- 
dation for  proving,  against  one  partner,  an  admission  made  by  the 
other,  is  a  preliminary  question  for  the  court.8  But  the  court 
may,  in  its  discretion,  allow  the  admission  to  be  proved  first. 

An  entry  in  the  firm  books  during  the  existence  of  the  firm  and 
relating  to  its  affairs  is  competent  evidence  against  all  the  part- 
ners, even  though  the  books  were  kept  exclusively  by  one  mem- 
ber or  by  an  agent,  and  the  partner  sought  to  be  charged  by  the 
entry  was  not  in  fact  privy  to  it.9 

33.  Acts,  Admissions,  &c.,  after  dissolution.'] — The  collection 
of  debts  and  the  disposal  of  assets,  by  either  general  partner, 
though  done  after  dissolution,  are  presumptively  valid  as  against 
the  others,  in  favor  of  third  persons; 10  and  this  presumption  can- 
not be  rebutted  by  merely  showing  that  the  others  forbade  the 


1  Any  general  partner,  though  dormant  or  silent.  Kaskaskia  Bridge  Co.  v. 
Shannon,  1  Gilm.  (111.)  15,  25;  1  Greenl.  Ev.  13th  ed.  218.  And  though  he  was 
not  served  with  process,  and  has  been  therefore  dismissed,  (Kady  v.  Kyle,  47  Mo. 
346);  or  was  never  joined.  Rose.  N.  P.  75.  Evidence  which  shows  that  the  declar- 
ant was  either  the  partner  or  the  agent  may  be  enough  to  render  his  declaration 
competent,  though  it  be  uncertain  which  he  was.  Chamberlain  v.  Fobes,  3  Supm. 
Ct  (T.  <fe  C.)  277. 

*  See  next  paragraph.     Am.  Iron  Mountain  Co.  v.  Evans,  27  Mo.  652. 

3  But  not  otherwise.     Hahn  v.  St.  Clair  Savings,  <fec.  Co.  50  m.  456.     The  rule  is 
the  same  in  an  action  of  tort.     Fail  v.  McArthur,  31  Ala.  27. 

4  1  Greenl.  Ev.  217,  n. 

'  Pollock's  Dig.  L.  of  P.  45,  art.  21 ;  Faler  v.  Jordan,  44  Miss.  283.  The  general 
principle  is  more  fully  stated  at  p.  187  of  this  vol. 

6  Toby  v.  Brigham,  9  Humph.  760.  But  compare  Rogers  v.  Batchelor,  12  Pet. 
221,  232,  where  it  was  held  that  a  letter  written  by  a  partner  in  his  own  name,  not 
in  that  of  the  firm,  and  relating  partly  to  his  private  affairs,  is  not  presumably  with- 
in the  knowledge  of  his  copartners,  and  therefore  statements  in  it  referring  to  firm 
affairs  cannot  bind  them. 

1  Grant  v.  Jackson,  Peake's  Cas.  203. 

8  Harris  v.  Wilson,  7  Wend.  57;    McCutchin  v.  Bankston,  2  Geo.  241.     Compare 
p.  191  of  this  vol.  and  note  7. 

9  Allen  v.  Coit,  6  Hill,  318 ;  "Walden  v.  Sherburne,  15  Johns.  409. 

10  Bobbins  y.  Fuller,  24  N.  Y.  670. 


ACTIONS  AGAINST  PARTNERS.  219 

act,1  or  that  the  debts  had  been  paid.2  It  may,  however,  be  re- 
butted by  showing  that,  to  the  knowledge  of  the  party  dealing, 
the  partners  had  conferred  the  special  power  of  liquidation  upon 
another  of  their  number.3 

In  other  respects  than  as  to  the  collection  of  debts  and  the 
disposal  of  assets,  the  agency  of  partners  for  each  other  terminates 
with  dissolution  ; 4  and  hence  no  executory  contract  or  promise 
made  or  delivered 5  by  one  after  dissolution  binds  the  others,  un- 
less there  is  evidence  from  which  special  authority6  or  rati- 
fication may  be  inferred. 

It  is  the  better  opinion  that  the  same  principle  applies  to  ad- 
missions and  declarations  ;  and  that  no  such  concession  made  by 
a  partner,  after  dissolution,  even  if  he  were  authorized  by  the 
other  members  of  the  dissolved  firm  to  adjust  its  business,7  is  com- 
petent evidence  against  a  copartner,  although  relating  to  a  con- 
tract which  arose  during  the  partnership.8  In  England,9  and  in 
some  of  our  States,10  the  contrary  rule  is  followed.  Upon  either 
view,  however,  the  admission  is  competent  against  the  one  who 
made  it.11 

34:.  Notice,  tender  and  demand  ~\ — When  it  is  necessary  to 
prove  that  a  firm  had  notice  from  a  third  person  in  a  matter 
within  the  scope  of  the  partnership  business,  notice  to  or  knowl- 
edge on  the  part  of  any  acting  member  is  prima  facie  sufficient;12 
and  if  two  firms  have  a  common  partner,  notice  which  is  iiuput- 


1  Gillilan  v.  Sun  Mut.  Ins.  Co.  41  N.  Y.  376. 

*  Robbins  v.  Fuller,  24  N.  Y.  570. 

8  Robbins  v.  Fuller  (above). 

4  Thompson  v.  Bowman,  6  Wall.  316.  Unless  the  dissolution  was  unknown,  <fec. 
See  paragraphs  40-42. 

6  For  legal  purposes  negotiable  paper  is  deemed  to  have  been  signed  at  the  time 
the  partner  delivers  it  to  the  third  person.  Gale  v.  Miller,  54  N.  Y.  538. 

6  Graves  v.  Merry,  6  Cow.  701. 

7  Hackley  v.  Patrick,  3  Johns.  536.     Contra,  so  far  aa  to  admit  evidence  of  his 
liquidating  the  amount  of  a  claim,  the  existence  of  which  was  proved  by  other  evi- 
dence,    lie  v.  Ingraham,  5  Gray,  106;    s.  p.  Feigley  v.  Whitaker,  22  Ohio  tet  606, 
s.  c.  10  Am.  R.  778. 

8  Baker  v.  Stackpoole,  9  Cow.  420 ;   Thompson  v.  Bowman  (above) ;    Miller  v. 
Neimerick,  19111.  172;    Hamilton  v.   Summers,  12  B.  Monr.  (Ky.)ll;    Flowers  v. 
Helm,  29  Mo.  324.     There  is  no  distinction,  under  this  rule,  between  the  admission 
of  an  account  and  the  admission  of  a  fact.     Baker  v.  Stackpoole  (above) ;  nor  be- 
tween the  power  to  acknowledge  a  debt  barred  by  the  statute,  and  to  make  a  n^w 
contract.     Van  Keuren  v.  Parmelee,  2  N.  Y.  523;  and  see  \Vinchell  v.  Hicks,  18  N. 
Y.  558.     The  death  of  the  declarant  held  not  to  alter  the  case.     Hamiltou  v.  Sum- 
mers, 12B.  Monr.  (Ky.)  11. 

9  Botli  at  common  law  (Whitcomb  v.  Whiting,  Doug.  652,  s.  c.  1  Sm.  L.  Cas.  703) 
and  in  equity.     I'ritchard  v.  Draper,  1  Russ.  <fe  M.  191. 

10  Merritt  v.  Day,  9  Vroom,  32,  s.  o.  20  Am.  R.  362;    Beardsley  v.  Hall,  36  Conn. 
270,  s.  c.  4  Am.  R.  74,  and  cases  cited;    1  Greenl.  Ev.  by  REDFIELD,  133,  n.     Aa  to 
the  principle  involved  in  this  controversy,  see  p.  189  of  this  vol. 

11  Hanna  v.  McKibben,  10  Ind.  547. 

13  1  Wood's  Colly.  672,  715;  Williams  v.  Roberts,  6  Cold.  (Tenn.)  493.  That 
knowledge  of  a  trustee  is  sufficient  to  charge  with  notice  a  firm  nf  which  he  i-.  a 
member,  though  not  aa  active  member,  see  Weetjun  v.  St.  Paul  <fc  1'acinc  R.  R.  Co.  4 
Hun,  629. 


220  ACTIONS  AGAINST  PARTNERS. 

able  to  one  firm  will  sustain  a  finding  of  notice  to  the  other. 
Upon  the  same  principle  a  demand  on  or  by  one  member,  on  be- 
half of  the  firm,  is  a  demand  on  or  by  the  firm  ;*  and  so  of  a 
tender  ; 2  and  an  allegation  referring  to  all  the  defendants  admits 
the  evidence  as  to  the  one.3 

Dissolution  does  not  change  the  rights  and  obligations  under 
existing  contracts ;  so  that,  notwithstanding  dissolution,  notice  to 
or  demand  on  one  partner  is  sufficient  against  the  firm.4 

35.  Defendant^  evidence  to  disprove  partnership."] — It  is  rare- 
ly enough  to  prove  that  defendants  were  not  actually  partners  as 
between  themselves ;  but  this  fact  is  relevant,  and  is  always  com- 
petent in  defendant's  favor,  unless  plaintiff  has  given  evidence 
sufficient  to  entitle  him  to  an  instruction  that,  as  matter  of  law, 
the  defendant  is  liable  as  if  a  partner, — as,  for  instance,  where  a 
community  of  profits,  or  a  representation  raising  an  estoppel,  is 
proved.    If  the  plaintiff's  evidence  on  the  point  is  circumstantial, 
or  only  sufficient  to  go  to  the  jury,  then  defendant  is  entitled  to 
give  evidence,  even  by  his  own  testimony,5  explaining  his  intent 
in  the  equivocal  acts  alleged,  and  corroborating  his  denials  of  the 
admissions  charged ; 6  or  even  explaining  his  admissions.7    But 
his  testimony  that  he  was  not  a  partner  does  not  countervail 
facts  from  which  the  law  deduces  the  liability  of  a  partner.8 

36.  Proving  a  limited  partnership.'] — To  secure  the  exemption 
extended  by  law  to  the  special  partner  in  a  limited  partnership 
under  the  statute,  it  is  sufficient  to  show  a  substantial  compli- 
ance with  the   statute  preliminaries   in  the  formation  of    the 
partnership.9      The  fact   that    the  partnership   was   a   foreign 
limited  partnership  may  be  proved,  with   the  foreign   law,  in 
exoneration  of  the  special  partner.10    Where  a  violation  of  the 
statute  in  the  formation  is  shown,  it  need  not  be  shown  to  have 
been  intentional.     Where,  however,  the   limited  partnership  is 


1  Band  V.  Walker,  12  Barb.  298,  s.  c.  1  Code  R.  N.  S.  329. 
8  1  Wood's  Coll.  665,  §  414. 

3  See  Geissler  v.  Acosta,  9  N.  T.  227. 

4  Hubbard  v.  Matthews,  64  N.  Y.  43,  50,  and  cases  cited. 

5  One  who  has  made  default  and  suffered  judgment  may  nevertheless  testify  in 
favor  of  the  others  that  they  were  not  partners  with  him.     Danforth  v.  Carter,  4 
Iowa,  230,  236. 

6  Tracey  v.  McManus,  67  N.  T.  257.    New  member  may  defend  on  the  ground  of 
fraud  inducing  him  to  assume  the   debts.      Hinman  v.  Bowen,  3  Hun,  192,  s.  c.  6 
Supm.  Ct.  (T.  &  C.)  234.     To  show  that  one  acting  in  the  business  was  not  a  partner 
but  a  clerk,  the  contemporaneous  declarations  of  admitted  partners,  made  before 
difficulty  arose,  to  inform  dealers  and  the   public,  may  be   proved.     Danforth  v. 
Carter,  4  Iowa,  230,  235.     Contra,  Tomkins  v.  Reynolds,  17  Ala.  109,  118. 

7  Story  on  Partn.  263  §  146.     As,  for  instance,  where  they  were  made  under  ad- 
vice of  counsel.      Edgar  v.McArn,  22  Ala.  796,  812.     The  contrary  held  of  the  ad- 
mission resulting  from  a  judgment  against  them  as  copartners.     Cragin  v.  Carleton, 
21  Me.  493. 

8  Rebould  v.  Chalker,  27  Conn.  114,  133. 
•  Van  Ingen  v.  Whitman,  62  N.  Y.  513. 

10  King  v.  Sarria,  69  N.  Y.  24,  affi'g  7  Hun,  167;  and  see  parargaph  8. 


ACTIONS  AGAINST  PARTNERS.  221 

shown  to  have  been  once  regularly  formed,  evidence  that  the 
general  partners  departed  from  the  statute,  is  not  alone  enough 
to  charge  a  special  partner  who  was  not  cognizant  of  the  facts/ 

All  persons  dealing  with  a  limited  partnership  are  chargeable 
with  notice  of  the  scope  of  the  partnership  business,  as  specified 
in  the  articles  of  copartnership,  if  the  articles  are  duly  filed  and 
published  pursuant  to  a  requirement  of  law ;  and  the  limited 
partner  cannot  be  charged  as  a  general  partner  by  evidence  of 
departure  from  the  articles,  unknown  to  him.2 

37.  Matter  in  abatement!} — The  omission  to  join  a  copartner 
as  a  defendant  is  not  available,  unless  it  appears  by  the  plead- 
ings ;  and  an  answer  alleging  a  defect  in  this  respect,  must  state 
precisely  and  truly  who  were  the  parties.  An  allegation  that  A. 
and  B.  were  partners  with  defendant  and  should  have  been  joined, 
is  not  sufficient  to  admit  proof  that  only  A.  was  a  partner.5  It  is 
not  enough  to  show  that  the  one  not  joined  was,  in  fact,  a  partner 
as  between  the  defendants,  nor  that  he  participated  in  an  advisory 
manner  in  regard  to  the  conduct  of  the  business,  nor  even  that 
his  name  was  on  their  cards,  if  it  is  not  shown  that  the  fact  was 
generally  known,  or  known  to  plaintiffs,  and  if  the  name  and 
the  apparent  mode  of  transacting  business  indicated  that 
others  alone  composed  the  firm.4  In  such  a  case,  the  objec- 
tion is  not  sustained  without  proof  that  plaintiffs  knew  he  was 
a  partner,  at  the  time  of  contract.5  The  fact  that  after  the 
transaction  and  before  suit  brought,  plaintiff  became  aware 
that  the  omitted  person  was  a  partner,  is  not  enough.6  On  such  a 
plea,  the  defendants  may  be  held  to  strict  proof,7  and  should  pro- 
duce their  articles,  if  any.8  To  support  such  a  plea,  the  fact  that 
defendants  signed  a  joint  note,  is  not  alone  evidence  of  a  part- 
nership between  them.9  Neither  the  declarations  of  the  third 
persons  nor  of  the  defendants  are  admissible  in  defendants' 
favor,10  unless  in  some  way  brought  home  to  plaintiff's  knowledge. 
And  upon  the  same  principle,  a  judgment  in  an  action  by  a 
stranger  against  such  third  person  holding  him  to  be  a  partner, 
is  not  competent.11 


1  Van  Ingen  v.  Whitman  (above.) 
8  Taylor  v.  Rasch,  11  Bankr.  Reg.  91. 

*  Wiegand  v.  Sichel,  4  Abb.  Ct.  App.  Dec.  592. 
4  North  v.  Bloss,  30  N.  Y.  380. 

*  N.  Y.  Dry  Dock  Co.  v.  Treadwell,  19  Wend.  525 ;  B.  P.  1845,  Peck  v.  Cowing,  1 
Den.  222. 

6  North  v.  Bloss  (above). 

7  See  paragraph  2. 

8  See  Bonnaffe  v.  Fenner,  6  Smedes  <fe  M.  21T ;   Kayser  v.  Sichel,  34  Barb.   84 ; 
affi'd  without  passing  on  this  point,  in  4  Abb.  Ct.  App.  Cas.  592. 

*  Hopkins  v.  Smith,  11  Johns.  161 

10  Sweeting  v.  Turner,  10  Johns.  216;    Nudd  v.  Burrows,  91  U.  S.  (1  Otto),  438; 
contra,  see  14  N.  H.  146,  and  cases  cited. 

11  De  Graffv.  Hovey,  16  Abb.  Pr.  120.     In  contradiction  or  impeachment  of  a 
witness  who  testifies  that  he  was  n  partner,  his  schedules  in  insolvency  containing 
no  mention  of  hia  interest,  were  held  admissible.     Brigham  v.  Clark,  loO  Mass.  430. 


222  ACTIONS  AGAINST  PARTNERS. 

38.  Evidence  of  known  want  of  authority."] — If  the  public 
have  the  usual  means  of  knowledge  given  them,  and  no  acts  have 
been  done  or  suffered  by  the  partnership  to  mislead  them,  the 
presumption  of  law  is  that  those  dealing  with  a  partner,  knew 
the  extent  of  the  partnership.1    Evidence  that  the  articles  con- 
tained restrictions  which  were  known  to  the  party  dealing  with 
a  partner  is  competent,  although  the  transaction  was  within  the 
general  scope  of  the  business.2    If  the  answer  contains  an  admis- 
sion of  the  nrm  contract,  a  denial  of  consideration  does  not  avail  to 
admit  the  defense  of  want  of  authority  or  fraudulent  diversion.? 

39.  Transactions  in  the  interest  of  one  partner. ~\ — Evidence 
that  a  transaction  with  a  partner  was  in  a  matter  not  within  the 
scope  of  the  business,  raises  a  presumption  of  law,  in  the  absence 
of   countervailing  circumstances,  that   the  dealing  was   on  his 
private  account,  notwithstanding  the  firm  name  was  used.4    But 
if,  on  the  other  hand,  the  subject-matter  is  consistent  with  the 
partnership  business,  the  burden  is  on  the  firm  to  show  that  the 
contract  was  out  of  the  regular  course  of  their  dealing,5  unless 
the  contract  was  in  writing,  and  in  the  individual  name  of  a 
partner.     In  general,  if  one  takes  from  a  partner  in  discharge  of 
his  separate  debt,  the  obligation  or  funds  of  the  firm,  it  is  not 
necessary  for  the  other  partners  to  bring  home  to  him  conscious 
knowledge  that  this  was  a  misapplication ;    the  nature  of  the 
transaction  is  enough  to  charge  him  with  the  duty  of  inquiry.6 
The  burden  is  on  the  dealer  with  the  partner,  to  show  assent  of 
the  other  partner  or  circumstances  from  which  assent  may  be  in- 
ferred ; 7  knowledge  alone  is  not  necessarily  enough. 8 

40.  Burden  of  proving^  dissolution  and  notice.'] — One  who 
defends  on  the  ground  of  dissolution,  has  the  burden  of  proof  of 
dissolution  ;  and  also  of  notice,  if  the  other  party  had  knowledge 
of  the  partnership  ; 9   except  that  if  the  dissolution  was  caused 
by  war,  death  or  bankruptcy,  there  need  be  no  evidence  of  no- 
tice.10   If  the  retiring  partner  was  a  dormant  partner,  unknown 


1  3  Kent's  Com.  43. 

2  Dow  v.  Saward,  12  N.  H.  275  ;  Chapman  v.  Devereux,  32  Vt.  619,  623. 

3  Harger  v.  Worrall,  69  N.  Y.  370,  378. 

4  3  Kent's  Com.  43  ;  approved  in  Story  on  Partn.  241,  §  133,  n. 
6  Id. 

6  Story  on  Partn.  241,  §  133  ;  2  Greenl.  Ev.  446,  §  480;  Rogers  v.  Batchelor,  12 
Pet.  229  ;  compare  Purdy  v.  Powers,  6  Barr,  492.  A  mortgagee  of  property  stand- 
ing in  the  name  of  one  partner,  has,  from  the  joint  possession  of  it  by  the  firm,  con- 
structive notice  of  their  title  and  relative  interests.  Cavander  v.  Bulteel,  L.  R.  9 
Ch.  App.  79,  s.  c.  8  Moa^s  Eng.  743. 

*  Dob  v.  Halsey,  16  Johns.  34. 

8  Todd  v.-.Lorah,  75  Penn.  St.  166. 

9  See  Story  on  Partn.  286,  §  160 ;    Wade  on  Notice,  234,  §  630 ;    Carmichael  v. 
Green,  55  Geo.  116.     Compare  Goddard  v.  Pratt,  16  Pick.  412,  429. 

10  Griswold  v.  Waddington,  16  Johns.  438,  affi'g  15  Id.  57  ;  Seaman  v.  Wadding, 
ton,  16  Id.  510;  Dickinson  v.  Dickinson,  25  Gratt.  (Va.)  321.  Civil  war  does  not, 
ipso  facto,  absolve,  except  from  the  time  of  unequivocal  public  notice  of  the  illegality 


ACTIONS  AGAINST  PARTNERS.  223 

to  plaintiff,  and  his  name  was  never  used,  evidence  that  he 
ceased  to  be  a  partner  before  the  transaction  is  enough  without 
evidence  of  notice.1  If  he  was  known  as  a  partner  to  the 
person  dealing  with  the  firm,  some  evidence  of  notice  of  with- 
drawal is  necessary.2 

41.  Mode  of  proving  dissolution.'] — A  dissolution  of  partner- 
ship or  withdrawal  of   a  partner,  m£y  be  proved  by  parol  or 
partly  by  parol.8 

42.  —  notice."] — Against  those  who  at  or  before  the  time  of 
their  transaction  did  not  know  of  the  existence  of  the  partner- 
ship or  the  membership  of  the   retiring  partner,  evidence  of 
notice  of  dissolution  or  withdrawal  is  not  necessary.4 

Against  those  who  had  previous  knowledge  of  the  partner- 
ship,5 and  claim  that  they  were  giving  credit  to  all  the  defend- 
ants, but  who  had  not  previously  given  them  credit,6  there  must 
be  either  evidence  of  reasonable  publicity  by  advertisement  in  a 
newspaper 7  (and  this  is  as  matter  of  law  sufficient),8  or  of  such 
circulation  of  the  information,  as  to  fulfill  the  duty  of  the 
retiring  partners  to  put  the  public  on  guard.9  Evidence  tending 
to  show  a  public  and  notorious  disavowal  of  further  responsibil- 
ity, though  without  newspaper  advertisement,  is  competent, — 
such  as  the  giving  of  actual  notice  to  all  who  had  previously 
dealt,  the  proper  change  of  the  firm  name,  the  general  notoriety 
of  the  change  throughout  the  trade,  and  the  fact  that  the  firm 
had  never  transacted  business  in  the  place  where  the  plaintiffs 
bought  their  paper.10  It  is  not  a  question  of  actual  notice,  but  of 
the  reasonable  fulfillment  of  duty  and  diligence  in  the  public 
announcement  of  the  change.11  Where  the  creditor  testifies  that 
he  had  no  notice,  the  jury  may  still  infer  actual  notice  from 
circumstances  of  general  publicity.12 


of  intercourse.    Matthews  v.  McStea,  91  U.  S.  (1  Otto),  7,  affi'g  60  N.  Y.  166,  3 
Daly,  349. 

1  Kelley  v.  Horlburt,  6  Cow.  634 ;  Davis  v.  Allen,  3  N.  Y.  168 ;  Phillips  v.  Nash, 
47  Geo.  218. 

2  Park  v.  Wooten's  Ex'r,  36  Ala.  242. 

3  Emerson  v.  Parsons,  46  N.  Y.  560,  affi'g  2  Sweeny,  447. 

4  Paragraph  40  and  note  ;  Wade  on  Notice,  215,  §  490. 

6  The  general  notoriety  of  the  existence  of  the  firm,  does  not  raise  a  presump- 
tion that  the  party  dealing  had  knowledge  of  its  existence.  Wade  on  Notice,  215, 
§490. 

6  The  fact  of  having  had  cash  dealings  does  not  render  evidence  of  actual  notice 
necessary.     Clapp  v.  Rogers,  12  N.  Y.  283,  affi'g  1  E.  D.  Smith,  549. 

7  City  Bank  of  Brooklyn  v.  McChesney,  20  N.  Y.  240  ;  s.  p.  City  Bank  of  Brook- 
lyn v.  Dearborn,  Id.  244. 

8  Lansing  v.  Gaine,  2  Johns.  800. 

9  Wardwell  v.  Haight,  2  Barb.  549. 

10  Lovejoy  v.  Spafford,  93  U.  S.  (3  Otto),  441;    compare  Pitcher  v,  Barnes,  17 
Pick.  364;  Wade  on  Notice,  226,  §§  513,  519. 

11  Lovejoy  v.  Spafford,  (above.) 
ls  Id. 


224  ACTIONS  BY  AND  AGAINST  SURVIVOR. 

Against  those  who  had  given  credit 1  to  the  firm  in  previous 
dealing,  there  must  be  evidence  of  actual  notice,2  or  of  circum- 
stances from  which  it  may  be  distinctly  inferred.8  Notice  to  an 
agent  or  servant  whose  business  does  not  extend  to  the  receipt  of 
such  communications  is  not  enough,  without  evidence  that  it  was 
communicated  by  him.4  Proof  that  written  notice  was  properly 
mailed  to  the  person  sought  to  be  charged  with  notice,  is  not 
enough,  even  though  accompanied  by  proof  that  the  letter  was 
not  returned,5  if  the  actual  receipt  be  disproved  ;6  but  with  slight 
corroborative  evidence  of  actual  receipt  or  knowledge,  it  may  be 
enough  to  go  to  the  jury.7  Publication  of  notice  in  a  newspaper 
is  not  alone  enough,8  nor  is  it  made  sufficient  as  matter  of  law  by 
showing  that  the  party  sought  to  be  charged  took  the  paper  or 
habitually  read  it,9  but  this  is  enough  to  go  to  the  jury  if  accom- 
panied by  the  slightest  evidence  of  knowledge.10  Information 
actually  brought  to  the  attention  of  the  creditor  is  enough :  if  by 
published  notice,  it  is  not  essential  that  the  notice  be  signed  by 
the  partners.11  A  change  in  the  firm  name,  made  known  to  the 
party,  though  not  conclusive,  is  sufficient  evidence  of  the  disso- 
lution or  withdrawal,  if  the  change  itself  is  significant  of  the 
retirement  of  the  member  in  question ;  n  otherwise  not.13 

III.  RULES  PECULIAR  TO  SURVIVING  PARTNERS. 

43.  Actions  T)y  survivor. 1 — At  common  law,  where  it  was 
sufficient  to  allege  indebtedness,  a  surviving  partner  could  prove 
a  debt  contracted  to  the  firm,  and  the  death  and  survivorship, 
under  a  declaration  alleging  indebtedness  to  himself,  without 


1  Those  who  deal  on  credit,  even  for  small  sums,  and  on  a  credit  not  defined  in 
point  of  time,  are  entitled  to  notice.  Clapp  v.  Rogers,  12  N.  Y.  285,  affi'g  1  E.  D. 
Smith,  549. 

s  Deering  v.  Flanders,  49  N.  H.  225.    , 

3  Austin  v.  Holland,  69  N.  Y.  571,  affi'g  2  Supm.  Ct.  (T.  &  C.)  253.     It  seems 
that  the  fact  that  the  former  partners  carried  on  business  separately,  after  dissolu- 
tion, for  years,  at  different  places  in  the  same  town  with  their  former  dealers,  would 
sustain  a  finding  of  notice  to  the  latter.     Per  BRONSON,  J.,  Coddington  v.  Hunt,  6 
Hill,  595. 

4  Stewart  v.  Sonneborn,  49  Ala.  178:  Wade  on  Notice,  220,  §  502. 
6  Kenney  v.  Atwater,  77  Penn.  St.  34 ;  Wade  on  Notice,  220,  §  501. 

6  Austin  v.  Holland,  69  N.  Y.  571,  affi'g  2  Supm.  Ct.  (T.  &  C.)  253 ;  where  it  is 
said  that  mailing  is  presumptive  evidence.    To  the  contrary,  see  Kenny  v.  Atwater 
(above). 

7  Kenny  v.  Atwater  (above). 

8  Bank  of  the  Commonwealth  v.  Mudgett,  44  N.  Y.  614.     Especially  if  the  party 
testifies  that  he  had  no  actual  notice.     Howell  v.  Adams,  68  N.  Y.  315,  affi'g  1 
Supm.  Ct.  (T.  &  C.\  425;   Austin  v.  Holland  (above). 

9  Vernon  v.  Manhattan  Bank,  22  Wend.  183,  affi'g  17  Id.  524. 

10  Wade  on  Notice,  221,  §§  504,  507;  1  Whart.  Ev.  641,  §  675. 

11  Young  v.  Tibbetts,  32  Wise.  79;  s.  P.  Robinson  v.  \Vorden,  33  Mich.  816. 

12  Newcomet  v.  Bretzman,  69  Penn.  St.  185.     A  change  of  partners  in  a  banking 
house  is  sufficiently  notified  to  the  customers  of  the  house,  by  a  change  in  the 
printed  checks.     Barfoot  v.  Goodall,  3  Camp.  146. 

13  American  Linen  Thread  Co.  v.  Wortendyke,  24  N.  Y.  550. 


ACTIONS  BY  AND  AGAINST  SURVIVOR.  225 

noticing  the  partnership,  and  the  death  and  survivorship.1  So 
far  as  pleading  in  the  same  general  form,  by  alleging  defendant 
to  *be  indebted  to  plaintiff  on  an  account,  &c.,  is  sanctioned 
under  the  new  procedure,2  the  like  evidence  is  equally  admissi- 
ble now ;  but  if  the  complaint  alleges  a  contract  with  plaintiff, 
or  a  consideration  proceeding  from  him,  proof  of  one  with  or 
from  the  firm,  is  a  variance,3  the  effect  of  which  depends  on 
whether  defendant  is  prejudiced.  An  action  to  recover  posses- 
sion of  partnership  property  may  likewise  be  sustained  in  the  name 
of  the  survivor  alone/  Evidence  tending  to  show  the  place  of 
residence  and  death  of  one  partner,  with  proof  of  the  death  at 
the  same  place  of  a  person  bearing  the  same  name,  establishes, 
prim  a  facie,  the  title  of  the  other  partner  as  survivor.5  The 
admissions  and  declarations  of  the  deceased  are  not  competent  in 
plaintiff's  favor  to  prove  the  existence  and  title  of  the  partner- 
ship, unless  defendant  is  shown  to  have  been  in  privity  with 
him.6  The  admissions  and  declarations  of  the  surviving  partner 
to  the  effect  that  he  had  no  equity  or  interest  remaining,  but 
that  the  personal  representatives  were  entitled,  are  not  relevant, 
for  the  legal  title  is  in  him,  notwithstanding  the  equities  of  the 
parties.7 

4A.  Actions  Against  /Survivor.'] — The  same  principles  apply 
in  an  action  against  a  survivor.  Under  an  allegation  of  indebted- 
ness of  the  survivor,  evidence  of  a  contract  of  the  firm,  and  of 
death  and  survivorship  may  be  proved,8  but  if  the  joint  contract, 
&c.,  are  alleged,  they  should  be  proved ; 9  both  rules  being  sub- 
ject to  the  present  criterion  as  to  variance. 

45.  Actions  against  Representatives  of  Deceased,  Partner.] — 
To  maintain  an  action  against  the  executor  or  administrator  of 
the  deceased  partner,  it  is  enough  to  show  that  the  survivor  is 
wholly  insolvent.  This  may  be  shown  by  any  common  law  proof ; 


1  Whether  the  contract  was  with  the  firm  (Grant  v.  Shorter,  1  Wend.  161);    or 
with  the  survivor,  on  a  consideration  proceeding  from  the  firm.    Holmes  v.  D'Camp, 
1  Johns.  34. 

2  Allen  v.  Patterson,  7  N.  Y.  476.  v 
'  See  Ditchbum  v.  Sprachlin,  5  Esp.  31 ;    Holmes  v.  D'Camp  (above) ;    Hess  v. 

Fox,  10  Wend.  436.     Unless  the  firm  name  and  the  survivor's  name  are  the  same. 
See  Bank  of  Cooperstown  v.  Woods,  28  N.  Y.  545. 
4  Murray  v.  Mumford,  6  Cow.  443. 

6  Daby  v.  Ericsson,  45  N.  Y.  786. 

8  Such  evidence  would  be  competent  against  the  administrator  of  the  deceased, 
but  is  not  as  against  a  stranger,  even  on  an  isene  raised  by  him  that  the  title  is  in 
the  administrator.  Brown  v.  Mailler,  12  N.  Y.  118;  s.  p.  Hamilton  v.  Summers,  12 
B.  MOD.  (Ky.)  11.  Entries  by  partner  since  deceased,  proven  to  be  in  his  handwrit- 
ing and  made  in  the  regular  course  of  business,  are  presumptive  proof.  Thomson  v. 
Porter,  4  Strobh.  Eq.  64. 

7  Daby  v.  Ericsson,  45  N.  Y.  786.     Receipt  by  agent  of  new  firm  not  expressed 
to  be  for  survivors,  held  not  competent.     Adams  v.  Ward,  26  Ark.  135. 

8  Goelet  v.  McKinstry,  1  Johns.  Cas.  405. 

9  KELSON,  J.,  Mott  v.  Petrie,  15  Wend.  318,  and  cases  cited. 

15 


226  ACTIONS  BETWEEN  PARTNERS. 

exhaustion  of  the  remedy  at  law  is  not  essential ; *  but,  on  the 
other  hand,  evidence  that  the  remedy  at  law  was  exhausted  by 
execution  returned  unsatisfied  is  enough,  although  it  be  shown 
that  the  survivor  has  available  property  which  was  not  discovered 
by  the  sheriff.2 

IY.  ACTIONS  BETWEEN  PARTNERS. 

46.  Allegation  and  burden  of  proof  of  partner  ship. ~\ — In  an 
action  for  an  accounting,  the  allegation  of  partnership  is  material, 
and  plaintiff  cannot  recover  on  proof  that  he  is  a  creditor,3  not 
even  on  proof  of  a  loan  payable  with  share  of  profits.4    And  if 
he  could,  usury,  though  not  pleaded,  would  be  available  as  a  de- 
fense.5   If  the  existence  of  the  partnership  is  denied  in  the  an- 
swer, the  burden  of  proof  is  on  the  plaintiif.6 

47.  Proof  of  partnership.] — Where  the  interest  of  no  third 
person  is  involved,  stronger  proof  is  required  to  establish  the 
partnership,  than  when  the  question  arises  as  between  the  alleged 
partners  and  third  persons.11    If  the  agreement  was  embodied  by 
the  parties  in  a  writing,  it  must  be  produced  or  accounted  for.8 
If  not  written,  it  may  be  proved  by  parol,9  notwithstanding  it 
was  to  continue  for  more  than  a  year;10  and  for  this  purpose 
the  conduct  and  declarations  of   the  parties,11  and  the   entries 
in  the  firm  books,12  are  competent,  subject  to  the  general  qual- 
ification that  the  concession  of  one  is  not  evidence  against  an- 
other.13   The  question  of  partnership  or  not,  is  to  be  determined 


I  Van  Riper  v.  Poppenhausen,  43  N.  Y.  68. 

9  Pope  v.  Cole,  55  N.  Y.  124,  affi'g  64  Barb.  406. 
"Salterv.  Ham,  31  N.  Y.  321. 

4  Arnold  v.  Angell,  62  N.  Y.  508,  rev'g  38  Super.  Ct.  (J.  &  S.)  27.  Compare 
Marston  v.  Gould,  69  N.  Y.  220. 

6  Arnold  v.  Angell  (above). 

«  Gatewood  v.  Bolton,  48  Mo.  78. 

'  Chisholm  v.  Cowles,  42  Ala.  179. 

8  The  attorney  who  drew  the  articles  is  privileged,  if  he  acted  for  the  party  claim- 
ing the  benefit  of  the  privilege,  and  not  for  the  adverse  party  (see  Yates  v.  Olmsteil, 
56  N.  Y.  632,  rev'g  65  Barb.  43);  if  he  acted  for  both,  he  is  not  (see  Whiting  v.  Bar- 
ney, 30  N.  Y.  330). 

If  deceased,  his  contemporaneous  entries  in  his  accounts,  and  his  drafts  of  the 
articles  and  of  other  papers  connected  therewith,  are  competent,  for  the  purpose  of 
corroborating  other  evidence  as  to  the  date  and  contents  of  the  lost  articles. 
Moffat  v.  Moffat,  10  Bosw.  468,  493. 

The  intentional  destruction  of  the  articles  by  the  interested  party,  if  unexplained, 
is  competent  to  go  to  the  jury  against  him  in  corroboration  of  evidence  of  their  con- 
tents; but  the  fact  of  spoliation  does  not  alone  raise  a  legal  presumption  that  their 
contents  were  as  alleged  by  the  other  party.  Id.  601. 

'  Randel  v.  Yates,  48  Miss.  685.  As  to  the  case  of  partnership  in  lands,  compare 
Fairchild  v.  Fairchild,  64  N.  Y.  471,  affi'g  6  Hun,  407 ;  Levy  v.  Brush,  45  K  Y.  589, 
rev'g  8  Abb.  Pr.  N.  S.  418,  s.  o.  1  Sweeny,  653;  Smith  v.  Burnham,  3  Sumn.  435. 

10  Smith  v.  Tarleton,  2  Barb.  Ch.  336. 

II  Shelmire's  Appeal,  70  Pa.  St.  281. 
"  Frick  v.  Barbour,  64  Pa.  St.  120. 

13  See  paragraphs  11  and  14,  where  the  principle  is  more  fully  stated. 


ACTIONS  BETWEEN  PARTNERS.  227 

chiefly  by  ascertaining  what  were  the  intentions  of  the  parties, 
as  manifested  in  the  transactions  shown.1  Mutual  intention 
and  assent  to  the  relation  is  enough ;  but  the  absence  of  them 
does  not  necessarily  disprove  partnership,  because  the  contract 
that  was  entered  into  may  conclusively  manifest  an  intent  to 
create  the  relation,  although  they  were  at  the  time  in  fact  un- 
aware of  the  legal  effect.2  Hence,  the  facts  being  proved  on  un- 
contradicted  testimony,  the  question  is  one  of  law  for  the  court.8 
The  intention  of  the  parties,  together  with  the  facts,  must,  as 
between  themselves,  be  decisive  of  the  question  as  to  the  exist- 
ence of  the  partnership  and  as  to  its  extent.  The  parties  should 
not  be  permitted  to  testify  as  to  whether  they  regarded  each 
other  as  partners,  for  the  reason  that  the  construction  of  con- 
tracts, whether  written  or  verbal,  is  for  the  court,  and  cannot 
be  expounded  by  witnesses.  Parties  may  become  partners  with- 
out their  knowing  it,  the  relation  resulting  from  the  terms  they 
have  used  in  their  contract,  or  from  the  nature  of  the  undertak- 
ing ;  and  the  testimony  of  either  as  to  whether  he  regarded  the 
other  as  his  partner  is  incompetent  as  against  the  other,4  though 
competent  against  himself. 

As  between  the  parties,  equity  allows  the  admission  of  parol 
evidence  of  the  course  and  business  of  the  partners,  either  by 
general  acquiescence  or  positive  acts  subsequent  to  the  articles, 
for  the  purpose  of  showing  the  practical  construction  they  have 
put  on  the  articles,  or  even  of  inferring  that  they  have  abandoned 
disused  provisions.3  On  the  continuance  of  the  business  by  the 
same  parties  after  the  expiration  of  the  time  fixed  in  the  articles, 
the  natural  presumption  is  that  the  old  articles  are  adopted,  ex- 
cept the  provisions  as  to  term  or  termination.6 

48.  Order  of  proof ,~\ — In  taking  the  final  accounts,  ascertain : 
1.  How  the  firm  stands  as  to  non-partners  (including  co-adven- 
turers) ;  2.  What  each  partner  is  entitled  to  charge  against  the 
other  for  everything  he  has  advanced  or  brought  in  as  a  partner- 
ship transaction,  and  also  to  charge  against  him  what  that  other 
has  not  brought  in  as  he  ought,  or  has  taken  out  in  excess  of 
what  he  ought ;  and  then,  3.  Apportion  between  them  the  profits 
to  be  divided  or  losses  to  be  made  good,  and  ascertain  what,  if 
anything,  any  partner  should  pay  to  another,  in  order  that  all 
cross  claims  may  be  settled.7  Partnership  transactions  are  not 


1  Salter  v.  Ham,  81  N.  Y.  321 ;  Phillips  v.  Phillips,  49  111.  437;  Groves  v.  Tallman, 
8  Nev.  178.  Agreement  to  execute  a  deed  of  partnership  held  to  constitute  a  part- 
nership as  between  the  parties.  Syres  v.  Syres,  L.  R.  1  App.  Cae.  174,  s.  c.  15  Moak*s 
Eng.  52. 

*  Lintner  v.  Milliken,  47  111.  178. 

*  Chisholm  v.  Cowles,  42  Ala.  179.     And  see  Bitter  v.  Rathman,  61  N.  Y.  512. 
4  Liutner  v.  Milliken  (above). 

6  Story  on  Partn.  826,  g  192. 

*  U.  S.  Bank  v.  Binney,  5  Mas.  176,  185  ;  Story  on  Partn.  332,  §  198. 

7  Neudecker  v.  Kohlberg,  3  Daly,  410 ;  West  v.  Skip,  1  Yes.  Sr.  242. 


228  ACTIONS  BETWEEN  PARTNERS. 

excluded  from  the  accounting  because  not  alleged  in  tlie  com- 
plaint.1 

49.  Evidence  of  firm  or  individual  transactions.'] — To  bring 
in  a  transaction  had  by  a  partner,  but  not  in  the  firm  name,  it  is  not 
enough  to  show  merely  that  it  was  in  violation  of  the  express  or 
implied  agreement  of  the  partner  to  devote  his  attention,  &c.,  to 
firm  business ; 2  but  it  is  enough  to  show  that  it  was  in  a  business 
in  rivalry  with  that  of  his  firm  ; 8  or  that  it  was  by  the  partner- 
ship relation  that  he  was  enabled  to  make  the  contract 4  (as,  for 
instance,  where  the  consideration  was  drawn  from,5  or  the  liability 
chargeable  upon  or  assumed  by,6  the  firm),  or  by  means  of  use  of  the 
firm  property  or  credit,7  or  that  he  made  a  secret  arrangement  for 
an  individual  profit  from  their  transactions,8  or  took  anyx  unfair 
advantage  of  his  connection  with  the  firm.     And  in  such  cases  it 
is  not  necessary  tp  prove  that  any  loss  accrued  to  the  firm.9    As- 
sent by  the  copartner  to  the  carrying  on  of  a  transaction  in  the 
name  of  the  other  is  not  necessarily  an  assent  to  the  claim  of  the 
other  to  the  profits  of  the  transaction.10 

50.  Title  to  real  property.'] — Heal  property  the  legal  title  of 
which  is  in  a  member,  is  presumed  to  belong  to  him,  although  occu- 
pied and  used  by  the  firm,  until  it  is  shown  to  be  partnership  prop- 
erty, either  by  evidence  that  there  was  an  agreement  to  that  effect, 
or  that  it  was  acquired  with  partnership  funds  for  partnership  pur- 
poses.11   For  this  purpose  parol  evidence  is  admissible  as  between 
the  partners  and  their  representatives,  to  show  that  a  conveyance 
to  a  partner  was  for  the  benefit  of  the  firm.32    And  where  the 
statute  forbids  a  resulting  trust  unless  the  conveyance  is  so  taken 
without  the  knowledge  of  the  party  paying  the  consideration,  the 
court  will  not  presume  knowledge ;  but  in  support  of  a  clear 
equity,  the  court  may,  from  the  fact  that  those  paying  intended 
the  conveyance  to  be  taken  in  the  grantee's  name,  presume  that 
he  intended  it  to  recognize  his  equity,  and  was  ignorant  of  the 


1  Boyd  v.  Foot,  6  Bosw.  110. 

8  Dean  v.  McDowell,  26  Weekly  R.  486 ;  and  see  Clements  T.  Norris,  38  L.  T.  N. 
S.  691. 

3  Somerville  v.  Mackey,  16  Ves.  382 ;  Locke  v.  Lynam,  4  Ir.  Ch.  188. 

4  Russell  v.  Austwicb,  1  Sim.  62;  Mitchell  v.  Reed,  61  X.  Y.  123,  rev'g  61  Barb. 
310. 

5  See  Cox  v.  McBurney,  2  Sandf.  561 ;  but  compare  Campbell  v.  Mullett,  2  Swanst. 
651;  Comegys  v.  Vasse,  1  Pet.  193. 

6  Nichols  v.  English,  3  Brews.  260. 

I  Herrick  v.  Ames,  8  Bosw.  115. 

8  Manuf.  Nat.  Bank  v.  Cox,  2  Hun,  572;  affi'd  without  further  opinion  in  59  N.  Y. 
659. 

9  Id. ;  Mitchell  T.  Reed  (above). 
10  Bast's  Appeal,  70  Penn.  !St.  301. 

II  Hogle  v.  Lowe,  6  Reporter,  118. 

14  Fairchild  v.  Fairchild,  64  N.  Y.  471,  affi'g  5  Hun,  407.  Contra,  as  against  cred- 
itors, purchasers,  <tc.,  Le  Fevre's  Appeal,  69  Penn.  St.  122;  Ebbert's  Appeal,  70  Id. 
79. 


ACTIONS  BETWEEN  PARTNERS.  229 

fact  that  it  did  not.1  The  fact  that  land  is  held  in  the  names  of  the 
several  persons  alleged  to  be  partners,  or  in  the  name  of  one  for 
the  benetit  of  all,  is  not  alone  evidence  of  copartnership  between 
them  with  respect  to  it.2  But  where  partnership  is  shown  to 
exist,  and  land  is  conveyed  to  the  several  partners,  evidence 
of  actual  use  for  partnership  purposes,  or  of  a  positive  agreement 
making  it  partnership  property,  is  not  essential.  If  paid  for  with 
partnership  funds,  it  is  then  a  question  of  intention  whether  the 
property  is  held  by  the  partners  as  tenants  in  common,  or-whether 
it  is  partnership  property.  In  the  absence  of  other  evidence,  the 
manner  in  which  the  accounts  are  kept,  whether  the  purchase- 
money  was  severally  charged  to  the  members,  or  whether  the  ac- 
counts treat  it  as  they  do  the  other  firm  property,  as  to  purchase- 
money,  income,  expenses,  etc.,  are  controlling  circumstances  in 
determining  such  intention,8  and  from  these  circumstances  an 
agreement  may  be  inferred.  The  same  evidence  which  would 
make  it  partnership  property,  for  the  purpose  of  paying  debts 
and  adjusting  the  equity  between  the  copartners,  establish  it  for 
the  purpose  of  final  division.4 

51.  Evidence  to  charge  member  with  assets.] — Partners  who 
are  not  shown  to  have  had  exclusive  management,  are  not  to  be 
charged  with  income,  &c.,  without  evidence  that  they  actually  re- 
ceived it.5    And  those  who  had  exclusive  management  may  be 
charged  with  the  whole  capital ;  but  not  with  uncollected  debts, 
without  evidence  of  actual  receipt  or  negligence,6  or  of  refusal  to 
give  account.7 

52.  Evidence  to   credit  member  with  payments  or  share.] — 
The  interest  of  each  is  presumed  equal  in  the  absence  of  proof.8 
Profits  of  a  continuous  enterprise  may,  for  the  purpose  of  equa- 
ble division,  be  presumed  to  have  accrued  ratably  as  the  work 
progressed.9 

53.  Partnership  &00&S,  <&?.,  as  evidence] — Prima  facie  the 
books  of  a  partnership  are,  as  between  the  partners,  evidence  for 
them  all  and  against  them  all.10    Entries  made  during  the  contin- 
uance of  the  firm,  in  the  books  to  which  a  partner  had  access 


1  Fairchild  v.  Fairchild  (above). 

*  Thompson  v.  Bowman,  6  Wall.  317. 

8  But  not  necessarily  conclusive.    Grubb's  Appeal,  66  Penn.  St.  117,  128. 
4  Fairchild  v.  Fairchild  (above). 

•  Richardson  v.  Wyatt,  2  Dess.  471,  481. 

•  See  Gunnell  v.  Bird,  10  Wall  304,  308. 
'  Gillett  v.  Hall,  13  Conn.  426,  435. 

8  Fox  Dig.  L.  of  P.  59 ;  Gould  v.  Gould,  6  Wend.  267.  Contra,  as  to  profits,  3 
Bosw.  1 1 5.  Whether  difference  in  contributions  is  alone  sufficient  evidence  of  intent 
to  share  unequally,  compare  Neudecker  v.  Kohlbergh,  3  Dalv,  4u7 ;  Story  ou  Partn. 
J5,  §  24.  See  also  Whitcomb  v.  Convers.  119  Mass.  38,  s.  c.  20  Am.  R.  311 

*  Clark  v.  Gilbert,  26  JS.  Y.  279,^7^  32  Barb.  576. 
10  Lodge  v.  Prichard,  3  De  Gex,  M.  <fe  G.  906. 


230  ACTIONS  BETWEEN  PARTNERS. 

when  the  entries  were  made,  or  immediately  afterwards,  are  pre- 
sumptive evidence  against  him,1  in  the  absence  of  evidence  of  his 
dissent.8  If  it  be  snown  that  the  account  was  kept  by  the  part- 
ner, in  whose  favor  the  entrv  is,  evidence  may  be  required  that  the 
book  was  a  partnership  book,  had  been  fairly  kept,  and  was  acces- 
sible to  the  other.8  The  evidence  drawn  from  the  entries  may  be 
rebutted,  by  aid  of  proof  that  the  partner  against  whom  they  are 
adduced  had  no  knowledge  of  the  entries ;  and  any  circumstances, 
such  as  distance,  course  of  business,  &c.,  are  relevant.4  In  case 
of  entries  made  after  dissolution,  the  party  adducing  them  must 
show  that  the  other  had  the  books,  and  an  opportunity  of  exam- 
ining them  at  the  time,  and  did  not  dissent.5 

54r.  Evidence  of  voluntary  settlement^ — Evidence  of  an  oral 
agreement  for  accounting  and  settlement,  executed  by  a  state- 
ment and  settlement  accordingly,  though  subsequent  to  a  written 
agreement  for  dissolution,  is  competent.6  But  an  account  ren- 
dered and  not  shown  to  be  acquiesced  in,  is  not  enough  to  bar  an 
action  for  an  account.7 


1  Hearlt  v.  Corning,  3  Paige,  566 ;  s.  P.  Caldwell  v.  Lieber,  7  Id.  483.  But  in  case 
of  a  dormant  partner,  it  should  appear  or  be  presumable  that  he  not  only  had  access 
to  the  books,  but  actually  inspected  them.  Taylor  v.  Herring,  10  Bosw".  447. 

s  Dunnell  v.  Henderson,  23  N.  J.  Eq.  174. 

8  Adams  v.  Funk,  63  111.  219;  Wheatley  v.  Wheeler,  34  Md.  62. 

4  U.  S.  -v.  Binney,  6  Mas.  188. 

B  Pratt  T.  McHatton,  11  La.  Ann.  262. 

'  Wiggin  v.  Goodwin,  63  Me.  389. 

«  Wood's  Coll.  461,  §  298. 


CHAPTEE  X. 

ACTIONS  BY  AND  AGAINST  RECEIVERS. 

1.  Allegation    of    appointment,    and          4.  Evidence  of  transactions  of  defend- 

right  of  action.  ant. 

2.  Evidence  of  appointment.  6.  Action  against  receiver. 
8.  Leave  to  sue. 

1.  Allegation  of  appointment,  and  right  of  action."] — In  those 
jurisdictions  where  a  receiver  sues  in  his  own  name,  as  such,  an 
allegation  of  his  due  appointment  is  necessary,  if  the  right  of  ac- 
tion was  vested  in  him  by  the  appointment ;  and  the  allegation, 
if  not  admitted,  must  be  proved.1    If,  on  the  other  hand,  the 
right  of  action  is  not  derived  through  his  appointment, — as,  for 
instance,  where  he  sues  on  a  contract  with  him  as  receiver, — he 
need  not  allege  his  appointment,  but  he  may  sue,  simply  describ- 
ing himself  as  receiver.2    And  in  those  States  where  a  foreign 
receiver  is  not  recognized  by  the  courts,3  he  may  still  sue  if  he 
can  prove  a  cause  of  action  not  directly  dependent  on  his  title  as 
receiver.     Thus  any  action  which  may  be  sustained  by  proof  of 
possession  without  proof  of  title,4  or  by  proof  of  a  contract  made 
with  himself,5  or  a  transfer  to  him,6  he  may  maintain ;  and  the 
fact  that  he  is  named  on  the  record  in  his  official  capacity  should 
not  alone  defeat  the  suit. 

2.  Evidence  of  appointment.] — If  appointed  by  a  court  of 
general  jurisdiction,  it  is  enough  to  produce  the  decree,7  (when 
appointed  in  a  cause),  or  the  petition  and  order 8  (when  appointed 
in  a  special  proceeding),  with  his  bond  or  other  qualification, 
without  producing  the  proceedings  at  large.     The  appointment 
of  a  receiver  of  a  national  bank  is  proved  by  a  certificate  of.  the 
comptroller  of  the  currency,  approved  and  concurred  in  by  the 
secretary  of  the  treasury,  and  reciting  the  existence  of  all  the 


1  Bangs  v.  Mclntosh,  23  Barb.  691;  and  see  Manley  v.  Rassiga,  13  Hnn,  288. 

s  White  v.  Joy,  13  N.  Y.  (3  Kern.)  83,  rev'g  11  How.  Pr.  36. 

1  See  Willits  v.  Waite,  25  N.  Y.  584 ;  Cagill  v.  Woolridge,  4  Centr.  L.  J.  6,  and 
note;  High  on  Rec.  156,  §  239. 

4  Graydon  v.  Church,  7  Mich.  36.  So  his  assignee  may  sue.  Hoyt  v.  Thompson, 
6  N.  Y.  838. 

B  Helme  v.  Littlejohn,  12  La.  Ann.  298. 

•  Palmer  v.  Clark,  4  Abb.  New  Cas.  25. 

*  Id.     It  seems  that  the  oath  and  bond  may  be  presumed.    See  Dayton  v.  John- 
eon,  69  N.  Y.  419.    Compare  Rockwell  v.  Merwin,  45  Id.  168. 

[231] 


232  ACTIONS  BY  AND  AGAINST  RECEIVERS. 

statutory  facts.1     The  record,  while  it  remains  a  subsisting  order 
or  decree,  is  conclusive.2 

3.  Leave  to  sue.] — Leave  to  sue  need  not  usually  be  proved,8 
but  in  those  jurisdictions  where  an  allegation  and  proof  of  it  is 
required,  the  court  may,  after  long  delay  to  object,  presume  that 
it  was  duly  had,  from  the  making  by  the  court  of  orders  facilitat- 
ing the  progress  of  the  suit.4 

4.  Evidence  of  transactions  of  defendant^ — In  general,  the 
same  evidence  is  admissible  that  woula  be  admissible  in  an  action 
between  the  defendant  and  the  corporation  or  person  of  whose 
property  plaintiff  is  receiver.     In  an  action  by  the  receiver  of  a 
corporation  against  its  stockholders,  the  fact  that  the  name  of 
defendant  appears  on  the  stock-book  as  a  holder  of  stock,  raises  a 
presumption  that  he  is  its  owner,  and  throws  on  him  the  burden 
of  giving  evidence  to  the  contrary.5    In  the  case  of  a  national 
bank,  the  certificate  of  the  comptroller  of  the  currency  is,  as 
against  stockholders,  conclusive  evidence  of  the  regular  organiza- 
tion and  existence  of  the  corporation,6  and  of  the  extent  to  which 
the  individual  liability  of  stockholders  shall  be  enforced.7     But 
the  ordinary  account  books  of  the  corporation,  containing  their 
entries  of  the  dealings  of  the  defendant  with  the  corporation,  are 
not  competent  against  defendant,8  any  more  than  those  of  an  in- 
dividual, except  on  some  special  ground  such  as  would  make 
them  competent  if  the  action  were  by  the  corporation, — as,  for 
instance,  that  defendant  actually  had  access  to  the  books  so  as  to 
raise  an  implied  admission  of  the  correctness  of  entries  not  ob- 
jected to  at  the  time.9 

5.  Action  Against  receiver. ~\ — A  receiver,  acting  within  his  au- 
thority, is  not  liable  personally,  except  on  proof  of  personal  mis- 
conduct, even  if  he  do  not  object  that  leave  to  sue  him  was  not 
sought ; 10.  but  when  sued  for  interfering  with  property  which  the 
decree  by  which  he  was  appointed  did  not  authorize  nim  to  med- 
dle with,  plaintiff  need  not  show  leave  to  sue,  for  in  such  case  the 
receiver  is  merely  a  trespasser.11    A  foreign  receiver  may,  if  jur- 
isdiction be  acquired,  be  sued  here,  and  without  leave,  if  it  be 
shown  that  he  would,  by  the  law  of  the  State  where  appointed,  be 
held  liable  in  its  courts,  on  the  facts  of  the  case.18 


1  Platt  v.  Beebe,  67  N.  Y.  339. 

8  Vermont  &  Canada  R.  R.  Co.  v.  Vermont  Central  R.  R.  Co.  46  Vt  792. 

8  4  Abb.  N.  Y.  Dig.  2d  ed.  423. 

4  Jerome  v.  McCarter,  94  U.  S.  (4  Otto),  734,  737. 

6  Turnbull  v.  Payson,  95  U.  S.  (5  Otto),  418,  421,  and  cases  cited, 
•  Casey  v.  Galli,  94  U.  S.  (4  Otto),  673. 

7  Id. 

8  White  v.  Ambler,  8  N.  Y.  170.     See  Chapter  on  CORPORATIONS. 

9  See  Rockwell  v.  Merwin,  8  Abb.  Pr.  N.  S.  330,  45  N.  Y.  166. 

10  Camp  T.  Barney,  4  Hun,  373.     See  further  p.  52  of  this  vol. 

11  Hills  v.  Parker,  111  Mass.  608. 
"  Paige  v.  Smith,  99  Mass.  395. 


CHAPTER  XI. 

ACTIONS  BY  AND  AGAINST  TRUSTEES. 

1.  Express  trusts.  6.  Admissions  and  declarations  of  the 

2.  Demand  before  suit,  and  notice.  cestui  que  trust. 
8.  Trustees'  receipts.  7.  —  of  the  trustee. 
4.  Compromises.  8.  Judgments. 

6.  Justification  of  dealings  with  the  es-      9.  Presumption  of  conveyance  by  trustee, 
tate.  10.  Constructive  and  resulting  trusts. 

1.  Express  trusts.'] — Under  the  statute  of  frauds,1  a  trust  need 
not  be  created  by  writing,  but  it  must  be  manifested  and  proved 
by  writing,  and  where  there  is  no  explicit  declaration,  the  nature 
of  the  trust,  and  the  terms  and  conditions  of  it,  must  sufficiently 
appear  so  that  the  court  may  not  be  called  upon  to  execute  the 
trust  in  a  manner  different  from  that  intended.2  Such  a  trust 
manifested  by  writing  not  intended  for  the  purpose,  cannot  be 
established  by  resorting  to  parol  evidence  to  supply  defects  or 
omissions  in  the  written  evidence.3  No  particular  form  of  words 
is  necessary.  It  is  enough  if  the  creator,  having  the  property, 
conveys  it  to  another  in  trust,4  or  admits  the  trust  in  a  writing, 
whether  addressed  to  the  cestui  que  trust  or  to  a  third  person,5  or, 
the  property  being  personal,  if  he  unequivocally  declares  either 
orally  or  in  writing,  that  he  holds  it  inprcMenU  in  trust,  or  as  a 
trustee  for  another ; 8  and  the  creation  of  a  trust  in  writing,  if 
otherwise  unequivocal,  is  not  affected  by  the  fact  that  the  creator 
of  the  trust  retains  the  instrument  declaring  it.7  Knowledge 


1  2  N.  T.  R.  S.  135,  §§  6,  7,  as  am'd  by  L.  1860,  ch.  322. 

*  Steere  v.  Steere,  5  Johns.  Ch.  1,  11. 

8  Cook  v.  Bare,  44  N.  Y.  156,  161.  Contra,  Kingsbury  v.  Burnside,  58  111.  810, 
s.  o.  11  Am.  R.  67,  where  it  is  held  that  if  the  writing  affords  evidence  of  the  exist- 
ence of  a  trust,  the  terms  may  be  supplied  alinncte.  If  there  be  written  evidence 
of  the  existence  of  the  trust,  the  danger  of  parol  declarations,  against  which  the  stat- 
ute was  directed,  is  effectually  removed.  Whether  a  deed  to  one  as  "  trustee,"  but 
without  declaring  for  whom  or  what  purpose,  can  be  aided  by  parol,  compare  Dillaye 
v.  Greenough,  45  N.  Y.  438;  Railroad  Co.  v.  Durant,  95  U.  S.  (5  Otto),  576,  579. 

*  Ray  v.  Simmons,  11  R.  I.  266,  s.  c.  23  Am.  R.  447,  and  cases  cited. 

*  Any  writing  may  be  used  for  the  purpose,  though  not  intended  as  a  declaration 
of  trust.     Kingsbury  v.  Burnside,  58  111.  310,  s.  c.  11  Am.  R.  67.     Thus,  admissions 
in  a  pleading  in  an  action  with  third  persons  will  be  sufficient.     Cook  v.  Barr,  44  N. 
Y.  156. 

*  See  Walker  v.  Walker,  9  Wall.  754. 

7  Especially  where  he  himself  is  the  trustee.  Ray  v.  Simmons,  11  R.  I.  266,  s.  c. 
23  Am.  R.  447,  and  cases  cited ;  Witzel  v.  Chapin,  3  Bradf.  386. 

[233J 


234:  ACTIONS  BY  AND  AGAINST  TRUSTEEa 

in  the  cestui  que  trust,  at  the  time,  need  not  be  proved.  If 
the  writing  in  which  the  parties  embodied  the  declaration  is 
clear  and  positive  as  to  the  terms  of  the  trust,  it  cannot  be 
varied  or  altered  by  parol  evidence,1  but  if  loose  and  ambig- 
uous, parol  evidence  is  competent  to  sho^v  what  was  their  un- 
derstanding.3 In  ascertaining  the  purposes  of  a  trust,  the  lan- 
guage of  the  conveyance,  if  clear  and  unequivocal,  is  conclusive.3 
If  the  language  is  indefinite,  extrinsic  evidence,  such  as  the  tenets 
held  by  the  donor,  or  the  faith  then  actually  taught  by  the 
donees,  and  the  circumstances  under  which  the  gift  was  made, 
and  the  denominational  name  of  a  religious  corporation  or  so- 
ciety to  which  a  donation  is  made,  and  the  doctrines  actually 
taught  therein  at  the  time  of  the  gift,  may  be  resorted  to  in  order 
to  limit  and  define  the  trust  in  respect  to  doctrines  usually  con- 
sidered fundamental,  but  not  as  to  lesser  shades  or  points  of  doc- 
trine not  deemed  fundamental.4  To  prove  the  acceptance  of  a 
trust,  any  act  of  the  trustees  under  the  instrument  creating  the 
trust  is  competent  evidence.5  Parol  evidence  is  equally  com- 
petent to  disprove  acceptance  by  the  one  named  as  trustee,  or 
by  one  of  several  so  named.6  But  if  it  was  accepted,  though 
for  a  moment,  parol  proof  of  a  release  is  not  competent.7 

"Where  the  action  is  not  against  the  trustee,  but  brought  by 
him  against  those  who  have  dealt  with  him,  or  strangers,  much 
slighter  evidence  is.  enough  to  show  him  a  trustee  of  an  ex- 
press trust  within  the  statute  allowing  such  an  one  to  sue  in 
nis  own  name.8 

2.  Demand  lefore  suit,  and  notice."] — Before  a  suit  can  be 
brought  against  a  trustee,  he  must  have  had  notice  of  the  duty  he 
is  required  to  perform,  and  must  have  had  an  opportunity  to 
perform  it. 

But  where  the  trustee  is  himself  an  actor  in  the  transa^ 
tion,  and  has  full  knowledge  of  his  duties,  such  notice  and  de- 


1  Steere  v.  Steere,  6  Johns.  Ch.  1.  So  held  even  where  the  writings  were  merely 
accounts  and  letters.  Compare  Brabrook  v.  Boston  Five  Cents  Savings  Bank,  104 
Mass.  228,  s.  o.  6  Am.  R.  222. 

s  Steere  v.  Steere  (above).  The  tendency  of  later  decisions  is  to  insist  on  clear 
and  cogent  evidence.  See  Lantry  v.  Lantry,  61  111.  458,  s.  c.  1  Am.  R.  310;  and  U. 
S.  Dig.  tit.  Trust. 

8  Miller  v.  Gable,  2  Den.  492,  648. 

4  Hale  v  Everett,  63  N.  H.  9,  s.  c.  16  Am.  R.  82.  Compare  Happy  v.  Morton,  33 
HI.  398,  413;  see  also,  rules  as  to  extrinsic  evidence  to  interpret  wills,  p.  128,  <fcc., 
of  this  vol. 

6  Lewis  v.  Baird,  3  McLean,  56;  and  see  8  Wms.  Exr.  6  Am.  ed.  1896,  and  note. 

6  Armstrong  v.  Morrill,  14  Wall.  139 ;  Burritt  v.  Silleman,  13  N.  Y.  93,  rev'g  16 
Barb.  198. 

1  Id.  and  cases  cited. 

8  Any  declaration,  however  informal,  which  evinces  the  intention  of  the  party 
with  sufficient  clearness,  will  have  that  effect  as  to  personalty.  Chew  v.  Brumagen, 
13  Wall  497,  and  cases  cited. 


('ACTIONS  BY  AND  AGAINST  TRUSTEES.  235 

mand  are  not  required.1  If  there  are  several  trustees,  a  demand 
on  the  one  against  whom  personal  recovery  is  sought  should 
be  proved.2  Where  the  trustees  are  not  chosen  by  nor  the 
agents  of  the  cestui  que  trust,  notice  to  one  of  several  co-trustees 
is  not  notice  to  the  cestui  que  trust  for  the  purpose  of  depriv- 
ing him  of  the  character  of  lonafide  holder.8 

3.  Trustees'  receipts.'] — All  of  several  trustees  of  an  express 
trust  must  join  in  receipts,  conveyances  and  actions,4  and  the  re- 
ceipt of  one  is  not  alone  competent  evidence  to  charge  or  bar 
the  others.     If  two  trustees  join  in  a  receipt  for  money,  it  is 
presumptive  evidence   that   the   money  came  equally  into   the 
possession  or  under  the  control  of  both  ;  and  there  must  be  direct 
and  positive  proof  to  rebut  the  presumption.5    In  such  case  the 
burden  is  on  the  trustee  to  prove  that  his  acknowledgment  of  the 
receipt  of  the  money  was  merely  for  conformity,  and  that  in  fact 
he  received  none  of  the  money,  and  that  his  co-trustee  received 
it  all.     If  there  is  no  evidence  upon  this  point,  all  the  trustees 
who  join  in  signing  the  receipt  will  be  held  responsible  in  solido, 
on  the  ground  that  the  acknowledgment  in  the  receipt  isprima 

facie  evidence  of  the  facts  stated.  At  common  law  the  receipt 
was  conclusive,  and  estopped  the  trustee  from  denying  that  he 
received  any  of  the  money  ;  but  equity  rejects  the  estoppel,  and 
will  determine  according  to  the  fact.  .But  if  a  trustee,  signing 
a  receipt,  receives  any  part  of  the  money,  and  it  does  not  appear 
how  much,  he  will  be  answerable  for  the  whole.6 

4.  Compromises^ — If  the  trustee  has  compromised  a  claim, 
without  leave  of  court  had  on  notice  to  the  cestui  que  trust,1  the 
burden  is  on  him  of  showing  that  by  the  situation  existing  at  the 
time  he  made  the  compromise,  it  was  properly  judged  advan- 
tageous for  the  estate.8    If  he  shows  this  he  is  not  made  liable  by 
the  result  proving  disadvantageous.9     If  he  obtained  leave  un- 
der a  statute  authorizing  the  court  to  grant  it,  and  not  requiring 
notice,  or  under  the  general  power  of  a  court  of  equity  to  direct 
a  trustee,  on  notice  to  the  cestui  que  trust,10  the  order  of  the  court 
protects  him  n  irrespective  of  the  result,  and  throws  upon  a  cestui 


I  Brent  v.  Maryland,  18  Wall.  430,  and  cases  cited. 
8  Jessop  v.  Miller,  2  Abb.  Ct.  App.  Dec.  449. 

'  Commissioners  of  Johnson  County  v.  Thayer,  94  U.  S.  (4  Otto),  631,  644.    • 
:  *  6  Abb.  N.  Y.  Dig.  25,  35. 
6  Monell  v.  Monell,  5  Johns.  Ch.  283. 

6  2  Perry  on  Trusts,  601,  §  416. 

7  Sollee  v.  Croft,  7  Rich.  Eq.  34,  43,  45 ;  Anon  v.  Gelpcke,  5  Hun,  245. 

8  "The  Chancellor  is  the  only  safe  and  secure  counsellor  to  trustees."    NASH,  J., 
Freeman  v.  Cook,  6  Ired.  Eq.  N.  C.  373,  378. 

9  Murray  v.  Blatchford,  1  Wend.  583,  616;    Bacot  v.  Hayward,   6  Rich.  (S.  C.) 
441. 

10  If  the  court  has  equity  powers  only  by  express  statute,  the  rule  is  the  same. 
Treadwell  v.  Cordis,  5  Gray,  341. 

II  Alike  on  the  compromise  of  a  legal  (Talbot  v.  Earl  of  Radnor,  3  Mylne  <fe  K. 
252;  Wheeler  v.  Perry,  18  N.  H.  307)  as  of  an  equitable  claim.    Jones  v.  Stockett,  2 
Bland  Ch.  (Md.)  409.  425. 


236  ACTIONS  BY  AND  AGAINST  TRUSTEES. 

que  trust  who  assails  the  compromise,  the  burden  of  proving 
fraud  or  bad  faith. 

5.  Justification  of  dealings  with  the  estate."] — If  a  trustee  pur- 
chases of  the  cestui  que  trust,  or  accepts  a  benefit  from  him,  the 
burden  is  on  the  trustee  to  vindicate  the  transaction  from  any 
shadow  of  suspicion,  and  to  show  that  it  was  perfectly  fair  and 
reasonable  in  every  respect.1    If  he  alleges  the  consent  of  the 
cestui  que  trust,  the  presumption  is  against  the  fairness  of  the 
transaction,  and  the  burden  is  on  him  to  show  it  affirmatively, 
and  to  establish  all  the  conditions  necessary  to  its  validity.3    If 
the  trustee  deals  with  the  trust  fund  for  his  own  benefit,  the 
cestui  que  trust,  on  calling  him  to  account,  need  not  show  that 
there  was  any  inequality  or  disadvantage  in  the  transaction.3     He 
is  absolutely  entitled  to  have  it  set  aside,  unless,  being  sui  juris, 
he  has  ratined  the  act  or  waived  the  objection,4    Silent  acquies- 
ence,  without  facts  constituting  an  estoppel,  does  not  affect  the' 
right  of  action,5  unless  unreasonably  prolonged.6 ' 

6.  Admissions  and  declarations  of  the  cestui, que  trust.'] — To 
let  in  the  admissions  and  declarations  of  the  cestui  que  trust 
against  the  trustee,  being  the  party  on  the  record,  it  must  clearly 
appear  that  the  action  is  brought  for  the  benefit  of  the  declarant 
or  those  claiming  under  him.7    The  admissions  of  one  of  several 
cestuis  que  trustent  in  a  formal  trust  are  not  generally  competent 
for  the  purpose  of  defeating  the  title  of  their  trustee,  especially 
in  an  express  trust  of  real  property.8    But  where  the  cestuis  que 
trustent  are  really  principals,  their  admissions  are  competent,  and 
their  relation  may  involve  an  agency,  in  which  case  the  admis- 
sions of  one  will  be  competent  against  the  other. 

7.  Admissions  and  declarations  of  the  trustee."] — In  the  case 
of  a  formal  express  trust  the  admissions  and  declarations  of  a  sole 
trustee,  if  made  while  he  was  trustee,9  and  relating  to  matters 
within  the  scope  of  his  duty  and  authority,  are  competent  evi- 
dence against  him  or  his  cestui  que  trust,10  when  adduced  in  favor 
of  third  persons.    If  his  trust  partook  of  the  nature  of  an  agency, 
his  admissions  and  declarations  within  the  scope  of  the  agency 
are  competent.      In  any  case,  his  admissions   and   declarations 


1  2  Perry  on  Trusts,  516,  §  428.     Held  otherwise  where  the  trustee  acts  in  the 
hostile  attitude  of  an  urgent  creditor.     11  Moak's  Eng.  112,  note. 
4  Cumberland  Coal  Co.  v.  Sherman,  30  Barb.  553,  572. 

3  Jewett  v.  Miller,  10  N.  Y.  402. 

4  Boerum  v.  Schenck,  41  Id.  182. 

8  14  Moak's  Eng.  85,  note.     Contra,  15  Id.  19. 

6  Twin-lick  Oil  Co.  v.  Marbury,  91  U.  S.  (1  Otto),  587. 

'  May  v.  Taylor,  7  Jur.  512,  s.  c.  6  Mann.  &  G.  261 ;  6  Scott  N.  R.  974. 

*  Pope  v.  Devereaux,  5  Gray  (Mass.)  409,  413. 

9  Beatty  v.  Davis,  9  Gill  (Md.)  211. 

10  Maxwell  v.  Harrison,  8  Geo.  61,  67;  Helm  v.  Steele,  3  Humph.  (Tenn.)  472. 
Contra,  Graham  v.  Lockhart,  8  Ala.  N.  S.  9 ;  2  Perry  on  Trusts,  522,  §  433  ;  Thomas 
V.  Bowman,  30111.  84,  29  id.  426.  Compare  Thompson  v.  Drake,  32  Ala.  99. 


ACTIONS  BY  AND  AGAINST  TRUSTEES.  237 

made  at  whatever  time,  if  relevant  to  the  issue,  are  competent 
evidence  against  himself  personally.  If  there  are  several  co- 
trustees,  the  admissions  of  one  are  competent  against  himself,  but 
not  against  his  co-trustee,1  nor,  alone,  against  their  cestui  que 
trust? 

8.  Judgments^ — A  judgment  or  verdict  against  one  individu- 
ally does  not  estop  him  as  trustee.8    But  an  adjudication  against 
him  as  trustee  estops  him  in  respect  to  his  private  right  as  a 
cestui  que  trust  held  at  the  time  of  the  former  action,  or  acquired 
from  persons  then  holding  it.4    An  adjudication  against  him  in 
the  capacity  of  trustee  does  not  estop  him  from  bringing,  as 
trustee  for  a  different  purpose,  or  in  a  different  right,  another 
action  against  the  same  defendant,  and  hence  it  does  not  estop 
the  defendant  in  favor  of  the  trustee.5 

9.  Presumption  of  conveyance  ty  trustee, ,] — A  presumption  of 
fact  that  a  conveyance  has  been  made  by  a  trustee  to  those  entitled 
to  a  conveyance,  in  conformity  to  the  trust,  arises  after  a  consid- 
erable lapse  of  time.6    So  where  the  object  of  a  trust  has  entirely 
failed,  a  reconveyance  from  the  grantee  to  the  grantor,  or  if  there 
were  several,  to  that  one  who  had  the  exclusive  beneficial  right, 
will  be  presumed,  both  in  equity  and  at  law.7     Three  things  must 
concur  to  warrant  this  presumption :  1.  A  duty  on  the  part  of  the 
trustee  to  convey  ;   2.  A  reason  for  the  presumption,  not  neces- 
sarily sufficient  to  induce  conviction  of  a  conveyance  in  fact,  but 
a  reason  of  justice ;  3.  The  object  must  be  the  support  of  a  just 
title.     The  case  must  be  such  that  equity  would  decree  a  convey- 
ance.8   But  a  conveyance  which  would  be  a  breach  of  their  trust 
cannot  be  presumed,9  even  after  great  lapse  of  time. 

10.  Constructive  and  resulting  trustsJ] — Parol   evidence  is 
competent  for  the  purpose  of  charging  a  grantee  as  trustee  ex 
maleficio,  or  as  a  constructive  trustee,  where  the  application  of 
the  statute  requiring  written  evidence  would  operate  as  a  fraud.10 
Evidence  of  a  parol  agreement  is  competent  to  show  that  defend- 
ant made  advances  and  took  title  to  plaintiff's  property  for  his 
benefit  as  to  any  surplus.     A  stranger  is  not  to  be  made  a  con- 


1  Davies  v.  Ridge,  3  Esp.  101. 

8  Walker  v.  Dunspaugh,  20  N.  Y.  170. 

*  Rathbone  v.  Hooney,  58  N.  Y.  463. 

4  Corcoran  v.  Chesapeake,  <fec.  Canal  Co.  94  U.  S.  (4  Otto),  741,  745, 

5  Leggott  v.  Great  Northern  Railway  Co.  1  Q.  B.  Div.  699,  s.  c.  17  Moak'e  Eng. 
238. 

*  See  Jackson  v.  Moore,  13  Johns.  613  ;  Jackson  v.  Cole,  4  Cow.  587. 

7  Lade  v.  Holford,  Bull.  N.  P.  110 ;  England  v.  Slade,  4  T.  R.  682. 

8  French  v.  Edwards,  21  Wall.  160. 

*  Brewster  T.  Striker,  2  N.  Y.  19,  affi'g  1   E.  D.  Smith,  321,  7  N.  Y.  Leg.  Obs. 
140. 

10  This  is  the  better  opinion  amid  much  conflict  in  the  authorities.  Dodije  v.  Well- 
man,  1  Abb.  Ct.  App.  Dec.  612  ;  Ryan  v.  Dox,  34  N.  Y.  807,  rev'g  25  Barb.  440; 
Carr  v.  Carr,  62  N.  Y.  261 ;  Sandfo'rd  v.  Norris,  4  Abb.  Ct.  App.  Dec.  144. 


238  ACTIONS  BT  AND  AGAINST  TRUSTEES. 

structive  trustee  merely  because  he  acts  as  agent  of  the  trustee. 
It  should  be  shown  that  he  received  and  became  chargeable  with 
some  part  of  the  trust  property,  or  knowingly  assisted  in  a  fraud- 
ulent transaction  on  the  part  of  the  trustee.1 

A  resulting  trust,  even  in  real  property,  in  the  cases  in  which 
the  statute  allows  such  trusts,2  may  be  proved  by  parol  evidence8 
to  explain  a  conveyance  from  a  third  person.  But  if  a  written 
agreement  between  the  parties  appears,  manifesting  an  intent  to 
make  an  absolute  conveyance,  parol  evidence  is  not  competent 
between  them  to  prove  that  a  trust  was  intended,  unless  fraud  or 
mistake  is  shown  ; 4  but  it  is  competent  for  the  purpose  of  prov- 
ing that  the  conveyance  was  a  mere  security.5  To  establish  a  re- 
sulting trust  by  plaintiff's  payment  of  the  consideration  for  a  title 
taken  py  defendant,  it  must  appear  thafc  the  consideration,  or  a 
definite  fractional  part,  was  paid  at  or  before  the  time  of  the 
conveyance.  Parol  proof  of  intent  to  pay  is  not  enough,  nor  is 
proof  of  subsequent  payment,  unless  in,  pursuance  of  an  agree- 
ment made  at  or  before  the  time  of  conveyance.8 


1  Barnes  v.  Addy,  L.  R.  9  Ch.  App.  244,  s.  c.  8  Moak'a  Eng.  848. 
4  6  Abb.  N.  Y.  Dig.  10,  11. 

3  Swinburne  v.  Swinburne,  28  N.  Y.  568.     The  statute  of  frauds  does  not  apply. 
6  Abb.  N.  Y.  Dig.  8. 

4  St.  John  v.  Benedict,  6  Johns.  Ch.  Ill ;    Sturtevant  v.  Sturtevant,  20  N.  Y.  39. 
6  Even  though  there  was  no  personal  debt.     Horn  v.  Keteltas,  46  N.  Y.  605. 

•  6  Abb.  N.  Y.  Dig.  8,  9. 


PART    II.. 

EVIDENCE  AFFECTING  PARTICULAR  CAUSES  OF  ACTION. 


CHAPTEE  XII. 

'ACTIONS  FOR  MONEY  LENT 

1.  Grounds  of  action.  12.  Defendant's  check  in  favor  of  plaintiff. 

2.  Delivery  of  money  not  enough.  18.  Defendant's  check  drawn  on  plaintiff. 

3.  Direct  testimony  to  loan.  14.  Defendant's  receipt. 

4.  Delivery  to  third  person.  15.  Plaintiff's  check. 

6.  To  which  of  several  was  credit  given.  16.  Plaintiff's  account  books. 

6.  Request.  1*7.  Character  in  which  the  parties  dealt. 

*7.  Authority  of  agent.  18.  Connected  and  collateral  agreements. 

8.  Parties  to  joint  adventure.  19.  Mortgage. 

9.  Joint  debtors.  20.  Medium  of  repayment. 

10.  Written  evidence,  j  21.  Defenses — Disproof  of  loan. 

11.  Due  bill.  22.  —  Illegality. 

1.  Grounds  of  action.'] — Under  modern  practice,  to  sustain  an 
action  for  money  lent,  an  actual  loan  should  be  proved ;  that  is,  it 
must  appear  that  money  or  its  representative *  passed  between  the 
parties,  or  was  advanced  by  plaintiff  to  a  third  person  on  the 
request  of  defendant,  and  on  his  express  or  implied  promise  to 
repay  it.2 

2.  Delivery  of  money  not  enoughJ] — Proof  of  the  delivery  by 
plaintiff  of  money  or  checks  to  the  defendant  is  not  enough  with- 
out something  to  characterize  the  act  as  a  loan.3     Delivery  of 
money  is  presumed,  in  the  absence  of  other  evidence,  to  be  in 


1  Compare  Glyn  v.  Hertel,  8  Taunt.  208 ;  Howard  v.  Danbury,  2  C.  B.  803 ; 
Litchfield  v.  Irwin,  51  N.  Y.  51. 

8  At  common  law  a  count  for  money  lent  was  often  sustained  by  proof  of  a  note 
in  the  hands  of  an  indorsee,  or  by  other  evidence  not  showing  a  loan  between  the 
parties.  Under  the  Code  the  question  is,  does  the  pleading  correctly  state  the  essen- 
tial legal  elements  in  the  transaction ;  and  if  there  be  a  variance,  has  defendant  been 
misled  to  his  prejudice.  See  Briggs  v.  Vanderbilt,  19  Barb.  222;  and  paragraph 
10  (below). 

«  Welch  v.  Seaborn,  1  Stark.  474. 

[289] 


240  ACTIONS  FOR  MONEY  LENT/ 

payment  of  an  obligation.1  But  very  slight  evidence  indicating 
that  defendant  received  it  as  a  borrower  is  enough  to  go  to  the 
jury  and  sustain  a  finding  that  the  transaction  was  a  loan.2 

3.  Direct  testimony  to  loan.~\ — A  witness  may  testify  directly 
to  the  fact  that  he  lent,  or  made  a  loan,8  subject  of  course  to  cross 
examination  as  to  the  details ;  but  the  facts  being  brought  out,  the 
opinion  of  the  witness  is  not  competent  for  the  purpose  of  prov- 
ing that  it  was  a  loan.     He  cannot  testify  that  he  "  considered 
it"  such.4 

4.  Delivery  to  third  person^] — It  is  not  necessary  to  show  that 
the  money  was  paid  into  defendant's  hand.5     Proof  that  it  was 
disbursed  as  he  directed  will  suffice.      Thus  evidence  that  he, 
being  indebted,  requested  plaintiff  to  pay  the  creditor,  and  prom- 
ised if  he  would  do  so  to  repay  him,  is  appropriate,6  although 
it  would  equally  well  sustain  an  action  for  money  paid  to  de- 
fendant's use.     So  money  paid  in  pursuance  of  defendant's  re- 
quest to  pay  it  to  a  third  person,  or  his  request  to  advance  such 
sums  to  his  wife  as  she  might  call  for,  is  recoverable  as  a  loan  to 
defendant,  if  the  credit  was  given  to  him.7    But  proof  of  a  loan 
made  to  the  third  person  exclusively,  though  at  the  request  of 
the  defendant,  is  not  enough  to  sustain  an  averment  of  a  loan  to 
defendant.8 

5.  To  which  of  several  was  credit  given. — When  there  is  un- 
certainty on  the  evidence  as  to  whether  the  loan  proved  was 
made  to  one  or  other  of  several  persons,  that  is  to  say,  whether 
credit  was  given  to  one  or  another,  a  witness  who  was  present 
and  an  actor  in  the  transaction  may  be  asked  on  whose  credit 9 


1  Fleming's  Exr.  v.  McLainy  13  Penn.  St.  177,  and  cases  cited ;  Fish  v.  Davis,  62 
Barb.  122;  Bogert  v.  Morse,  1  N.  Y.  377;  Sayles  T.  Olmstead,  66  Barb.  590.  As  to 
the  evidence  of  distinction  between  a  loan  or  advancement,  see  p.  151  of  this  vol. 

8  Thus  the  testimony  of  a  witness  that  defendant  several  times  "  got  money  and 
checks"  of  plaintiffs  decedent,  is  not  enough  to  sustain  a  verdict  that  they  were  got 
by  way  of  loan.  Fleming's  Exr.  v.  McLain  (above).  Nor  is  the  admission  of  de- 
fendant that  "  he  had  had  money"  of  the  plaintiff.  Bogert  v.  Morse  (above).  But 
where,  after  defendant  had  made  such  admission  to  the  witness,  the  witness  said 
plaintiff  "  told  me  to  speak  to  you  about  it,"  and  defendant  turned  -away  without 
replying,  this  was  held  sufficient  evidence  that  it  was  a  loan  to  sustain  the  verdict. 
Id.  So  where  plaintiff  and  defendant  were  at  the  races,  and  defendant  having  lost  a 
bet,  plaintiff  handed  him  money  in  reply  to  his  request  for  money,  a  verdict  finding 
a  loan  was  sustained.  Lawton  v.  Sweeney,  8  Jur.  964.  As  to  evidence  of  the  rea 
gestce  for  this  purpose,  see  paragraph  15. 

8  Cole  v.  Varner,  31  Ala.  244. 

4  Saltmarsh  v.  Bower,  34  Ala.  613,  620. 

6  Wade  v.  Wilson,  1  East,  195. 

8  Hamilton  v.  Starkweather,  28  Conn.  138. 

1  Stevenson  v.  Hardy,  3  Wils.  388,  s.  c.  2  W.  Blackst.  872,  modifying  in  effect 
Marriott  v.  Lister,  2  Wils.  141. 

8  Butcher  v.  Andrews,  1  Salk.  23. 

'  Bank  v.  Kennedy,  17  Wall.  19.  But  the  authorities  are  not  uniform.  See  Chap- 
ter on  MONEY  PAIO. 


ACTIONS  FOR  MONEY  LENT.  241 

it  was  made ;  or,  in  other  words,  what  was  the  purpose  and 
intent  of  the  payment ;  subject,  of  course,  to  cross-examina- 
tion as  to  the  elements  involved  in  his  answer.1  So  the 
lender  may,  in  connection  with  the  facts,  testify  to  his  intent  to 
give  credit  to  defendant.2  But  in  either  case  the  witness's  opin- 
ion, as  distinguished  from  a  statement  of  the  fact,  is  not  compe- 
tent.8 The  entry  made  by  him  in  his  check  book,  at  the  time  of 
drawing  his  check:  for  the  money  to  be  lent,  may  be  proved  by 
him  as  part  of  the  res  gestce,.*  After  his  death  the  entry  is  ad- 
missible without  his  testimony.5 

6.  Request] — The  request  relied  on  to  characterize  the  trans- 
action as  a  loan,  must  be  proved  to  have  come  from  the  defend- 
ant, or  his  authorized  agent.     Proof  of  the  actual  application  of 
the  fund  to  his  use,  without  anything  tending  to  show  recogni- 
tion or  ratification  on  his  part,  is  not  enough.6     The  one  making 
the  payment  may  testify  that  it  was  made  in  consequence  of  the 
request.7    Evidence  of  the  request  may  be  corroborated  by  evi- 
dence of  defendant's  contemporaneous  declarations  of  intent  to 
make  the  request.8 

7.  Authority    of  agent.'] — Where    the  request  was    made 
by  an    alleged  agent,   the  authority  of  the  agent   cannot  be 
proved  by  nis  declarations  made  to  the  plaintiff  on  obtaining 
the  loan.9     Nor  where  a  loan  is  obtained  by  a  husband  upon 
promissory  notes  made  by  his  wife  can  his  authority  to  pledge  her 
separate  estate  for  their  payment  be  proved  by  his  declarations.10 

Testimony,  in  general  language,  that  the  one  who  borrowed 
was  agent  of  the  defendant  and  acted  as  such,  is  not  enough  to 
prove  his  authority  to  bind  his  principal  by  borrowing.11  Even 
proof  of  special  authority  to  buy  goods,  is  not  sufficient  evidence 


1  To  make  an  exception  to  such  a  question  available  the  grounds  should  be  stated 
— as  that  the  witness  is  not  shown  to  have  the  means  of  knowledge;    and  that  the 
question  is  framed  so  as  to  call  for  a  mental  conclusion  instead  of  a  fact.      67  N. 
Y.  651.     See  also  Chapter  XIV,  paragraph  19. 

2  Danforth  v.  Carter,  4  Iowa,  230  ;  and  see  Chap.  XIII,  paragraph  19. 

3  Id. 

4  Stark  v.  Corey,  45  111.  431.    Compare  Peck  v.  Von  Keller,  76  N.  Y.  604. 
4  N.  Y.  Dyeing,  Ac.  Establ.  v.  Berdell,  68  N.  Y.  613. 

6  Kelley  v.  Lindsey,  7  Gray  (Mass.)  287  ;  Henry  v.  Wilkes,  30  N.  Y.  562.  Com- 
pare Perkins  Y.  Dunlap,  5  Greenl.  268,  which  is  sustainable  as  an  action  for  money 
paid  to  defendant's  use  rather  than  for  money  lent.  So  if  a  lender  agrees  to  take  and 
does  take  the  express  written  promise  of  A.,  the  fact  that  the  money  waa  applied  to 
the  joint  use  of  A.  <fe  B.  will  not  establish  their  joint  liability  for  a  loan.  Underbill 
v.  Crawford,  29  Barb.  664. 

I  See  Sweet  v.  Tuttle,  14  N.  Y.  465.    But  the  authorities  are  not  uniform.     See 
Chapter  on  MONET  PAID. 

8  Clark  v.  McGraw,  14  Mich.  139,  149. 

•  Starin  v.  Town  of  Genoa  23  N.  Y.  489 ;  e.  p.  Deck  v.  Johnson,  4  Abb.  Ct 
App.  Dec.  815.  For  rules  applicable  to  master's  borrowing  for  ship  in  foreign  port, 
see  The  Grapeshot,  9  Wall.  138,  and  cas.  cit. ;  The  Emily  8<>uder.  17  Id.  666. 

10  Deck  v.  Johnson,  1  Abb.  Ct.  App.  Dec.  497;  Second  Nat.  Bank  v.  Miller,  2  N. 
Y.  S.  Ct.  (T.  <fe  C.)  104. 

II  Perkins  v.  Stebbins,  29  Barb.  523;  and  see  Kent  v.  Tyson,  20  N.  EL  121. 

16 


242  ACTIONS  FOR  MONEY  LENT. 

of  authority  to  borrow  the  money  with  which  to  buy.1  But  if  the 
money  has  been  actually  mingled  with  defendant's  funds,  or  ap- 
plied to  his  use,  very  slight  evidence  of  recognition  and  adoption 
on  his  part  will  suffice.2  Evidence  that  the  money  actually  and 
beneficially  went  into  defendant's  possession,  and  was  retained 
after  demand,  dispenses  with  necessity  of  other  evidence  of  special 
authority  in  the  agent.8  If  the  agent  had  authority  to  borrow, 
the  misapplication  of  the  money  by  him  is  not  relevant,4  unless 
plaintiff  was  connected  with  it.  Where  the  question  is  whether 
the  agent's  authority  extended  to  borrowing,  defendant  may  be 
held  liable  by  evidence  that  he  had  held  out  the  agent  as  author- 
ized by  previously  ratifying  repeated  transactions  of  the  same 
sort.5 

8.  Parties  to  joint  adventure.'] — In  respect  to  the  power  of 
one  to  borrow  for  all,  there  is  a  distinction  between  a  firm  (where 
the  power  depends  on  familiar  principles  of  the  law  of  partner- 
ship) and  a  combination  of  persons  having  merely  a  joint  owner- 
ship of  property,  or  even  an  interest  in  a  joint  adventure  or 
enterprise.     Proof  of  joint  ownership  of  property  does  not  alone 
suffice  to  establish  authority  in  one  of  the  owners  to  borrow 
money  on  the  credit  of  the  others,  even  for  the  benefit  of  the 
property.6    Nor  does  proof  that  several  were  engaged  together  in 
a  joint  adventure,  as  distinguished  from  a  partnership,  suffice.7 
In  such  cases  there  must  be  express  authority,  or  circumstances 
from  which  authority  may  be  inferred,  or  ratification.8 

9.  Joint  debtors.'] — The  request  of  one  of  several  joint  debtors 
who  are  apparently  all  principals,  although  it  may  suffice  to  sus- 
tain an  action  for  money  paid,9  will  not  suffice  to  sustain  an  ac- 
tion for  money  lent ;  for  one  of  several  joint  debtors,  who  is  a 


1  Bank  of  Indiana  v.  Bugbee,  1  Abb.  Ct.  App.  Dec.  86 ;  Martin  v.  Peters,  4  Robt. 
434. 

8  See  Gill  v.  Gillingham,  1  F.  <fc  F.  284;  Hearne  v.  Keene,  5  Bosw.  579.  Especi- 
ally now  that  parties  can  testify.  1  Daly,  327.  Approval  of  an  advance  to  pay 
dutips  for  an  agent  doea  not  imply  authority  in  the  agent  to  borrow.  Tucker  v. 
Woolsey,  6  Lans.  482. 

3  Merchants'  Bank  v.   State  Bank,  10  Wall.  644;  Gold  Mining  Co.  v.  National 
vBank,  96  TT.  8.  (6  Otto),  640,  644. 

4  City  Bank  of  New  Haven  v.  Perkins,  4  Bosw.  420. 

6  Kelley  v.  Lindsey,  7  Gray  (Mass.)  287 ;  Bank  of  Auburn  v.  Putnam,  1  Abb.  Ct. 
App.  Dec.  80;  Hammond  v.  Varian,  64  N.  Y.  398.  Where  such  transactions  came 
to  the  knowledge  of  the  lender  before  the  loan,  and  he  acted  on  the  faith  of  them, 
the  defendant  is  liable  also  on  the  ground  of  estoppel.  The  cases  where  it  has  not 
appeared  that  the  lender  had  any  knowledge  of  such  transactions,  are  not  in  harmony 
It  depends  somewhat  on  the  nature  of  the  agency,  and  sometimes,  in  part,  on  the 
usages  of  business.  See,  for  instance,  8  N.  Y.  167,  41  Me.  382,  56  N.  Y.  583,  rev'g 
1  N.  Y.  S.  Ct.  (T.  <fe  C.)  247.  As  to  whether,  where  a  son  borrows  in  his  father's 
n'ame,  and  there  is  no  direct  proof  of  agency,  the  fact  of  the  father  having  paid  other 
debts  contracted  by  Ids  son  is  admissible  for  the  purpose  of  charging  him, — com- 
pare 56  N.  Y.  836,  rev'g  7  Lans.  381 ;  and  54  N.  Y.  398. 

'  See  Mumford  v.  Brown,  6  Cow.  475. 

*  Moss  v.  Jerome,  10  Bosw.  220 ;  Alger  T.  Raymond,  7  Id.  426. 
8  See  Chapter  VII. 

•  Elmendorf  v.  Tarpon,  5  Johns.  176. 


ACTIONS  FOR  MONEY  LENT.  243 

principal  as  between  himself  and  the  others,  has  no  implied  au- 
thority to  borrow  money  for  all  jointly  to  pay  the  debt.1 

10.  Written  evidence.] — The  law  recognizes  the  general  usage 
of  men,  in  lending  money,  to  take  written  evidence  of  it ; 2  and 
this  is  one  reason  why  proof  of  the  mere  delivery  of  money  without 
writing  is  presumed  to  be  payment  of  an  obligation,  not  a  loan. 
Under  modern  procedure,  the  question  whether  the  action  should 
be  for  money  lent  or  on  the  written  contract,  is  not  vital ;  and  if 
the  defendant  is  not  surprised,  the  court  should  disregard  a  vari- 
ance.3 If  plaintiff  took  an  express  written  agreement,  and  it  is 
void  for  reasons  not  inherent  in  the  loan  itself,  or  if  it  has  been 
rescinded,  he  may  sue  for  money  lent,  ignoring  the  express  agree- 
ment.4 But  if  the  plaintiff  relies  on  a  written  promise  to  repay, 
he  cannot  resort  to  parol  evidence  to  enable  himself  to  recover 
otherwise  than  according  to  its  tenor  ;  nor  against  other  parties 
than  those  bound  by  the  writing ; 5  except  that  if  the  agreement 
is  non-negotiable  and  not  under  seal,  he  may  give  parol  evidence 
to  charge  the  undisclosed  principal  of  the  signer,6  or  to  show  him- 
self the  real  party  in  interest  though  not  named  in  the  paper.  If 
the  agreement  is  to  pay  according  to  the  terms  of  another  writing 
referred  to  without  reciting  its  terms,  the  other  writing  must 
be  produced  or  accounted  for,7  but  its  execution  need  not  be 
proved.8  A  written  agreement,  if  any,  is  the  best  evidence,  and 
should  be  produced  or  accounted  for.  Where,  however,  the  writ- 
ing was  not  made  as  embodying  the  contract  or  promise,  but  was 
merely  a  signature  or  entry  for  an  incidental  purpose,9  it  is  not 

1  Ib. ;  Rolfe  v.  Lamb,  16  Vt.  514. 

*  Veiths  v.  Hagge,  8  Iowa,  187.      But  the  peculiar  habit  of  the  lender  is  not 
primarily  competent  without  something  to  show  that  the  other  party  dealt  with 
knowledge  of  it.     Sugart  v.  Mays,  54  Geo.  554.     Where,  hewever,  plaintiff  testified 
that  he  lent  the  money  sued  for  on  a  credit  of  6  months,  without  taking  a  note, — 
Held,  that,  as  unfavorable  inference  might  be  drawn  against  this  statement,  from  the 
length  of  time,  it  was  competent  to  allow  him  to  testify  that  he  had  frequently  be- 
fore mad)  such  loans  to  other  persons.     Stolp  v.  B'air,  68  111.  541. 

3  Wright  v.  Hooker,  10  N.  Y.  58  ;  and  see  54  N.  Y.  686,  affi'g  4  Daly,  92  ;  3  N. 
Y.  S.  Ct.  (T.  <fe  C.)  443.   But  a  promissory  note  is  not  evidence  of  money  lent,  except 
as  between  the  original  parties  to  it.     Rockfeller  v.  Robinson,  17  Wend.  206,  limit- 
ing 4  Id.  411.     Nor  as  against  one  signing  expressly  as  surety.     Balcom  v.  Wood- 
rutf,  7  Barb.  13. 

4  Thus,  on  a  loan  which  was  in  itself  valid,  the  lender  may  recover,  although  he 
took  a  security  which  the  borrowers  were  forbidden  by  law  to  issue.     Curtis  v. 
Leavitt,   15   N.  Y.  9,  95,  96,  246,  296;    Vanatta  v.  State  Bank,  9  Ohio  St.  27.     So 
where  the  security  given  has  been  surrendered  by  mistake.     Baxter  v.  Paine,  16 
Gray  (Mass.)  273.     Void  securities  are  admissible  in  evidence  for  the  purpose  of 
proving  that  the3'  are  worthless.     Enthoven  v  Hoyle,  16  Jur.  272. 

5  See  note  6  (below).     But  a  deposit  with  banker.*,  for  which  the  depositor  took 
the  banker's  certificate  payable  on  presentation  and  indorsement,  is  recoverable  as  a 
loan,  and  without  indorsement  before  suit;  but  it  should  be  in  possession  ready  for 
surrender.     Umbarger  v.  Plume,  26  Barb.  4l>l. 

*  Briggs  v.  Partridge,  64  N.  Y.  362  ;    7  M.  <fc  G.  690.     As  to  negotiable  paper, 
compare  1  Wall.  234. 

'  Alabama,  <fec.  R.  R.  Co.  v.  Nabors,  37  Ala.  489. 

8  Smith  v.  N.  Y  Central  R.  R.  Co.  4  Abb.  Ct.  App.  Dec  262. 

*  As  where  the  clerk  procured  the  borrower  to  write  his  name  in  the  cash  book, 
so  as  to  know  the  correct  spelling.     Keune  v.  Meade,  3  Pet.  1,  7. 


244  ACTIONS  FOR  MONEY  LENT. 

the  primary  evidence,  but  the   transaction  may  be  proved  by 
parol. 

11.  Due  ML]— An  "  I.  O.  U."  and  a  due  bill  (e.  g.,  Due  A. 
B.  $80  on  demand)  are  competent  as  evidence  of  a' loan  j1  but 
they  are,  if  unexplained,  quite  as  appropriate  in  support  of  an 
allegation    of    an    account    stated.2      Evidence  identifying   the 
plaintiff  with  "  U."  or  "  the  bearer,"  is  not  necessary  in  the  first 
instance.3    It  is  for  defendant  to  show  that  the  paper  was  given 
to  some  one  else.4 

12.  Defendant's  check  in  favor  of  plaintiff ,~\ — A  check  drawn 
by  defendant  on  his  banker,  in  favor  of  plaintiff,  and  produced 
by  plaintiff,  is  not  by  itself  evidence  of  a  loan  by  plaintiff,  but 
rather  of  a  payment  to  him ; 5  but  with  evidence,  for  instance, 
that  it  was  drawn  on  a  bank  where  defendant  had  no  funds,  and 
was  not  intended  to  be  presented,  but  given  as  a  memorandum, 
it  will  support  the  action.    Unless  some  circumstances  are  shown 
to  excuse  the  omission,7  there  must  be  evidence  of  demand  and 
notice ; 8  but  delay  therein  is  not  material,  unless  the  drawee  has 
failed  or  the  drawer  otherwise  sustained  injury  by  the  delay.9 

13.  Defendant's  checks  on  plaintiff. ~\ — Checks  drawn  by  the 
defendant  upon  the  plaintiffs,  his  bankers,  and  paid  by  them,  are 
not  alone  evidence  of  money  lent  by  them.10  There  must  be  proof 
of  such  a  state  of  the  accounts  as  to  show  that  the  checks  rep- 
resent money  lent.11 

14.  Defendants  receipt^} — Upon  the  same  principle  defend- 
ant's  simple  receipt  for  money,  without  indicating  it  as  a  loan,  is 
competent,  but  by  itself  wholly  insufficient  to  support  the  action.11 

15.  Plaintiff's  check. ~\ — Where  a  check  drawn  by  plaintiff  in 
favor  of  defendant  is  relied  on  as  evidence  of  the  payment,  the 


1  Hinsdale  v.  Eells,  3  Conn..  37 7  ;  Hay  v.  Hide,  1  D.  Chip.  (Vt.)  214  ;  s.  p.  12  Ad. 
A  E.  641.     So  is  a  memorandum  check.     Turnbull  v.  Osborne,  12  Abb.  Pr.  N.  S.  200. 
Otherwise  of  a  mere  conditional  promise  to  pay  a  sum  of  money,  without  importing 
any  consideration.     Morgan  v.  Jones,  1  C.  <fc  J.  1 62. 

2  See  Fessenmayer  v.  Adcock,  16  M.  &  W.  449;  1  Esp.  Cas.  426;  and  see  L.  R.  1 
C.  P.  297 ;  L.  J.  10  Q.  B.  43. 

*  Fessenmayer  v.  Adcock  (above). 
4  Curtis  v.  Rickards,  1  M.  &  G.  46. 
6  Pearce  v.  Davis,  1  Moody  <fe  Rob.  365. 

6  Cushing  v.  Gore,  15  Mass.  69  ;  Currier  v.  Davis,  111  Id.  480 ;  and  see  Carter  v. 
Hope,  10  Barb.  180. 

I  As  that  the  drawer  had  no  funds  there.     Reddington  v.  Gilman,  1  Bosw.  235. 

8  Pearce  v.  Davis,  1  Moody  <fc  Rob.  365. 

9  Murray  v.  Judah,  6  Cow.  484. 

10  White  v.  Ambler,  8  N.  Y.  170,  B.  p.  Reddington  v.  Gilman,  1  Bosw.  235. 

II  The  bank  books  are  not  competent  for  the  purpose.     White  v.  Ambler  (above). 
And  the  testimony  of  a  clerk,  speaking  in  general  terms  and  from  recollection,  with- 
out the  production  of  the  books,  that  at  the  time  they  were  drawn  the  defendant's 
account  was  greatly  overdrawn,  is  not  enough.     Fletcher  v.  Manning,  12  Mees.  <fc 
W.  571.     See  p.  52  of  this  vol. 

"  McFailand  v.  Strip,  17  Ark.  41 ;  and  see  3  J.  J.  Marsh.  37. 


ACTIONS  FOR  MONEY  LENT.  245 

check  being  produced  from  plaintiff's  custody,  though  with 
marks  of  cancellation  by  the  bank,  is  not  alone  evidence  that  the 
money  was  received  by  the  defendant,  unless  it  was  payable  to 
his  order,  and  indorsed  by  him.  If-  it  be  payable  to  bearer,  it  is 
necessary  to  give  some  evidence  tending  to  show  that  defendant 
received  the  money.1  If  the  books  of  the  bank  or  a  pass-book 
are  relied  on,  they  should  be  proved  by  their  production  (or  by 
the  production  of  a  copy  of  the  entries,  where  that  is  allowed  by 
law*),  and  by  producing  the  clerk  who  made  the  entries,8  or  ac- 
counting for  his  absence,  and  proving  his  handwriting.  Proof 
that  the  money  was  actually  paid  to  the  defendant  on  plaintiff s 
check  will  not,  however,  alone  support  the  action  ;  for,  like  a  re- 
ceipt, it  is  only  evidence  of  the  payment  of  money  which  pre- 
sumptively is  in  satisfaction  of  a  debt,  and  not  a  loan.4 

16.  Plaintiff's  account  looks.'] — The  plaintiff's  accounts  are 
not  in  general  admissible  as  independent  evidence  that  money 
was  paid,5  much  less  that  a  payment  was  a  loan.  Where  plaintiff 
himself  testifies  to  the  loan,  his  own  entry  of  the  fact  of  pay- 
ment, made  contemporaneously  with  the  fact,  and  as  part  of  the 
res  gestce,  is  admissible  upon  that  ground.6  Where  the  plaintiff 
or  other  person  making  the  entry  is  not  examined  as  a  witness, 
the  entries  in  plaintiff's  books  are  not  in  general  competent  evi- 
dence of  the  payment.7  In  some  States,  however,  the  parties' 

1  Patton  v.  Ash,  7  Serg.  &  R.  125;  Fleming's  Ex"r  v.  McLain,  13  Pa.  St.  177. 
See  also  Beasley  v.  Crossley,  3  Bing.  430.  The  entry  in  the  check  book  that  it  was 
drawn  to  defendant,  is  not  alone  enough.  Freeman  v.  Kelly,  Hoffm.  90,  and  see  3 
Pick.  96. 

*  As  in  case  of  a  foreign  corporation,  see  p.  62  of  this  vol.  n.  10.  Compare 
Merrill  v.  Ithaca  R.  R.  Co.  16  Wend.  686. 

3  Patton  v.  Ash  (above).    'See  7  Gray,  191,  and  Chap,  on  PAYMENT. 

4  Cary  v.  Gerrish,  4  Esp.  Cas.  9 ;  Aubert  v.  Walsh,  4  Taunt.  293  ;  Fleming's  ExY 
v.  McLain  (above).     Proof  of  a  check  drawn  by  plaintiffs,  and  payable  to  and  indorsed 
by  defendant,  and  paid  and  produced  by  plaintiffs,  who  are  bankers,  together  with  an 
envelope  indorsed  by  defendant  with  a  memorandum  describing  the  note,  and  enume- 
rating securities,  is  sufficient  evidence  to  go  to  the  jury  to  establish  a  loan.     Union 
Trust  Co.  v.  Whiton,  9  Hun,  657. 

There  is  some  conflict  in  the  cases  as  to  whether  the  rule  of  res  gettce  will  not  jus- 
tify the  admission  of  declarations  of  the  plaintiff,  made  at  the  time  of  delivering  the 
money  or  drawing  the  check,  as  evidence  that  he  intended  a  loan  and  not  a  payment,  - 
although  made  in  the  absence  of  the  defendant.  In  some  cases  such  declarations  have 
been  excluded,  on  the  ground  that,  defendant  being  absent,  they  did  not  bind  him. 
But  the  better  view  is  that  such  declarations  are  competent  for  the  purpose  of  char- 
acterizing the  act  on  the  part  of  the  plaintiff,  it  being  understood  that  proof  that  he 
intended  a  loan  is  not  sufficient  to  support  the  action  without  additional  evidence 
proper  to  bind  the  defendant.  Huntziger  v.  Jones,  60  Penn.  St.  170. 

The  effect  of  such  declarations,  like  the  effect  of  the  act  itself,  may  depend  upon 
evidence  yet  to  be  given.  This  principle  is  fully  sustained  in  Beaver  v.  Taylor  ( 1  Wall. 
637),  where  plaintiff  was  allowed  to  give  in  evidence  the  letters  of  his  correspondent 
who  made  payments  on  his  behalf,  and  the  entries  which  plaintiff  thereupon  made  in 
his  own  books,  not  as  matters  binding  the  defendant,  but  as  part  of  the  res  ge*ta>  nec- 
essary to  the  complete  proof  of  the  act  of  the  plaintiff  in  making  the  payment. 

6  Unless  the  defendant  is  shown  to  have  had  access,  and  assented,  liimes  v. 
Barnitz,  8  Watts  (Penn. )  89,  47. 

6  The  law  making  parties  competent  does  not  exclude  their  books. 

'  Low  v.  Payne,  4  N.  Y.  247;  Veiths  v.  Hagge,  8  Iowa,  184  ;  Maine  v.  Harper,  4 
Allen  (Mass.)  116. 


24:6  ACTIONS  FOR  MONET  LENT. 

own  books  are  admissible  for  small  sums,  with  certain  suppletory 
proof.1  The  reason  why  the  parties'  own  books  are  not  admitted 
to  prove  loans  is,  that  they  are  not  the  usual  method  of  preserv- 
ing evidence  of  loans,  and  an  exception,  therefore,  to  the  rule 
excluding  them  has  recently  been  recognized  in  the  C&se  of  the 
books  of  bankers  and  others,  where  there  is  evidence  that  the 
payment  of  money  constituted,  at  the  time  the  charges  were 
made,  the  ordinary  business  of  the  party,  and  that  the  charges  in 
question  were  made  in  the  ordinary  course  of  that  business/ 

IT.  Character  in  which  the  parties  dealt.~] — Where  the  action 
is  by  a  person  suing  in  his  individual  right,  and  the  proof  is 
of  a  debt  due  him  in  his  representative  capacity  or  conversely, 
the  plaintiff  cannot  recover  without  an  amendment  in  this  respect, 
unless  the  case  is  such  that  a  payment  to  the  plaintiff  will  protect 
the  defendant  irrespective  of  the  variance.8 

18.  Connected  and  collateral  agreements.'] — "Where  the  loan 
was  made  upon  a  promise  to  repay  or  to  give  security  for  repay- 
ment, which  is  void  by  the  statute  of  frauds,4  as  well  as  where  a 
stipulation  for  a  term  of  credit  was  obtained  by  fraud  of  the  bor- 
rower,5 or  upon  a  condition  which  remains  unperformed  (as  dis- 
tinguished from  an  alternative  contract),6  or  upon  a  special  agree^ 
ment  for  security  which  has  been  wholly  rescinded  by  the  parties,1 
the  loan  may  be  recovered  without  regard  to  the  special  agree- 
ment, and  plaintiff  may  prove  the  fraud,  etc.,  though  not  alleged, 
as  part  of  the.  res  gestce*  If  the  lender  received  a  collateral 
security,  this  fact  does  not  suspend  his  remedy  ;9  and,  he  need  not 
prove  an  offer  to  return  it  before  suit ;  it  is  enough  that  he  holds 
it  ready  to  be  surrendered ; 10  but,  if  it  be  negotiable  paper,  and 
indorsers  or  other  parties  contingently  liable  have  been  dis- 
charged, it  must  appear  that  they  were  not  discharged  by  neglect, 


1  See  the  chapter  on  SALES  OF  GOODS,  Ac. 

8  Cummings  v.  Hill's  Adm'r,  35  Iowa,  253.  But  in  the  courts  where  such  evidence 
SB  received,  it  should  appear  that,  from  the  nature  of  the  transactions  or  course  ot 
dealing,  or  other  circumstances,  that  the  case  falls  within  the  general  principle  which 
justihe-i  the  admission  of  the  party's  own  books  in  other  cases,  namely,  that  better 
evidence  is  not  obtainable.  Younaj  v.  Jones,  8  Iowa,  219. 

3  Thus,  defendant  cannot  defeat  a  recovery  by  showing  that  the  funds  were  held 
by  the  lender  in  a  trust  capacity,  and  that  he  had  no  power  to  loan  them,  unless  de- 
fendant shows  also  that  by  reason  of  a  successor  in  the  trust  having  already  been 
appointed,  or  otherwise,  a  payment  to  the  plaintiff  will  not  protect  the  defendant. 
See  also  chapters  on  EXECUTORS  AND  ADMINISTRATORS,  OFFICERS,   RECEIVERS,  AND 
TRUSTEES. 

4  Swift  v.  Swift,  46  Cal.  266 ;  Binion  v.  Browning,  26  Mo.  270. 
6  Nelson  v.  Hyde,  66  Barb.  59. 

6  Bristow  v.  Needham.  9  Mecs.  <fe  W.  729. 

7  James  v.  Cotton,  7  Bing.  266. 

8  Nelson  v.  Hyde  (above).     Compare  Peck  v.  Root.  5  Hun,  547  ;  French  v.  White, 
6  Duer,  254. 

9  Brengle  v.  Bushey,  40  Md.  141,  s.  c.  17  Am.  R.  586;  Lewis  v.  U.  S.  92  U.  S.  (2 
Otto),  623,  and  cases  cited. 

10  Scott  v.  Parker,  1  Q.  B,  809;  Lawton  v.  Newland,  2  Stark.  73. 


ACTIONS   FOR  MONEY  LENT.  247 

or  at  least  that  defendant  has  lost  nothing  by  such  neglect.1  If 
the  lender  has  entered  into  an  agreement  for  satisfaction  or  pay- 
ment which  has  failed  by  default  of  the  borrower  to  fulfill  it,  or 
was  vitiated  by  fraud  on  his  part,  the  lender  may  recover  in  dis- 
regard of»  such  agreements.3 

19.  Mortgage.'] — Where   a  mortgage   of    real    or    personal 
property  is  taken  to  secure  payment,  ii  a  written  acknowledgment 
of  a  debt  on  the  part  of  the  defendant  is  embodied  in  it  or 
taken  with  it,  the  lender  may  recover  thereon  without  first  en- 
forcing the  mortgage.3     But  where  the  only  writing  expresses 
that  the  mortgage  was  for  the  purpose  of  securing  a  sum  specified, 
not   indicated  to  be  a   debt,  the  mortgagor  is  presumptively 
not  personally  liable.4 

20.  Medium    of   repayment.'] — Where  there    is  an  express 
promise  to  repay  in  a  particular  currency — e,  g.,  to  pay  so  many 
"  dollars " — parol  evidence  is  not  admissible  to  prove  that  any 
other  than  lawful  money  of  the  country  was  intended,  unless  the 
contract  is  shown  to  have  been  made  in  a  country  where  another 
currency  or  currency  using  that  designation  for  coin  of  a  differ- 
ent value,  was  authorized.     In  such  case  parol  evidence  is  admis- 
sible to  explain  what  was  intended,5  and  to  prove  the  equivalent 
value.6 

21.  Defenses  /  Disproving  loan.~\ — If  the  making  of  any  loan 
•whatever  by  plaintiff  is  denied,7  evidence  of  his  poverty  at  the  time 
is  competent  as  tending  to  disprove  it.8     But  upon  the  question 


1  Marston  v.  Boynton,  6  Mote.  (Mass.)  127. 

9  We-tcott  v.  Keeler,  4  B<>sw.  664;  Arnold  v.  Crane,  8  Johns.  79. 

8  Elder  v.  Rouse,  15  Wend.  218. 

4  Culver  v.  Sisson,  3  N.  Y.  264  ;  Weed  v.  Covill,  14  Barb.  242  ;  and  see  1  Duer, 
890.  To  the  contrary,  Coor  v.  Grace,  10  Smedes  <fe  M.  (Miss.)  434;  and  see  4  Q.  B. 
182.  And  in  such  case  it  has  been  held  that  parol  evidence  that  the  transaction  was 
aloan  is  inadmissible.  Waite  v.  Dimick,  10  Allen,  364.  See  1  N.  Y.  R.  S.  738,  §  139. 

6  Thoringt  >n  v.  Smith,  CHASE,  Ch.  J.,  8  Wall  1. 

e  As  to  what  kind  of  evidence  of  intention  would  suffice,  see  Confederate  Note 
Case,  19  "Wall.  648,  659.  Proof  of  promise  to  pay  in  Indian  currency,  no  variance, 
under  declaration  alleging  promise  to  pay  in  lawful  money  of  Great  Britain.  Har- 
rin«-ton  v.  MacMorris,  6  Taunt.  2'28.  See,  as  to  valuation,  Story  Confl.  of  L.  §  310; 
Rice  v.  Ontario  Steamboat  Co.  66  Barb.  384;  Gunther  v.  Colin,  3  Daly,  125;  Col- 
ton  v.  Dunham,  2  Pai^e,  2o7  ;  Stranaghan  v.  Youman,  65  Barb.  392 ;  R.  S.  of  U.  S. 
§§  35G4,  3505  ;  Schmidt  v.  Ilerfurth,  6  Robt.  124. 

1  As  to  distinction  between  loan  and  gift,  see  Hick  v.  Keats,  4  B.  <fc  C.  71 ;  Hill 
V.  Wilson,  L.  R.  8  Ch.  888,  and  p.  151-155  of  this  vol. 

8  Dowling  v.  Dowling,  10  Ir.  C.  L.  23C  ;  Darling  v.  Westmoreland,  52  N.  H.  401, 
S.  c.  13  Am.  R.  56,  and  cases  cited.  Whether  the  alleged  borrower  may  support  his 
denial  by  proof  that  he  had  no  need  to  borrow  is  disputed ;  but  where  he  has  been 
allowed  to  do  so,  the  other  party  may  rebut  it.  Thus  where  defendant  testified 
he  had  no  need  to  borrow,  he  had  received  money  from  A.,  proof  that,  on  the  con- 
trary, after  the  alleged  loan  he  remitted  money  to  A.  is  competent  Stolp  v.  Blair, 
68  111.  541.  On  the  question  whether  the  money  used  to  pay  off  an  incumbrance  on 
defendant's  property  was  lent  to  him  or  to  the  person  who  assumed  to  act  as  his 
agent  in  receiving  and  applying  it,  defendant  may  prove  that,  as  between  them  the 
debt  was  the  debt  of  such  agent,  Henry  v.  Wilkes,  31  N.  Y.  662. 


248  ACTIONS  FOR  MONEY  LENT. 

whether  the  loan  was  made  to  the  defendant  or  another  person, 
evidence  of  the  insolvency  or  poverty  of  the  defendant  is  not 
competent  for  the  purpose  of  showing  that  the  credit  was  prob- 
ably not  given  to  him/  unless  it  appears  that  something  passed 
between  the  parties  on  the  subject  of  pecuniary  responsibility.2 
Where,  however,  such  evidence  has  been  admitted  as  a  circum- 
stance tending  to  show  that  he  borrowed  it,  is  competent  for 
him  to  show  in  rebuttal  that  he  borrowed  for  his  wants  from 
another  person.8  Evidence  of  the  defendant's  declarations  at 
about  the  time  of  the  transaction,  as  to  his  pecuniary  affairs,  are 
not  admissable ; 4  nor  is  the  fact  that  he  made  no  entry  in  his 
books.5 

22.  Illegality.'] — To  defeat  the  action  on  the  ground  that  the 
loan  was  made  in  execution  or  in  furtherance  of  an  illegal  pur- 
pose, it  is  not  enough  to  show  that  the  lender  knew  of  an  illegal 
purpose  of  the  borrower  in  respect  to  the  application  of  the 
money  when  borrowed,  unless  the  lender  shared  the  intent.6 
For  the  purpose  of  establishing  such  intent,  parol  evidence  is 
competent  in  contradiction  or  variance  of  a  writing.7 

The  borrower's  abandonment  of  the  purpose,  without  any 
change  or  act  on  the  part  of  the  lender,  does  not  render  the  ille- 
gal loan  valid  so  that  the  lender  can  recover.8  Where  the  loan 
was  made  by  transferring  a  thing  in  action,  founded  on  a  consid- 
eration illegal  or  contrary  to  public  policy  as  between  the  orig- 
inal parties,  or  a  fund  which  was  the  proceeds  of  an  illegal  trans- 
action in  which  the  borrower  and  the  lender  were  previously 
engaged,  the  plaintiff  may  nevertheless  recover,  if  the  loan  was  a 
new  transaction  the  assent  to  which  did  not  involve  assent  to  the 
previous  illegal  contract.9 


1  See  chapter  on  Money  Paid.  To  make  an  exception  on  this  point  available  it 
should  be  specific.  61  N.  Y.  630. 

*  Second  Nat'l  Bank  v.  Miller,  2  N.  Y.  S.  Cfc.  (T.  &  C.)  107 ;  and  see  63  N.  Y.  639 ; 
Green  v.  Disbrow,  56  N.  Y.  336,  rev'g  7  Lans.  381. 

3  Burlew  v.  Hubbell,  1  Supm.  Ct.  (T.  <fe  C.)  235. 

4  Douglass  v.  Mitchell,  35  Penn.  St.  440,  415. 
•Id. 

6  Bond  v.  Perkins,  4  Heisk.  (Tenn.)  364 ;  and  see  Gregory  v.  Wilson,  36  N.  J.  315, 
8.  c.  13  Am.  R.  448 ;  Earl  v.  Clute,  2  Abb.  Ct.  App.  Dec.  1. 

7  1  Greenl.  Ev.  330,  note. 

8  Kingsbury  v.  Fleming,  66  N.  C.  524. 

9  Wintermute  v.  Stinson,  16  Minn.  468 ;  Hamilton  v,  Canfield,  2  Hall,  526 ;  Plan- 
ters' Bank  v.  Union  Bank,  16  Wall.  483  ;  and  see  Brooks  v.  Martin,  2  Wall.  81. 


CHAPTER  XIII. 

MONET  PAID  TO  DEFENDANT'S  USE. 

1.  Grounds  of  action.  11.  — by  oral  evidence. 

2.  Previous  request  or  previous  promise     12.  —  by  producing  defendant's  order  in 

to  reimburse.  favor  of  third  person. 

3.  Parol  evidence  to  vary  a  writing.  13.  —  by  plaintiffs  checks  or  accounts. 

4.  Subsequent  promise  to  reimburse.  14.  —  by  the  payee's  receipt,  or  surren- 
6.  Agent's  action  against  principal.  der  of  evidence  of  debt. 

6.  Obligation   to   pay   what   defendant    16.  Judgment  against  plaintiff  in  action 

ought  rather  to  have  paid.  of  which  defendant  had  notice. 

7.  Surety's  action  against  principal  or     16.  Medium  of  payment. 

co-surety.  17.  Amount. 

8.  Implied  promise  to  indemnify.  18.  Source  of  the  fund  paid. 

9.  Action  between  parties  to  negotiable     19.  Object  and  application  of  the  payment. 

paper.  20.  Demand  and  notice. 

10.  Proof  of  payment.  21.  Defences. 

1.  Grounds  of  action.1'] — Plaintiff  must  showing  payment8  of 
money  or  its  representative,  to  the  use  of  defendant ;  and  an  ex- 
press or  implied  assent  on  the  part  of  defendant  to  the  making 
of  the  payment  ;8  which  is  usually  proved  by  either  (1)  a  previous 
request,  or  (2)  a  subsequent  promise  to  reimburse,  or  (3)  legal 
compulsion  on  plaintiff  to  pay  what  defendant  ought  to  have 
paid,  or  (4)  other  circumstances  showing  that  he  did  not  officiously 
volunteer,  but  was  justified  in  making  the  payment  without  express 
assent ;  and  then  the  law  is  said  to  imply  a  request  or  promise.4 


1  The  action  was  often  resorted  to  at  common  law,  as  a  substitute  for  a  bill  in 
equity,  and  was  encouraged  wherever  equity  would  compel  defendant  to  repay  to 
plaintiff  money  the  latter  had  been  compelled  to  pay  for  his  benefit.  Chan.  WAL- 
WORTFI,  Wright  v.  Butler.  6  Wend.  290. 

*  Under  a  complaint  for  money  paid,  evidence  to  charge  defendant  as  indorser  or 
guarantor  cannot  be  received.  Cottrell  v.  Conklin,  4  Duer,  46. 

3  Thus,  if  an  officer  holding  process  against  a  defendant,  voluntarily  pays  it  him- 
self, he  cannot  recover  the  amount  from  defendant  (Jones  v.  Wilson,  3  Johns.  434 ; 
Beach  v.  Vanden burgh,  10  Id.  361);  but,  if  he  pays  it  at  the  request  of  the  defend- 
ant, he  may  recover  it.     Leonard  v.  Ware,  4  N.  J.  L.  (1  South.)  160;    Moseley  v. 
Boush,  4  Rand.  (Va.)  392. 

4  For  instance,  a  party  met  to  dine  at  a  tavern,  and  after  dinner  all  but  one  left 
without  paying,  whereupon  he  paid  for  all,  and  he  was  allowed  to  recover.     8  East, 
614.     So  where  a  wife  dies  in  the  absence  of  her  husband,  one  who  humanely  pays 
the  necessary  funeral  expenses  may  recover  them  of  the  husband.     Bradshaw  v. 
Beard,  12  C.  B.  N.  S.  844,  and  cases  cited.     See,  also,  Exall  v.  Partridge  and  En- 
gland v.  Marsden,  paragraph  6,  note  1.     The  rule  forbidding  recovery  by  an  officious 
volunteer  has  lost  much  of  its  intended  efficacy  to  prevent  one  man  from  constituting 
another  his  debtor  without  the  latter's  consent,  since,  in  most  cases  of  pre-existing 
liability,  one  may  now  take  an  assignment  and  sue  as  assignee.     In  that  case  the  ac- 
tion will  not  be  for  money  paid,  but  on  the  original  demand.     The  rule  still  applies 
(1)  where  the  demand  was  not  assigned  but  satisfied,  (2)  where  it  wns  not  assignable 
in  its  nature,  (3)  where  it  was  contracted  or  created  only  by  plaintiffs  act.     Where 

[249] 


250  MONEY  PAID  TO  DEFENDANTS  USE. 

If  the  facts  which  thus  raise  an  implied  request  or  promise  are 
alleged,  an  allegation  of  the  request  or  promise  is  not  necessary.1 

2.  Previous  Request,  or  previous  Promise  to  Reimburse.'] — It  is 
not  necessary  to  prove  that  the  request  or  promise  was  formally 
expressed  ;  it  may  be  inferred  from  circumstances,2  and  the  rela- 
tion of  the  parties  (principal  and  agent,  for  instance) 8  often  sup- 
plies the  place  of  a  specific  request. 

If  the  request  or  promise  was  made  by  a  third  person,  there 
must  be  something  to  show  that  he  was  authorized  to  bind  the  de- 
fendant.4 Where  several  persons  are  associated  for  a  common 
purpose,  but  not  being  partners,  a  request  made  by  one  to  ad- 
vance money  for  the  benefit  of  all  is  enough,  if  there  be  circum- 
stances from  which  his  agency  for  the  others  may  be  inferred 5 

"Where  a  previous  request  is  proved,  it  is  not  necessary  to 
prove  that  the  payment  was  beneficial  to  the  defendant ;  he  is 
equally  liable  whether  it  discharged  a  debt  of  his  or  constituted 
a  loan  or  gift  to  a  third  person.6  The  evidence  must  bring  the 
payment  within  the  scope  of  the  request.7 


the  demand  was  assignable,  and  the  evidences  of  it  were  delivered  up  to  plaintiff,  an 
assignment  may  be  presumed,  in  furtherance  of  justice,  if  there  was  any  privity  be- 
tween plaintiff  and  defendant.  See  p.  2  of  this  vol. ;  and,  for  instances,  Duffy  v. 
Duncan,  32  Barb.  587;  Mills  v.  Watson,  1  Sweeny,  374. 

1  Farron  v.  Sherwood,  19  N.  Y.  227;  Cobb  v.  Charter,  32  Conn.  358;  Pomeroy 
on  Rem.  §  517,  <fec.,  and  cases  cited. 

4  Thus,  where  the  plaintiff  accompanied  the  defendant  when  the  latter  was  making 
a  purchase,  and  said  in  his  presence,  to  the  shopkeeper,  "  if  he  does  not  pay  for  it  I 
will,"  and  defendant  was  silent,  it  was  held  that,  although  the  promise  was  void  for 
not  being  in  writing,  yet  plaintiff  having  paid,  as  in  honor  bound,  on  defendant's  de- 
fault, his  payment  might  be  deemed  made  at  defendant's  request.  Alexander  v. 
Vane,  1  M.  &  W.  511. 

3  Paragraph  5. 

4Burdick  v.  Glass  Co.  11  Vt.  19;  McElroy  v.  Melear,  7  Coldw.  (T.)  140;  Martin 
T.  Peters,  4  Robt.  434.  See  last  chapter. 

6  Whether  the  mere  relation  of  joint  contractors  in  an  enterprise  is  enough  to 
make  the  request  of  one  support  an  action  for  money  paid  for  all  is  not  agreed. 
Tradesman's  Bank  v.  Astor,  11  Wend.  87  ;  Porter  v.  McClure,  15  Id.  191 ;  Chrisman 
V.  Long,  1  Ind.  212;  and  see  Bassford  v.  Brown,  22  Me.  9  ;  Moss  v.  Jerome,  10  Bosw. 
220.  The  true  principle  seems  to  be  that  among  persons  who  have  consented  to 
share  a  common  responsibility,  there  is  prima  facie  authority  in  each  from  each 
other  to  discharge  the  common  burden.  Add.  on  Contr.  Bk.  2,  ch.  8,  §  2.  The  dis- 
tinction is  between  authority  to  incur  liability — which  is  not  presumed — and  author- 
ity to  discharge  any  liability  duly  assumed.  See  pp.  188  and  189  of  this  vol.  and 
notes.  Thus,  where  several  persons  jointly  employ  attorney  or  counsel  (Edger  v. 
Enapp,  6  Scott  N.  R.  713),  or  agree  on  an  arbitrator  without  fixing  the  liability  for 
expenses,  and  one  pays  the  expenses  in  order  to  take  up  the  award,  he  may  recover 
one  half.  Mnrsack  v.  Webber,  6  Hurls.  &  N.  1. 

6  Brittain  v.  Lloyd,  14  M.  <fc  W.  762;  Emery  v.  Hobson,  62  Me.  578,  s.  c.  16  Am. 
R.  513.     But  if  the  payment  was  solely  for  the  benefit  of  the  plaintiff  himself,  as 
where  A.  promised  B.  to  share  the  costs  of  a  suit  on  beh'alf  of  B.  if  B.  would  bring  it, 
and  it  did  not  appear  that  A.  could  have  had  any  interest  in  the  result, — Held,  that 
B.  could  not  recover  on  the  promise  without  proof  that  his  bringing  the  suit  was  in- 
duced by  the  promise.     Knox  v.  Martin,  8  N.  II:  154. 

7  Thus  to  charge  defendant  on  a  promise  to  pay  what  may  be  needed  for  the  support 
of  a  minor,  beyond  his  wages,  there  must  be  proof  that  he  needed  the  money  paid. 
Merritt  v.  Seaman,  6  N.  Y.  168. 


MONEY  PAID  TO  DEFENDANT'S  USE.  251 

3.  Parol  evidence  to  vary  a  writing.'] — If  the  plaintiff  proves 
a  written  contract  with  defendant,  which  expressly  or  in  effect 
required  plaintiff  to  bear  the  expense  in  question,  plaintiff  cannot 
prove  a  parol  agreement  made  at  the  same  time,  that  the  defend- 
ant would  pay  it ;  *  but  he  may  prove  such  an  agreement  made 
prior  to  the  written  obligation,  unless  it  be  such  as  was  merged 
in  the  latter.2    So  he  may  prove  a  parol  request  or  promise  not 
contradicting  or  varying  the    legal  effect  of   the    instrument, 
though  it  formed  the  consideration,8  or  a  usage  which  adds  another 
term  to  the  agreement.4  In  other  words,  the  entire  agreement  may 
be  proved,  notwithstanding  a  part  of  it  was  reduced  to  writing.5 
So  ne  may  prove  a  parol  request  orpromise  made  as  a  condition 
of  delivering   the  instrument.6     Where  an  express  promise  is 
proved,  the  tact  that,  at  the  time  of  making  it,  the  parties  agreed 
to  reduce  it  to  writing,  but  never  did  so,  does  not  defeat  the  ac- 
tion.7 

4.  Subsequent  Promise  to  reimburse.'] — "Where  the  plaintiff's 
payment  was  wholly  voluntary  or  officious,  he  may  recover  on 
proof  of  a  promise  ®  to  reimburse,  founded  on  sufficient  consid- 
eration.    There  is  sufficient  consideration  within  this  rule,  if  the 
precedent  payment  was  beneficial  to   defendant,9  or  if  it  dis- 
charged a  legal  obligation  against  him,  or  if  it  discharged  what 
the  law  recognizes  as  a  moral  obligation.10    It  is  not  essential  to 


1  Thus  where  builders,  in  order  to  complete  work  they  had  contracted  in  writing 
to  do,  paid  a  license  fee,  held  that  they  could  not  give  parol  evidence  of  a  contem- 
poraneous promise  of  the  employer  to  pay  it.  They  must  perform  their  written 
contract.  If  the}'  were  not  bound  to  make  the  payment,  they  would  be  justified  in 
ceasing  work  because  of  his  neglect  to  pay  it.  Thorp  v,  Ross,  4  Abb.  Ct.  App.  Dec. 
416,  WOODRUFF,  J. 

9  Thus  one  of  several  jointly  bound,  or  one  of  several  co-sureties,  suing  another 
for  indemnity,  may  prove  a  parol  agreement  made  at  or  prior  to  their  written  obliga- 
tion, that  defendant  would  indemnify  him.  Barry  v,  Ransom,  12  N.  Y.  462;  Robison 
v.  Lyle,  10  Barb.  512. 

3  See  linger  v.  Jacobs,  7  Hun,  220,  and  cases  cited. 

4  See,  for  this  principle,  Broom's  Phil,  of  the  Law,  83,  <fec.,  and  cases  cited;  Seago 
v.  Deane,  4  Bing.  459. 

6  See  Hope  v.  Balen,  58  N.  Y.  380,  affiv  35  Super.  Ct.  (J.  &  S.)  458.  Compare 
Johnson  v.  Oppenheim,  55  N.  Y.  280,  affi'g  35  Super.  Ct.  (J.  &  S.)  440;  Brewers' 
Fire  Ins.  Co.  v.  Burger,  10  Hun,  58,  and  cases  cited. 

6  See  Remington  v.  Palmer,  62  N.  Y.  31,  rev'g  1  Hun,  619,  s.  c.  4  Supm.  Ct.  (T. 
<fc  C.)  6H6. 

1  Stover  v.  Flack,  30  N.  Y.  64. 

8  An  express  promise,  made  not  to  the  plaintiff,  but  to  another  person  who  was 
privy  to  the  transaction,  is  enough.    Hassinger  v.  Solms,  5  S.  it  11.  4.»    But  a  mere 
admission  to  a  stranger  is  not. 

9  Thus  if  one  by  mist  >ke  pays  his  neighbor's  tax,  this  is  a  good  consideration  for 
a  promise  by  the  latter  to  repay.     Nixon  v.  Jenkins,   1  Hilt.  318;    but  plaintiff 
must  prove  a  legal  tax.     Weinberger  v.  Fauerbach,  14  Abb.  Pr.  N.  S.  91.     The  de- 
fendant's promise  to  repay  one  who<  volunteered  to  pay  an  execution  may  be  im- 
plied from  the  defendant's  insisting  on  the  payment  as  satisfaction,  and  having  the 
execution  quashed  in  consequence.     Roundtree  v.  Holloway,  13  Ala.  N.  S.  357. 

10  As  to  what  constitutes  a  moral  obligation,  see  Gtmlding  v.  Davidson,  26  N.  Y. 
604,  rev'g  28  Barb.  438,  and  cases  cited ;  "Freeman  v.  Robinson,  9  Vroom,  383.  s.  o. 
20  Am.  li.  3&9.  If  the  original  consideration  was  beneficial,  and  plaintiff  w.ia  le- 


252  MONEY  PAID  TO  DEFENDANTS  USE. 

show  an  express  promise,  except  where  the  only  consideration  was 
a  moral  obligation  ;  but  the  promise  may  be  inferred  by  the  jury 
from  an  account  rendered  to  which  no  objection  was  made.1  A 
promise  made  by  one  of  several  former  partners  after  dissolution 
is  not  enough  as  against  the  others.2  In  the  case  of  joint  debtors 
not  partners,  a  promise  by  one  is  not  enough  as  against  the 
others  to  revive  a  legal  obligation  once  barred.* 

5.  AgenCs  action  against  principal^ — A  request  or  agency  is 
not  presumed  from  the  mere  fact  that  plaintiff  paid  defendant's 
debt ; 4  and  agency  being  shown,5  the  agent  must  show  payments 
pursuant  to  his  instructions  or  within  his  authority.  In  an  action 
lor  money  paid  he  cannot  recover  for  property  bought  by  him- 
self as  his  own,  and  afterward  transferred  to  account  of  his  prin- 
cipal.8 On  the  question  whether  the  act  of  the  agent  was  done 


gaily  liable  to  pay,  defendant's  subsequent  promise  to  repay  will  sustain  an  action, 
although  it  was  made  after  he  had  once  been  wholly  exonerated.  Hassinger  v. 
Solms,  5  S.  <fe  R.  4. 

1  See  Quincey  v.  White,  63  N.  Y.  370,  and  cases  cited ;  Coe  v.  Button,  1  Serg.  <k 
R.  398;  McLellan  v.  Longfellow,  34  Me.  552. 

*  Baker  v.  Stackpoole,  9  Cow.  420;  Van  Keuren  v.  Parmelee,  2  N.  Y.  523;  Me- 
Elroy  v.  Melear,  7  Coldw.  (T.)  140.    But  see  for  authorities  contra,  p.  219  of  this  vol. 

*  Lewis  v.  Woodworth,  2  N.  Y.  512.     Whether  it  is  enough  in  any  other  case,  see 
p.  189  of  this  vol. 

4  Stephens  v.  Broadnax,  5  Ala.  N.  S.  258. 

6  As  to  how  far  circumstantial  evidence  of  agency  is  competent, — see  Richards  v. 
Millard,  56  N.  Y.  674,  rev'g  1  Supm  Ct.  (T.  &  C.)  247.  The  agency,  though  it  be  in 
the  purchase  of  land,  may  be  proved  by  parol.  Baker  v.  Wainwright,  36  Md.  336. 
Compare  Levy  v.  Brush,  45  N.  Y.  589,  rev'g  8  Abb.  Pr.  N.  S.  418.  The  fact  that 
plaintiff  acted  as  ship's  husband  is  sufficient  prima  fade  evidence  of  his  appointment; 
and  if  an  owner  relies  on  his  refusal  to  be  answerable  for  expenses  incurred,  he  must 
show  that  his  notice  was  given  before  the  work  was  commenced.  Chappell  v.  Bray, 
6  H.  <fe  N.  145. 

6  Field  v.  Syms,  2  Robt.  35,  s.  p.  Beck  v.  Ferrara,  19  Mo.  30.  Not  even  on  proof 
of  a  usage  of  his  trade  to  do  so,  not  shown  to  be  known  to  defendant.  Day  v. 
Holmes,  103  Mass.  306. 

According  to  Hoy  v.  Reade,  1  Sweeny,  626,  an  a-jent  employed  to  purchase 
goods,  and  suing  to  recover  his  advances  and  charges,  makes  a  prima  facie  case  by 
proof  of  a  purchase  pursuant  to  principal's  direction,  the  amount  expended  therefor, 
and  the  disbursements,  charges  and  commissions,  and  that  the  same  were  necessary 
and  usual;  and  if,  before  action  brought  by  the  agent,  he  has  wrongfully  converted 
the  goods  purchased,  such  conversion  does  not  defeat  the  action,  unless  the  principal, 
if  he  still  remain  the  owner  of  the  property,  counter-claims  the  value.  According  to 
the  opinion  of  MILLER,  J.,  in  Rosenstock  v.  Tormey,  62  Md.  169,  s.  c.  3  Am.  R.  125, 
in  a  stockbroker's  action  to  recover  deficiency  on  resale  by  him,  on  his  principal's 
default,  of  stock  bought  on  his  order,  plnintiff  must  prove  actual  purchase  and  notice 
to  defendant  thereof  given  at  a  time  when  he  or  his  agents  had  the  stock  or  the 
proper  indicia  of  title  actually  in  hand  and  ready  to  be  delivered ;  and  that,  upon 
such  notice  and  request  for  payment  of  price  and  commissions,  the  defendant  did  not 
pay  for  the  stock,  and  that,  after  reasonable  time  and  giving  notice  of  intent  to  re- 
Bell,  the  stock  was  actually  sold,  either  at  public  auction  or  at  a  sale  publicly  and 
fairly  made  at  the  stock  exchange  or  board  where  such  stocks  were  usually  sold,  at 
its  fair  market  price  on  the  day  of  sale.  It  is  not  necessary  to  prove  a  tender,  nor 
to  prove  a  resale  at  a  public  stock  board  [citing  25  Md.  242]  ;  but  while  evidence  of 
the  usage  of  dealers  in  stocks  is  admissible,  (if  the  broker  was  not  limited  to  a  speci- 
fied authority,)  to  show  the  manner  in  which  the  order  may  be  performed,  it  is  not 
admissible  to  set  up  against  one  not  shown  to  be  cognizant  of  the  usage,  a  usage 


MONEY  PAID  TO   DEFENDANT'S  USE.  253 

in  good  faith  in  pursuance  of  his  supposed  duty,  the  information 
and  advice  upon  which  he  acted  is  competent  as  part  of  the  rea 
grestce.1  For  the  purpose  of  showing  the  manner  of  executing  the 
defendant's  order,  the  plaintiff's  instructions  to  those  by  whom 
lie  carried  it  out,  his  letters  to  a  sub  agent  &c.,  are  competent  in 
his  own  favor  as  part  of  the  res  gestae?  If  it  is  shown  that  he 
acted  in  good  faith,  supposing  that  he  was  acting  under  the  in- 
structions and  for  the  interest  of  his  principal,  the  latter,  if  he 
received  the  benefit  of  the  transaction,  must  show  that,  when  he 
was  informed  of  the  act,  he  gave  notice  of  his  repudiation  of  it 
within  a  reasonable  time.8  vVliat  is  a  reasonable  time  is  a  ques- 
tion for  the  court,  if  the  facts  are  undisputed ;  but  if  the-  evi- 
dence is  conflicting,  it  is  a  mixed  question  of  law  and  fact,  and 
the  court  should  instruct  the  jury  upon  the  several  hypotheses 
insisted  on  by  the  parties.4  Costs  and  expenses  for  which  the 
agent  has  been  held  liable  to  third  persons, when  acting  in  good 
faith  and  without  fault,  on  behalf  of  his  principal,  he  may  pay 
and  recover  from  the  latter  without  proof  of  a  special  request 
or  authority  to  pay  them.5  The  fact  of  advances  having  been 
shown,  an  account  rendered  by  plaintiff  to  the  defendant  stat- 
ing their  amount,  and  not  objected  to  by  the  defendant,  is 
prima  facie  evidence  of  the  amount,6  and  throws  on  defendant 
the  burden  of  proving  that  the  advances  were  less  or  the  fund 
on  hand  greater.7 

6.  Obligation  to  pay  what  defendant  ought  rather  to  have 
paid.'] — Neither  a  previous  request  to  pay,  nor  a  subsequent 
promise  to  reimburse,  need  be  proved,  where  plaintiff  shows 


which  the  law  deems  unreasonable;  e.  g.,  a  fictitious  purchase  or  sale.  Id.  The 
plaintiff  need  not  show  affirmatively  that  those  from  whom  he  purchased  were  actu- 
ally in  possession  of  the  stock  at  the  time  of  the  purchase,  in  order  to  prevent  the 
stockjobbing  act  from  rendering  the  contract  void.  Genin  v.  Isaacson,  6  N.  Y.  Leg. 
Obs.  213. 

1  See  Law  v.  Cross,  1  Black,  533,  539. 

s  Rosenstock  v.  Tormey,  32  Md.  169,  s.  a  3  Am.  R.  131.  But  his  sub-agent's  let- 
ters to  him  are  not  competent  primary  evidence  of  the  making  the  purchase.  Id. 
Compare,  however,  Beaver  v.  Taylor,  1  Wall.  637 ;  and  see  3  Wall.  149  ;  Kahl  v. 
Jansen,  4  Taunt.  565  :  Fairlie  v.  Hastings,  10  Ves.  128;  Betham  v.  Benson,  1  Gow. 
45;  Langhorn  v.  Allnutt,  4  Taunt.  611. 

3  Law  v.  Cross,  1  Black,  633  ;  Hoyt  v.  Thompson,  19  N.  Y.  218. 

4  Wiggins  v.  Burkham,  10  Wall.  129. 

8  Stocking  v.  Sage,  1  Day,  622,  SWIFT,  Ch.  J. ;  Powell  v.  Trustees  of  Newburgh, 
19  Johns.  284,  SPENCER,  Ch.  J. ;  and  see  Douglas  v.  Moody,  9  Mass.  548.  If  the  lia- 
bility arose  by  reason  of  the  agent's  mistake  of  law  and  consequent  error  in  duty  in 
a  matter  which  the  employer  properly  trusted  to  him,  he  cannot  recover.  Capp  v. 
Topham,  6  East,  892.  Otherwise  if  it  was  imposed  by  law  on  him,  and  it  was  by  his 
delay  that  the  principal  became  directly  liable.  Hales  v.  Freeman,  4  Moore,  2 1 ; 
Bate  v.  Payne,  13  Ad.  <fe  E.  N.  8.  (Q.  B.)  900. 

6  Mertens  v.  Nottebohms,  4  Gratt.  (Va.)  163,  168,  173.  So  an  account  of  sales 
made,  and  rendered  to  one  of  the  parties  to  a  joint  adventure,  by  the  consignee  and 
common  agent  of  both  parties  to  sell,  is  admissible  in  the  action  of  the  former  against 
the  other  party,  for  money  paid,  to  prove  the  loss.  Peltier  v.  Sewall,  12  Wend.  386. 

1  Ledoux  v.  Porche,  12  Rob.  543. 


254:  MONEY  PAID  TO  DEFENDANT'S  USE. 

that,  either  by  compulsion  of  law,  or  to  relieve  himself  from 
liability,  or  to  protect  himself  from  damage,  he  has  been  obliged 
to  pay  what  defendant  himself  ought  to  have  paid.1  The  most 
common  instances  of  this  kind  are  where  a  surety  or  one  entitled 
to  indemnity2  pays  the  obligation  of  the  defendant  and  sues  for 
reimbursement,  or  where  one  of  several  joint  obligors,  having 
paid  the  whole  debt,  sues  his  co-obligors  for  contribution.  In 
this  class  of  cases,  the  fact  that  plaintiff  was  legally  required 
to  pay  defendant's  debt,  stands  in  the  place  of  request  or  prom- 
ise. But  it  is  not  enough  to  prove  that  plaintiff  paid  under  the 
mistaken  supposition  that  he  was  legally  liable.3 

7.  Surety's  action  against  principal  or  co-surety. ~] — If  the  in- 
strument in  which  several  persons  are  bound  to  another  describes 
some  of  them  as  sureties  for  others,  or  if  the  signatures  of  some 
state  that  they  are  sureties  for  others,  this  is  prima  facie  evi- 
dence, as  between  the  obligors,  of  their  relation.4  If  the  signa- 
ture of  one  does  not  indicate  for  which  of  several  signing  abso- 
lutely he  is  a  surety,  it  may  be  presumed,  in  the  absence  of  other 
evidence,  either  in  the  tenor  of  the  instrument  or  in  the  extrinsic 
circumstances,  that  he  was  surety  for  all  previously  signing.5  But 
between  the  parties  who  are  either  principals  or  sureties,  the 
question  of  suretyship  in  a  written  instrument  is  open  to  parol 
proof.6  Such  evidence  does  not  vary  the  instrument,  but  is  col- 
lateral to  it,  simply  showing  the  relation  of  the  parties.7  Hence, 


1  Bailey  v.  Bussing,  28  Conn.  455.  The  leading  case  on  the  general  principle  is 
Exall  v.  Partridge,  8  T.  R.  314.  There  plaintiff,  at  defendant's  request,  left  his  coach 
in  defendant's  possession,  and  while  there  it  was  lawfully  distrained  by  defendant's 
landlord  for  non-payment  of  rent,  and  plaintiff  paid  the  rent  to  secure  his  carriage, 
and  recovered  it  of  defendant.  But  in  England  v.  Marsden,  L.  R.  1  C.  P.  529,  the 
owner  of  furniture,  for  his  own  advantage  in  letting  it,  left  it  on  the  defendant's 
premises,  and  it  was  distrained  in  the  same  manner.  Held,  that  his  payment  of  the 
rent  was  not  compulsory  within  the  rule.  So,  where  a  part  owner  of  lands  is  obliged 
to  pay  the  tax  on  the  whole,  to  protect  his  share,  he  may  recover  from  the  other 
owners  their  just  proportion,  without  showing  any  assent  on  their  part.  Graham  v. 
Dunnigan,  2  Bosw.  516  ;  but  if  the  tax  collector  pays  a  man's  tax,  he  cannot  recover 
it  without  some  evidence  of  the  assent  of  the  latter.  Overseers  of  Wallkill  v.  Over- 
seers of  Mamakating,  14  Johns.  87. 

s  If  there  is  a  written  obligation  to  indemnify,  the  action  will  usually  be  upon 
that,  and  not  an  action  merely  for  money  paid  to  defendant's  use. 

3  Bancroft  v.  Abbott,  3  Allen  (Mass.)  524;  Whiting  v.  Aldrich,  117  Mass.  582. 
But  one  who,  under  the  mistaken  supposition  that  he  is  a  trustee,  pays  money  for  the 
estate,  may  be  entitled  to  reimbursement.  Morrison  v.  Bowman,  29  Cal.  337.  And 
one  who  by  mistake  or  ignorantly  pays  defendant's  debt,  may  recover  it,  if  de- 
fendant had  notice  and  suffered.it  to  be  done.  Ely  v.  Norton,  2  Abb.  Ct.  App.  Dec. 
19. 

*  Harris  v.  Warner,  13  Wend.  400. 

•  See  Sisson  v.  Barrett,  6  Barb.  199,  2  N.  Y.  406. 

6  Sisson  v.  Barrett,  6  Barb.  200,  2  N.  Y.  406. 

7  Blake  v.  Cole,  22  Pick.  97;  Barry  v.  Kamson,  12  N.  Y.  462;  Apgar  v.  Hiler,  4 
Zabr.  812;  Ilubbard  T.  Gurney,  64  N.  Y.  457,  and  see  11  Moak's  Eng.   R.  41,  n. ; 
Monson  v.  Blakely,  40  Conn.  652,  s.  o.  16  Am.  R.  94.      The  reason  of  "the  rule  for- 
bidding parol  evidence  to  vary  a  writing, — viz. :  that  the  parties  may  be  presumed 
to  have  embodied  all  the  terms  of  their  contract  in  the  writing, — cannot  justly  apply 


MONEY  PAID  TO  DEFENDANTS  USE.  255 

parol  evidence  is  competent  to  show  that  one  who  signed  without 
qualification  was  in  fact  surety,  and  for  whom ; t  and  that  one  who 
signed  with  qualification  was  in  fact  a  principal ; 2  and  that  one 
who  signed  as  surety  generally  was  a  co-surety  with  one  who  signed 
without  qualification,3  or  that  he  signed  under  promise  of  indem- 
nity.* Such  evidence  is  admissible  alike  in  support  of  an  action 
by  one  claiming  to  be  surety,  for  reimbursement ;  or  by  one  claim- 
ing to  be  co-surety,  for  contribution ;  and  in  defense  of  one  sued 
as  principal,  for  contribution,  and  claiming  to  be  surety  ;  or  sued 
as  co-surety,  and  claiming  to  be  indemnified.5  The  promise  to 
indemnify  may  be  proved  by  parol,  for  it  is  not  a  promise  to 
answer  for  the  debt,  &c.,  of  a  third  person,  within  the  meaning 
of  statute  of  frauds.6  For  this  purpose  evidence  of  declarations 
made  either  at  the  time  of  negotiating  the  loan,  or  at  the  time  of 
signing  the  obligation  are  equally  competent  as  part  of  the  res 
gestce?  It  is  not  enough  for  a  surety  to  show  that  he  became 
surety  voluntarily  without  the  request  or  assent  of  the  alleged 
principal.8  Evidence  of  defendant's  admission  that  plaintiff  was 
his  surety  is  competent ;  but  to  charge  several  defendants  (not 
partners),  such  admission  or  declaration  of  one  made  in  the  ab- 
sence of  the  others  is  not  competent  against  the  others,  unless 
there  is  something  to  show  that  the  declarant  had  authority  to 
speak  for  them.9 

When  the  relation  of  suretyship  or  of  co-suretyship  is  shown, 
the  law  implies  the  promise  to  reimburse  10  or  to  contribute.11  A 
co-surety  may  recover  full  indemnity,  but  not  without  proof  of 


to  the  arrangements  between  several  parties  upon  one  side  as  to  how  they  will 
bear  the  resulting;  liability,  as  among  themselves,  unless  the  contract  manifest  an 
intention  to  define  their  relations  toward  each  other. 

1  Robison  v.  Lyle,  10  Barb.  512,  HARRIS,  J. ;  Mohawk  <fe  Hudson  R.  R.  Co.  Co.  v. 
Costigan,  2  Sandf.  Ch.  306. 

2  Robson  v.  Lyle  (above) ;  see  also  Sisson  v.  Barrett,  6  Barb.  199. 

3  Sisson  v.  Barrett  (above). 

4  Barry  v.  Ransom,  12  N.  Y.  462. 
B  Same  cases. 

6  Barry  v.  Ransom,  12  N.  Y.  462;  Horn  v.  Bray,  51  Ind.  555,  8.  o.  19  Am.  R. 
742,  and  cases  cited.  Contra,  Bissig  v.  Britton,  69  Mo.  204,  s.  o.  21  Am.  R.  379.  So, 
an  agreement  between  two  separate  indorsers  that  if  one  will  pny  in  goods  the  other 
will  reimburse  him,  may  be  proved  by  parol.  Sanders  v.  Gillespie,  59  N.  Y.  250 ; 
affi'g  64  Barb.  628. 

°  Robison  v.  Lyle,  10  Barb.  512,  HARRIS,  J.,  1851 ;    8.  p.  12   K  Y.  462,  DENIO,  J. 

8  Gager  v.  Babcock,  48  N.  Y.  154  ;  McPherson  v.  Meek,  30  Mo.  345  ;  Carter  v. 
Black,  4  Dev.  <fe  B.  L.  426.  But  tacit  assent  is  enough.  Alexander  v.  Vane,  1  M.  <fc 
W.  511.  The  requirement  of  the  law  that  a  creditor  should  give  security  for  the 
support  of  a  debtor  imprisoned  on  his  execution,  if  the  debtor  make  oath  of  his  own 
inability,  has  been  held  sufficient  to  enable  a  creditor,  paying  pursuant  to  security 
BO  given,  to  recover  of  the  debtor.  Plummer  v.  Sherman,  29  Me.  655. 

•  Warner  v.  Price,  8  Wend.  397,  and  see  p.  188  of  this  vol. 

10  Holmes  v.  Weed,  19  Barb.  128;  Vartie  v.  Underwood,  18  Id.  561.     If  there  are 
several  principals,  the  liability  of  either  to  the  surety  is  not  qualified  by  evidence 
that,  as  between  the  principals,  the  one  was  not  liable  for  the  whole  debt.     Westcott 
V.  King,  14  Barb.  32. 

11  Norton  v.  Coons,  3  Den.  130,  and  cases  cited. 


256  MONEY  PAID  TO  DEFENDANTS  USE. 

an  agreement,1  or  a  request  and  benefit  raising  an  equity  which, 
under  the  circumstances,  is  equivalent.3  Mere  evidence  that 
plaintiff  became  co-surety  at  defendant's  request  is  not  enough.8 

It  is  enough  for  the  surety  to  prove  that  his  payment  was  under 
a  fixed  legal  liability ;  he  need  not  prove  legal  compulsion  to 
pay,  as  by  suit  brought;4  nor  need  he  show,  to  charge  a  co-surety 
for  contribution,  that  the  principal  is  unable  to  pay.5  The  im- 
plied promise  may  be  rebutted  by  circumstances/  The  mere 
fact  that  the  defendant  became  surety  at  the  request  of  plaintiff 
is  not,  however,  sufficient  to  rebut  the  presumption  of  a  promise 
to  contribute  ; 7  nor  is  the  fact  that  he  did  not  sign  till  a  long 
time  after  the  other  parties  were  bound ; 8  but  evidence  that 
that  the  plaintiff,  upon  requesting  the  defendant  to  join,  express- 
ly promised  to  indemnify  him,9  or  that  he  should  be  put  to  no 
loss,10  or  evidence  that  plaintiff  received  a  personal  benefit  from 
the  execution  of  the  obligation,  as  where  the  money  raised  went 
into  his  hands,11  is  sufficient  to  exonerate  the  defendant  from  lia- 
bility to  contribute. 

8.  Implied  promise  to  indemnify. ,] — If  plaintiff  incurred  the. 
liability  by  innocently  complying  with  the  request  or  direction 
of  the  defendant,  (whether  he  was  the  agent  ®  of  defendant,  or 
not 1S),  in  an  act  which  would  have  been  lawful  if  plaintiff  had  the 
right  or  authority  which  he  claimed  or  assumed,  the  law  implies 
a  promise  on  defendant's  part  to  indemnify  plaintiff.  No  such 
promise  is  implied  when  plaintiff  knew  the  act  was  illegal.14 
Where  the  wrong  done  consisted  in  negligence  merely,  plaintiff, 
who  has  been  obliged  to  pay,  may  recover,  on  proof  that,  as  be- 
tween him  and  defendant,  the  latter  was  the  one  actually  negli- 
gent, and  the  former  only  constructively  liable  therefor.15  In 
either  class  of  cases,  the  judgment  against  plaintiff  and  defend- 
ant, holding  them  jointly  liable  to  the  third  person,  and  which 


1  McKee  v.  Campbell,  27  Mich.  497. 

*  See  Daniel  v.  Ballard,  2  Dana  (Ky.)  296. 

3  McKee  v.  Campbell  (above).     Contra,  see  Byers  v.  McClanahan,  6  GilL  &  T. 
499. 

4  Mauri  v.  Heffernan,  13  Johns.  58  ;  compare  Stone  v.  Hooker,  9  Cow.  154. 

5  Goodall  v.  Wentworth,  20  Me.  322.     Contra,  Atkinson  v.  Stewart,  2  B.  Monr. 
848. 

6  Bagott  v.  Mullen,  32  Ind.  332,  s.  c.  2  Am.  R.  351. 

7  Id.  (disapproving  Chit,  on  Cont.  669,  and  see  note  10,  on  p.  255,  of  this  voL 

8  In  this  case,  eight  months.     McNeil  v.  Sandford,  3  B.  Monr.  (Ky.)  11. 

9  Thomas  v.  Cook,  8  B.  <fe  C.  728  ;  Cutter  v.  Emery,  37  N.  H.  567.     See  Garner  v. 
Hudgins,  46  Mo.  399,  s.  c.  2  Am.  R.  520. 

10  Apsjar  v.  Hiler,  4  Zabr.  812. 

11  Daniel  v.  Ballard,  2  Dana  (Ky.)  296,   s.  p.  21  Pick.  196,   32  Ind.  832,   8.  c.  2 
Am.  R.  355. 

JS  Howe  v.  Buffalo,  Ac.  R.  R.  Co.  37  N.  Y.  297,  affi'g  38  Barb.  124. 

13  Dugdale  v.  Lovering,  L.  R.  10  C.  P.  196,  8.  c.  12  Moata  Eng.  R.  816. 

14  Peck  v.  Ellis,  2  Johns.  Ch.  181 ;  Miller  v.  Fenton,  11  Paige,  18. 

"  Gray  v.  Boston  Gas-Light  Co.  114  Mass.  149,  s.  c.  19  Am.  R.  324. 


MONEY  PAID  TO  DEFENDANT'S  USE.          257 

judgment  plaintiff  has  paid,  may  be  explained  by  parol  evidence 
to  show  the  relation  of  the  parties  to  the  tort.1  If  the  verdict  or 
judgment  which  plaintiff  has  paid  was  in  an  action  against  both, 
or  against  one  and  defended  at  his  request  by  the  other,  or  de- 
fended by  plaintiff,  after  notice  and  request  to  defendant  to  as- 
sume its  defense,  it  is  evidence  against  defendant  of  the  amount 
of  damages.8 

9.  Action  between  parties  to  negotiable  paper.'] — An  action  on 
the  bill  or  note  is  founded  directly  on  the  instrument,  and  a  re- 
lease or  other  discharge,  though  given  before  maturity,  may  bar 
the  action.3  But  an  action  for  money  paid  on  it,  is  on  a  cause  of 
action  which  did  not  arise  until  the  payment,  and  which  consists 
in  the  right  of  one  paying  money  for  the  benefit  of  another,  pur- 
suant to  his  request  or  direction,  to  have  it  refunded ; 4  and  al- 
though the  negotiable  paper,  pursuant  to  the  terms  of  which  the 
payment  was  made,  may  be  part  of  the  necessary  evidence,5  the 
contract  sued  on  does  not  inhere  in  the  paper,  but  exists  outside 
of  it ;  and  variance  in  the  description  of  the  paper  is  but  of  tri- 
fling importance.6  Presumptively  the  right  to  claim  re-imburse- 
ment  arises  in  the  inverse  order  in  which  the  names  of  the  par- 
ties appear  on  the  paper.7  The  promise  to  re-imburse  may  be 
proved  by  parol,  though  contradictory  to  the  apparent  relation 
arising  from  the  paper ;  as  where  an  accommodation  maker  sues 
the  payee,8  or  an  accommodation  acceptor  sues  the  drawer.9  So 
a  parol  agreement  made  between  indorsers  at  the  time  of  indors- 
ing, that  they  will  shar*e  any  liability  thereon,  may  be  proved,  to 
support  an  action  by  one  against  the  other  for  contribution. 
Proof  that  an  acceptance  was  made  without  funds  rebuts  this 
presumption  arising  from  the  order  of  names  on  the  paper,  and 
raises  the  presumption  of  such  a  promise  by  the  drawer  to  re-im- 
burse. This  latter  presumption  again  is  rebutted  by  evidence 
that  the  acceptance  was  by  express  agreement  for  accommodation 


1  Bailey  v.  Bussing,  28  Conn.  455 ;  Armstrong  County  v.  Clarion  County,  66  Penn. 
St.  218,  8.  o.  5  Am.  R.  368. 

2  See  Inhabitants  of  Westfield  v.  Mayo,  122  Mass.   100,   8.  o.  23  Am.  R.  292 ; 
Grand  Trunk  Rw.  Co.  v.  Latham,  63  Me.  177. 

3  Cuyler  v.  Cuyler,  2  Johns.  ]  86. 

4  Wright  v.  Garlinghouse,  26  N.  Y.  639. 

6  Id. 

•  Cameron  v.  "Warbritton,  9  Ind.  351. 

7  Watson  v.  Shuttle  worth,  53  Barb.  357 ;  Sweet  v.  McAllister,  4  Allen,  853. 

8  Seymour  v.  Minturn,  17  Johns.  175. 

•  Wright  T.  Garlioghouse  (above) ;.  Ross  v.  Espy,  66  Penn.  St.  481,  8.  o.  5  Am.  R. 
894  ;  Phillips  v.  Preston,  6  How.  U.  S.  278.     But  such  a  parol  agreement  between 
maker  and  indorser  is  not  competent  for  the  purpose  of  showing  that  the  indorser  is 
not  entitled  to  recover  against  the  maker,  if  the  indorser  was  under  no  legal  obliga- 
tion for  the  consideration,  and  refused  to  contract  except  in  that  form.     Crater  v. 
Binninger,  45  N.  Y.  645,  affi'g  54  Barb.  155.    To  charge  one  who  signed  as  surety 
for  the  drawer,  there  must  be  some  evidence  that  he  was  a  party  to  the  request  to 
accept  for  accommodation.     Wright  y.  Garlinghouse,  26  N.  Y.  639,  rev'g  27  Barb. 
474. 

17 


258          MONEY  PAID  TO  DEFENDANTS  USE. 

of  the  payees,  or  other  parties  who  were  to  be  looked  to  for  pay- 
ment. It  is  only  in  the  absence  of  an  express  agreement  that  the 
law  implies  a  promise  on  the  part  of  the  drawer.1  In  the  action 
for  money  paid,  evidence  of  demand  and  notice  of  non-payment 
is  necessary  to  charge  the  defendant  if  it  would  have  been  neces- 
sary in  an  action  against  him  by  the  same  plaintiff  directly  upon 
the  bill  or  note  itself ; 2  otherwise  not.  But  a  judgment  recov- 
ered by  a  former  holder  against  the  defendant  is  competent  evi- 
dence from  which  to  infer  that  he  had  notice.3 

10.  Proof  of  Payment] — To  sustain  this  action  (as  distin- 
guished from  an  action  on  a  contract  to  indemnify  from  liability, 
&c.),  actual  payment  must  be  shown.*    Proof  of  the  mere  incur- 
ring of  liability* is  not  sufficient,5  even  as  to  incidental  items,6  nor 
is  it  made  sufficient  by  the  fact  that  the  creditor  accepted  the 
plaintiff's  ^obligation  in  discharge  of  the  defendant's  liability,7  un- 
less the  new  obligation  was  negotiable  paper.8 

11.  —  J)y  oral  evidence] — A  witness  of  the  fact  of  payment 
may  testify  to  it,  and,  if  an  actor  in  the  transaction,  to  the  pur- 
pose and  object  of  it,  under  the  same  restrictions  as  in  the  case 
of  a  loan.9    But  he  must  speak  from  his  knowledge  of  the  trans- 
action, not  from  that  subsequently  derived  from  receipts  or  other 
memoranda.10    But  memoranda  of  payment,  made  by  the  witness 
at  or  presently  after  the  time,  may  be  used  by  him  in  testifying, 
and  thereupon  put  in  evidence.11    If  it  be  proved  that  a  receipt 
was  given,  it  need  not  (unless  the  receipt  .of  a  public  officer)  be 
produced  or  accounted  for  in  order  to  let  in  oral  evidence  of  the 
fact  of  payment,13  unless  its  terms  become  material.    Evidence  of 
the  oral  admissions  or  declarations  of  the  payee  is  not  competent 
against  the  defendant,13  unless  there  is  something  to  connect  the 


1  Thurman  v.  Van  Brnnt,  19  Barb.  410,  HAREIS,  J. 

8  Wilbur  v.  Selden,  6  Cow.  162. 

3  Hamilton  v.  Veach,  19  Iowa,  419.     Even  though  plaintiff  was  not  a  party  to 
the  action  in  which  the  judgment  was  had.     Keeler  v.  Bartine,  12  Wend.  110.    Com- 
pare Beck  v.  Hunter,  3  La.  Ann.  641. 

4  But  under  an  agreement  to  pay  personal ' expenses  on  a  journey,  such  expenses 
as  he  avoided  by  means  of  facilities  personal  to  himself,  may  be  proved.     Moore  v. 
Remington,  34  Barb.  427. 

5  Amslie  v.  Wilson,  7  Cow.  662. 

•  Whiting  v.  Aldrich,  117  Mass.  582. 

'  The  giving  of  a  bond,  though  accepted  in  satisfaction,  is  not  enough  (Maxwell 
v.  Jameson,  2  B.  <fc  Aid.  51,  and  cases  cited;  Gumming  v.  Hackley,  8  Johns.  202; 
Ainslie  v.  Wilson,  7  Cow.  662) ;  nor  is  a  bond  and  warrant  of  attorney  (Taylor  v. 
Higgins,  8  East,  169);  nor  indorsing  a  bill  given  to  make  a  compromise  and  release 
defendant's  property  (Douglas  v.  Moody,  9  Mass.  543) ;  nor  even  the  fact  that  plaintiff 
has  been  charged  in  execution  (Powell  v.  Smith,  8  Johns.  249). 

*  See  p.  263  (below). 

9  Pages  240,  241  of  this  vol. 

10  Keith  v.  Mafit,  38  111.  303;   and  see  Scarborough  v.  Reynolds,  12  Ala.  252,  263. 

11  See  p.  261  (below). 

"  Berry  v.  Berry,  17  N.  J.  L.  440 ;  Jackson  v.  Stackhouse,  1  Cow.  122. 
13  See  Gandolfo  v.  Appleton,  40  N.  Y.  533. 


MONEY  PAID  TO  DEFENDANT'S  USE.  259 

defendant  with  him,  or  with  the  declaration  offered,  or  unless  the 
declaration  was  part  of  the  res  gestce  of  an  act  properly  in  evi- 
dence.1 

12.  —  by  producing  defendant's  order  in  favor  of  third  per- 
son.]— The  production  from  plaintiff's  possession  of  an  order  or 
draft  for  the  money,  shown  to  have  been  executed  by  defendant,8 
and  payable  to  a  third  person  specified  therein,3  and  which  is  shown, 
or  may  be  presumed  to  have  been  previously  in  the  possession  of 
the  payee  (and  this  is  presumed  in  the  case  of  a  draft  or  order 
in  the  common  form,  but  not  in  the  case  of  a  letter  or  note  ad- 
dressed to  the  plaintiff),  is  prima  facie  evidence  of  payment  ac- 
cording to  its  tenor  by  the  plaintiff,4  although  it  be  not  indorsed  nor 
accompanied  by  a  receipt.5    The  presumption  may,  however,  be 
rebutted  by  evidence  of  facts  tending  to  explain  the  possession  as 
acquired  without  payment, — as,  for  instance,  proof  of  a  usage  to 
leave  drafts  with  the  payee,  for  acceptance,  in  which  case  the 
question  whether  the  plaintiff's  possession  is  evidence  of  payment 
is  one  for  the  jury/    The  order  is  not,  however,  evidence  of 
payment  of  plaintiff's  money  to  defendant's  use,  but  is  presump- 
tively evidence  of  payment  from  funds  of  defendant  inferred  to 
be  in  plaintiff's  hands.     There  must  be  some  evidence  to  rebut 
this  presumption.7 

13.  —  ty  plaintiff's  check  or  accounts.] — The  same  rules  ap- 
ply in  proving  payment  by  check,  as  in  an  action  for  money  lent.8 
Evidence  of  defendant's  admission,  even  by  silence,  when  he  was 
told  by  plaintiff  that  he  had  sent  a  check,  is  competent  to  go  to 
the  jury,  although  the  payment  be  one  not  presumably  within  the 
personal  knowledge  of  defendant,  especially  after  great  lapse  of 
time.9 


1  See  p.  245,  note  4. 

2  Lane  v.  Farmer,  13  Ark.  (Eng.)  63. 

3  Zeigler  v.  Gray,  12  Serg.  <fe  R.  42.     Compare  Close  v.  Fields,  9  Tex.  442,  13 
Id.  623,   2  Id.  232 ;    where  the  same  rule  was  applied  to  a  draft  with  the  payee's 
name  in  blank. 

4  Blount  v.  Starkey,  1  Tayl.  N.  C.  110,  s.  c.  2  Hayw.  75  ;  Succession  of  Penny,  14 
La.  An.  194,  2  Greenl.  Ev.  475,  §  519. 

5  Zeigler  v.  Gray  (above).     If  a  receipt  be  indorsed,  its  execution  should  be 
proved,  but  if  the  omission  to  prove  it  is  not  objected  to,  the  effect  of  the  possession 
of  the  order  as  evidence  of  payment  is  not  impaired.     Weidner  v.  tichweigert,  9 
Serg.  &  R.  385. 

'  Close  v.  Fields  (above). 

7  Alvord  v.  Baker,  9  Wend.  323.     Where  it  is  the  usual  course  of  business  for  a 
factor  to  accept  bills  drawn  by  his  principal  and  return  them  to  him,  to  be  used  for 
raising  money  as  he  pleases,  the  factor's  possession  of  such  bills  bearing  the  blank 
indorsement  of  the  principal,  is  sufficient  prima  facie  evidence  of  ownership  to  enable 
the  factor  to  recover  from  the  principal  the  money  paid  thereon  at  maturity,  in  the 
absence  of  proof  of  an  unlawful  diversion.     Rice  v.  Isham,  4  Abb.  Ct.  App.  Dec.  37. 

8  Pages  244-246  of  this  vol.     Proof  of  a  check  drawn  by  plaintiff  in  favor  of  A., 
and  paid  to  A.,  is  evidence  of  payment,  without  proof  that  plaintiff  delivered  the 
check  to  A.     Mountford  v.  Harper,  16  M.  <fc  W.  825. 

•  Price  v.  Burva,  6  Weekly  R.  40. 


260  MONEY  PAID  TO  DEFENDANT'S  USE. 

14.  —  by  the  payee's  receipt  or  surrender  of  evidence  of  debt.] 
— Where  there  is  no  evidence  connecting  the  plaintiff's  request 
or  obligation  with  the  particular  person  to  whom  the  payment 
was  made, — as,  for  instance,  in  the  case  of  an  agent's  purchases 
in.  the  market,  or  payments  for  necessaries, — tlie  receipt  or  other 
admission  of  the  payee  is  not  alone  competent  evidence  of  the  pay- 
ment, as  against  defendant ;  *  for  the  payee  or  other  witness  should 
be  produced  ;2  but  it  is  admissible  in  connection  with  other  com- 
petent evidence  of  the  fact  of  payment, — such  as  evidence  that 
plaintiff's  check  was  sent  to,  and  received  by,  the  payee, — and  that 
the  receipt  was  given  in  consequence,8  and  as  part  of  the  trans- 
action.4 If  the  payee  is  not  living,  however,  his  receipt  is  com- 
petent, as  a  declaration  against  interest.5  On  the  other  hand, 
when  the  person  to  whom  the  payment  is  made  is  designated  by 
the  contract  of  the  defendant, — as  in  case  of  an  order  in  favor  of 
such  person,6 — or  is  pointed  out  by  law, — as  in  case  of  a  payment 
of  taxes7  or  for  public  lands,8 — then  the  receipt  of  such  person,  its 
execution  being  duly  proved,  is  competent  evidence  01  the  fact 
of  payment.  Hence,  where  the  payment  was  in  discharge  of  a 
pre-existing  liability  of  defendant  (such  liability  or  his  admission 
of  it  being  of  course  otherwise  proven),  the  appropriate  evidence 
of  that  discharge,  as  between  him  and  the  payee,  is  competent 
evidence  against  him  and  in  favor  of  the  plaintiff.9  If  the  debt 
paid  subsisted  in  a  written  instrument,  shown  to  have  been  in 
possession  of  the  payee  thereof,10  the  plaintiffs  production  of 
the  instrument,  with  the  written  receipt,  if  any,  (its  execution  by 
the  payee  being  duly  proved  if  required,)  is  competent  evidence 


1  Cutbush  v.  Gilbert,  4  Serg.  &  R.  555;  Roll  v.  Maxwell,  6  N.  J.  L.  (2  South.)  493. 
Compare  Steph.  Dig.  Ev.  37. 

2  Printup  v.  Mitchell,  17  Geo.  558 ;   Davidson  v.  Berthoud,  1  A.  K,  Marsh.  (Ky.) 
353. 

s  Carmarthen,  &c.  Rw.  Co.    v.  Manchester,  <fec.  Rw.  Co.  L.  R.   8  C.  P.  685; 
Leatherbury  v.  Bennett,  4  Harr.  &  M.  392. 

*  Davis  v.  Shreve,  8  Litt.  (Ky.)  260 ;  Keykendall  v.  Greer,  3  Coldw.  (Tenn.)  463 ; 
Dunn  v.  Slee,  Holt  N.  P.  C.  399 ;  Harrison  v.  Harrison,  9  Ala.  73. 

6  Davies  v.  Humphreys  (6  Mees.  &  W.  153,  8.  c.  4  Jur.  250),  even  if  plaintiff 
might  but  does  not  testify  (Middleton  v.  Melton,  10  B.  &  C.  317,  825) ;  and  has  even 
been  held  evidence  of  all  material  facts  stated  in  it, — e.  ^.,that  the  debt  was  originally 
incurred  for  the  benefit  of  one  of  the  joint  debtors.     Davies  v.  Humphreys  (above). 

8  Paragraph  12  (above). 

7  Hall  v.  Hall,  1  Mass.  101.     One  who  sues  for  re-imbursement  for  paying  by  mis- 
take an  assessment  on  his  neighbor's  land,  must  give  some  evidence  of  a  legal  assess- 
ment (Weinberger  v.  Fauerbach,  14  Abb.  Pr.  N.  S.  91);  otherwise  as  to  regular  an- 
nual taxes  (Bowman  v.  Downer,  28  Vt.  532 ;  and  see  Hall  v.  Hall,  1  Mass.  101,  where 
the  judges  were  equally  divided  on  the  point). 

*  Cluggage  v.  Swan,  4  Binn.  (Penn.)  150;    and  see  Russell  v.  Whiteside,  5  HI.  (4 
Scam.)  7. 

9  See  Sluby  v.  Champlin,  4  Johns.  461.     Satisfaction  of  a  decree  may  be  proved 
without  producing  a  copy  of  the  decree  itself.     Davidson  v.  Peck,  4  Mo.  438. 

10  Mygatt  v.  Pruden,  29  Geo.  43. 


MONEY  PAID  TO  DEFENDANT'S  USE.  '  261 

of  payment.1  And,  in  any  case,  the  receipt  given  by  the  payee 
is  competent  evidence  of  the  fact  of  payment  whenever  there  is 
other  evidence  connecting  defendant  with  the  payee  and  the  debt 
paid, — as,  for  instance,  where  defendant  requested  plaintiff  to 
settle  for  him  with  a  specified  creditor,2  or  where  the  payment 
was  of  a  joint  obligation  of  both  parties,8  or  a  debt  for  which 
plaintiff  was  bound  as  surety.4 

W  hen  the  receipt  of  the  payee  is  thus  competent,  it  is  prima 
facie  sufficient  evidence  of  payment,  without  producing  or  ac- 
counting for  the  the  absence  of  the  payee. 

If  the  one  who  gave  the  receipt  is  produced,  he  may  use  it  to 
refresh  his  memory,  or  to  testify  from,  and  the  receipt  then 
becomes  admissible,  independently  of  any  other  ground  of 
competency,  if  it  was  made  by  the  witness  at  or  presently  after 
the  time  of  payment.5 

15.  Judgment  against  plaintiff  in  action  of  which  defendant 
had  notice.'] — When  the  money  sued  for  was  paid,  pursuant  to  a 
judgment  recovered  by  the  third  person  against  plaintiff,  the 
judgment  is  competent  evidence  against  the  defendant  to  prove 
the  fact  of  the  judgment  and  the  sum  paid.  If  the  action  was 


1  See  Jessup  v.  Gray,  7  Blatchf.  332 ;    Bayne  v.  Stone,  4  Esp.  13 ;   Bracken  v. 
Miller,  4  Watts  &  S.   102,  112;    Chandler  v.  Davis,  47  N.  H.  462;   even  without 
plaintiffs  testimony.     Mills  v.  Watson,  1  Sweeny,  374.     Contra,  Mills  v.  Hyde,  19 
Vt.  59.     And  is  the  best  evidence,  and  should  be  produced  or  accounted  for  unless 
defendant  has  admitted  the  payment  and  expressly  or  tacitly  promised  to  re-imburse 
it,  in  which  case  the  burden  may  be  thrown  on  him  to  prove  the  instrument.     Chap- 
pell  v.  Bray,  6  H.  &  N.  145. 

2  Sherman  v.  Crosby,  11  Johns.  148;    approved  in  3  Wall.  148.     The  person  to 
whom  performance  of  an  act  is  agreed  to  be  made,  is  competent  to  acknowledge  such 
performance.    Fenner  v.  Lewis,  10  Johns.  38.     Whether  the  principle  stated  in  the 
text  applies  to  receipts  of  firm  creditors  in  favor  of  one  who  assumed  to  pay  the  firm 
debts  generally,  is  not  well  settled.    Newell  v.  Roberts,  13  Conn.  63;    Scott  v.  Rus- 
sell, 36  Geo.  484. 

3  Ballance  v.  Frisbie,  3  111.  (2  Scam.)  63.     Contra,  Thomas  v.  Thomas,  2  J.  J. 
Marsh.  60,  64;  Ford  v.  Smith,  5  Cal.  314. 

4  Prnther  v.  Johnson,  3  Harr.  <fe  J.  487 ;    approved  in  3  Wall.  149 ;  Sluby  v. 
Champlin  and  Mills  v.  Watson,  cited  above.     Receipts  by  the  holder  of  a  note,  en- 
tered on  an  execution  issued  at  his  suit  against  plaintiff  as  indorser,  are  competent  to 
prove  payment  as  against  the  maker.     Garnsey  v.  Allen,  27  Me.  866.    But  a  mere 
receipt  of  the  sheriff  is  not  evidence  that  plaintiffs  payment  discharged  the  execution 
against  the  defendant.     Stone  v.  Porter,  4  Dana  (Ky.  )  207.     In  the  case  of  money 
charged  in  the  accounts  of  one  acting  in  a  trust  capacity,  the  receipts  of  the  payees 
are  sufficient,  especially  if  the  payees  are  dead  or  beyond  jurisdiction.     Shearman  v. 
Atkins,  4  Pick.  283 ;    approved  in  3  Wall.  148,  as  authority  for  treating  them  as 
primary  evidence.    The  tax  collector's  receipts  are  higher  evidence  of  the  adminis- 
trator's payment  of  taxes  on  the  estate,  than  the  testimony  of  a  witness  to  the  fact 
of  payment.     The  witness's  testimony  is  not  competent  if  the  receipts  can  be  pro- 
duced.    Hall  v.  Hall,  1  Mass.  101.     The  production  of  the  bond  to  the  collector,  on 
which  plaintiff  was  surety,  with  the  collector's  receipts,  are  competent,  and  prima 
facie  sufficient.     Sluby  v.  Champlin,  4  Johns.  461. 

5  See  McCormick  v.  Pennsylvania  Central  R  R.  Co.  49  N.  T.  303,  rev's  3  Alb.  L. 
J.  129;    Lathrop  v.  Bramhall,  64  N.  Y.  865  ;    Halsey  v.  Sinsebugh,  15  Id.  485,  489. 
As  to  case  of  contfmporaneous  memorandum  by  another  witness,  or  contemporaneous 
declaration  of  witness  to  supply  what  he  has  since  forgotten,  see  Shear  v.  Van  Dyke, 
10  Hun,  528. 


MONEY  PAID  TO  DEFENDANT'S  USE. 

defended  by  the  plaintiff,1  the  judgment  is  evidence  of  the  facts  on 
which  it  was  founded,  in  the  following  cases,  viz.,  if  defendant  was 
joined  with  plaintiff  as  a  co-party  in  the  action ; 2  or  had  agreed  to 
abide  the  result,  or  covenanted  against  the  consequences  of  such 
an  action  ; 3  or  was  primarily  liable  as  the  one  for  whose  debt  or 
actual  default  the  action  was  brought,4  and  had  notice  from  de- 
fendant of  its  pendency,  and  reasonable  opportunity  to  assume 
the  defence  if  he  desired.5  In  these  cases  the  judgment  recov- 
ered is  conclusive  evidence  against  the  present  defendant,  both  as 
to  the  damages  and  costs.6  In  other  cases  of  actions  against  plaintiff 
alone,  the  judgment  paid,  with  proof  of  the  relation  of  suretyship 
or  indemnity,  is  competent  pmma  facie  evidence  of  the  amount 
due  from  defendant,7  although  mere  be  no  provision  to  that 
effect  in  defendant's  contract. 

Since  the  principal  is  not  presumptively  bound  by  the  judg- 
ment, as  he  was  not  a  party  to  the  action,  the  surety,  to  make  it 
evidence  against  him,  is  bound  to  show  aliunde  that  it  was  rendered 
against  him  upon  a  transaction  against  which  the  principal  was 
bound  to  indemnify  him.8 

The  same  rules  apply  whether  the  judgment  was  foreign  or 
domestic.9 


1  Otherwise,  of  a  judgment  confessed,  note  3  (below). 

9  Davidson  v.  Peck,  4  Mo.  438  ;  Hare  v.  Grant,  6  Reporter,  183.  Whether  con- 
clusive, see  Dent  v.  King,  1  Geo.  200. 

1  Rapelye  v.  Prince,  4  Hill,  119;  Bridgeport  Ins.  Co.  v.  Wilson,  34  N.  Y.  275,  rev'g 
V  Bosw.  427  ;  Thomas  v.  Hubbell,  15  N.  Y.  405.  Unless  collusion  or  neglect  is  shown. 
Chapin  v.  Thompson,  4  Hun,  779.  A  variance  as  to  the  manner  in  which  the  suit 
was  brought  is  immaterial.  Allaire  v.  Oulard,  2  Johns.  Cas.  52.  But  on  a  mere  gen- 
eral promise  to  indemnify,  without  referring  to  suits,  a  judgment  against  the  plaintiff 
does  not  alone  prove  defendant's  liability.unless  he  had  notice  and  opportunity  to  de- 
fend. Douglass  v.  Howland,  24  W  end.  35. 

Where  plaintiff  relies  merely  on  a  contract  of  indemnity,  and  proves  that  he  con- 
fessed judgment,  the  burden  of  proof  is  upon  him,  in  his  action  against  his  indemnitor, 
to  show  that  the  creditor  was  entitled  to  as  much  as  the  amount  confessed.  And  this 
is  so,  although  the  indemnitee  has  previously  given  notice  of  suit  brought  to  his  in- 
demnitor, and  the  latter  has  neglected  to  defend  it.  Stone  v.  Hooker,  9  Cow.  154. 

4  Mayor,  <fcc.,  of  v.  Troy,  Ac.  R.  R.  Co.  49  N.  Y.  657,  affi'g  3  Lans.  270. 

6  Smith  v.  Compton,  3  B.  <fe  Ad.  408,  approved  in  84  N.  Y.  275. 

6  Beers  v.  Pinney,  12  Wend.  309,  and  cases  cited ;  Fake  v.  Smith,  2  Abb.  Ct.  App. 
Dec.  76 ;  Green  v.  Goings,  7  Barb.  652.     This  rule  has  recently  been  held  not  to  ap- 
ply, where  the  claim  for  indemnity  is  not  on  contract,  but  on  a  breach  of  trust.  Parker 
T.  Lewis,  L.  R.  8  Ch.  1056,  s.  c.  7  Moak's  Eng.  529.     What  is  sufficient  notice  is  not 
well  settled.     All  authorities  agree  that  reasonable  notice  under  the  circumstances  is 
sufficient.     Compare  Robbins  v.  Chicago  City,  2  Black,  418  ;  4  Wall.  657;  Barmon  v. 
Lithauer,  1  Abb.  Ct.  App.  Dec.  99  ;  Allaire  v.  Ouland,  2  Johns.  Cas.  52.     The  rule  is 
different  in  an  action  for  a  breach  of  warranty.     Somers  v.  Schmidt,  24  Wise.  417, 
8.C.  1  Am.  R.  191.     Whether  costs  of  the  former  suit  can  be  recovered,  unless  the 
present  plaintiff  proves  he  gave  notice  to  the  present  defendant,  is  unsettled.     De  Col- 
yar  on  Guar.  316 ;  Pierce  v.  Williams,  L.  J.  23  Exch.  322 ;  see  the  N.  Y.  Stat.  of  1858, 
c.  314,  §  3.     Where  one  defends  an  action  for  debt,  by  showing  voluntary  payment  of 
the  amount  to  a  sheriff  holding  an  execution  against  his  creditor,  he  must  produce  not 
only  the  execution  and  the  sheriff's  receipt,  buj  also  the  record  of  the  judgment. 
Handly  v.  Greene,  15  Barb.  601. 

7  Dubois  v.  Hermance,  56  N.  Y.  673,  affi'g  1  Supm.  Ct.  (T.  A  C  )  293. 

8  Konitaky  v.  Meyer,  49  N.  Y.  571.    As  to  successive  actions,  see  6  Wend.  288. 

9  Id. 


MONET  PAID  TO  DEFENDANT'S  USE.  263 

Parol  evidence  is  competent  to  explain  the  relation  of  the  par- 
ties to  the  cause  of  action  in  the  judgment  (in  a  judgment  either 
upon  contract l  or  for  tort 2),  for  the  purpose  of  showing  that  as 
between  them  defendant  was  primarily  liable.  If  plaintiff  paid 
as  the  surety,  &c.,  of  the  defendant,  in  consequence  of  a  suit 
against  himself,  but  docs  not  prove  that  he  gave  defendant  notice 
01  the  suit,  defendant  may  show  that  plaintiff  has  no  claim  to  be 
re-imbursed ;  or  not  to  the  amount  alleged ;  or  that  he  made  an 
improvident  compromise  and  that  defendant,  had  he  received 
notice,  might  have  done  better.3 

16.  Medium  of  pcvyment.~] — Under  the  common  law  pro- 
cedure, proof  of  the  transfer  of  property,  whether  land,  chattels, 
or  things  in  action,  accepted  by  the  defendant's  creditor,  in  pay- 
ment, as  money,  is  admissible  under  an  allegation  of  money  paid  to 
defendant's  use,4  but  the  mere  giving  of  one's  own  non-negotiable 
obligation  to  the  creditor  is  not,5  nor  is  the  giving  of  one's  own 
negotiable  obligation,  unless  expressly  accepted  in  payment,6  or 
unless  wrongfully  obtained  and  actually  negotiated,  or  wrongfully 
negotiated  in  fraud  of  plaintiff's  rights.7  Under  the  new  pro- 
cedure, the  payment  will  usually  be  alleged  as  made ;  or  if,  on 
the  trial,  there  be  a  variance  in  the  proof,  it  will  be  a  question 
for  the  court  or  referee,  whether  to  disregard  or  amend  it,  or 
not.  If  the  payment  was  of  a  precedent  debt,  and  was  made 
with  negotiable  paper,  plaintiff  may  recover  on  showing,  either8 
that  the  cre.ditor  expressly  accepted  the  paper  in  payment,9  or 
that  the  paper  has  been  paid.  If  he  proves  that  even  his  own 
negotiable  bill  or  note  was  expressly  accepted  in  payment  of 
defendant's  debt,  he  may  recover  against  defendant  without 
proving  that  such  paper  has  been  paid.10  If  the  payment  was  by 
giving  any  other  obligation  binding  himself  to  pay,  he  must 
prove  payment  on  such  obligation,11  unless  there  was  an  express 


I  Davidson  v.  Peck,  4  Mo.  438,  paragraph  8  (above). 
8  Paragraph  8  (above). 

8  Smith  v.  Compton,  3  B.  A  Ad.  408.     Compare  34  N.  T.  275. 

4  Randall  v.  Rich,  11  Mass.  494;  Ainslie  v.  Wilson,  7  Cow.  662;  Garnsey  v. 
Allen,  27  Me.  306  ;  Jones  T.  Cooke,3  Dev.  N.  C.  Law,  112 ;  Ralston  v.  Wood,  15  III 
159,  171 ;  Hulett  v.  Soullard,  26  Vt.  295,  298.  Contra,  Stroud  v.  Pierce,  6  Allen 
(Mass.)  413.  As  to  value  of  foreign  money,  see  p.  247.  Where  plaintiffs,  who  were 
agents  to  purchase  for  defendants,  proved  delivery  of  their  own  merchandise  to  de- 
fendants, instead  of  payment  of  purchase  price,  held  a  total  failure  of  proof.  Field  v. 
Syms,  2  Robt.  35. 

6  Cases  in  note  7,  paragraph  10  (above);  unless  perhaps,  if  payable  to  a 
stranger.  Parker  v.  Osgood,  4  Gray,  (Mass.)  456. 

6  Van  Ostrand  v.  Reed,  1  Wend.  424. 

7  Bleadon  v.  Charles,  ^7  Bing.  246. 

8  See  Dunnigan  v.  Crummey,  44  Barb.  528,  and  cases  cited. 

8  Howe  v.  N.  Y.  &  Erie  R.  R.  Co.  87  N.  Y.  297;  Bennett  v.  Cook,  45  Id.  268 ; 
Witherby  v.  Mann,  11  Johns  518. 

10  Cnmmings  v.  Hackley,  8  Johns.  202.  As  to  the  presumption  whether  paper  was 
accepted  in  payment,  see  13  N.  Y.  167,  46  Id.  687. 

II  And  it  seems  that  payment  pursuant  to  such  obligation,  though  even  after  suit 
brought  would  uustain  the  action.     9  Mass.  548,  23  Pa.  St.  464. 


264:  MONEY  PAID  TO  DEFENDANTS  USE. 

promise  of   defendant,  to  pay  him  if  lie  would  incur  the  ex- 
pense.1 

17.  Amount."] — It  has  been  held  that  where  plaintiff  is  com- 
pelled to  pay  defendant's  debt,  and  does  so  by  transferring  prop- 
erty at  a  valuation,  or  any  sufficient  consideration  other  than  money, 
which  is  received  by  the  creditor  as  of  equivalent  value,  defendant 
cannot  reduce  the  recovery  bv  offering  evidence  that  the  prop- 
erty was  of  less  value ;   for  it  is  enough  for  him  that  he  was  dis- 
charged by  what  his  creditor  accepted  as  worth  the  full  amount 
of  the  debt.2    But  if  the  transaction  was  a  compromise  on  pay- 
ment of  a  less  sum  than  was  due, — especially  if  plaintiff  stood 
in  a  relation  of  trust  and  confidence,  as  where  he  acted  as  de- 
fendant's agent  in  settling  a  debt,  at  less  than  its  full  value,  or  in 
a  depreciated  currency,— -he  can  only  recover  the  sum  he  actually 
paid  ;  and  the  same  rule  applies  to  a  surety.3 

18.  Source  of  the  fund  paid.'} — A  money  payment  shown  to 
have  been  made  by  plaintiff  will  ordinarily  be  presumed  to  have 
heen  made  from  his  own  funds ;   but  when  there  is  anything  in 
the  relation  of  the  parties  or  the  character  in  which  plaintiff 
sues,  to  allow  of  doubt,  he  should  be  prepared  with  evidence  on 
the  point.4    Thus,  where  a  partner  is  compelled  to  pay  a  firm 
debt,  the  presumption  is  that  he  pays  with  firm  money.5    So,  ad- 
vances made  by  one  of  a  committee  holding  funds,  are  not  pre- 
sumed to  be  of  his.  own  money.6    If  co-plamtiffs  allege  a  joint 
payment  they  must  show  payment  out  of  joint  funds,  by  proof 
of   partnership  or  otherwise.7    The  declaration  of   the  person 
who  paid  the  money,  made  at  the  time  of  paying  it,  as  to  whose 
fund  it  was,  is  competent  in  his  favor,  as  part  of  the  res  gestw? 


1  Bullock  v.  Lloyd,  2  Carr.  &  P.  119;  Smith  v.  Pond,  11  Gray  (Mass.)  234;  but 
in  this  case  the  action  was  on  a  promise  of  indemnity,  not  for  money  paid. 

8  Garnsey  v.  Allen,  27  Me.  366.  NELSON,  J.,  was  of  the  same  opinion  in  Bonney 
v.  Seeley,  2  Wend.  482;  and  this  is  clearly  the  sound  rule,  although  in  that  case  the 
Supreme  Court  held  that  evidence  of  the  actual  value  was  admissible  in  reduction, 
but  in  that  case  there  does  not  seem  to  have  been  any  other  evidence  of  a  valuation 
than  that  implied  in  the  consideration  mentioned  in  the  deed.  s.  p.  Ealston  v.  Wood, 
15  111.  159,  171 ;  Hulett  v.  Soulard,  26  Vt.  295,  298. 

3  Reed  v.  Morris,  2  Mylne  &  C.  361. 

4  In  an  action  by  plaintiff  in  his  private  capacity,  he  may  be  asked  whether  the 
loan  sued  for  was  made  as  his  private  transaction,  or  was  his  act  as  a  receiver. 
Davis  v.  Peck,  54  Barb.  425. 

6  Hill  v.  Packard,  5  Wend.  375. 

6  Bassford  v.  Brown,  22  Me.  9. 

7  Doremus  v.  Selden,  19  Johns.  213;  see  also  Coffee  v.  Tevis,  17  Cal.  239. 

8  Carter  v.  Beals,  44  N.  H.  408  ;    Bank  of  Woodstock  v.  Clark,  25  Vt.  308.     In 
Beasley  v.  Watson  (41  Ala.  234),  a  guardian's  declaration  that  the  payment  was  his 
ward's  money  was  admitted;    and  see  36  Ala.  670,  10  M.  &  W.  572.     But  where 
plaintiff  was  guardian  of  property  of  infants,  and-  administrator  of  their  father's 
estate,  and  made  advances  to  the  widow  while  she  waa  supporting  the  wards, — held 
that  evidence  that  he  had  no  funds  as  guardian  during  the  period  was  too  remote, 
and  not  competent  to  show  that  the  advances  were  his  own  money.     Elliott  v.  Gib- 
bons, 31  N.  Y.  67.    Compare  further  p.  240  of  this  voL,  and  next  chapter. 


MONEY  PAID  TO  DEFENDANT'S  USE.         265 
; 

19.  Object  and  application  of  the  payment.'] — Where  a  pay- 
ment has  been  proved  to  have  been  made  through  an  agent  by 
correspondence,  the  letters  of  the  agent  enclosing  the  receipts, 
and  the  entries  thereupon  made  by  the  plaintiffs  in  their  ac- 
counts, are  admissible  in  connection,  as  part  of  the  res  gestce,  to 
establish  necessary  dates,  &C.1    The  conversation  accompanying 
an  act  of  payment,  and  characterizing  it,  is  admissible  as  part  of 
the  res  gestce,  to  show  the  application  made  of  it.2    And  a  wit- 
ness who  was  a  party  to  the  transaction,  and  was  present  and 
cognizant  of  the  circumstances,  may  be  asked  on  whose  behalf 
the  payment  was  made,  and  whether  it  was  made  in  consequence 
of  the  request,  and  what  was  its  purpose  and  intent,3  subject, 
of  course,  to  cross-examination.4      33ut  on  the   question  as  to 
whether  the  payment  was  made  on  the  credit  of  defendant  or 
another  person,  evidence  of  their  relative  wealth  or  poverty  is 
incompetent,5 

20.  Demand  and  notice.'] — Where  plaintiff  sues  for  contribu- 
tion on  having  paid  a  joint  debt,  he  need  not  prove  that  a  de- 
mand was  made  on  him  before  payment  ;6  and  where  he»has  been 
sued,  he  need  not  generally  prove  notice  of  the  suit  to  defend- 
ant, except  for  the  purpose  of  making  the  judgment  recovered 
against  him  prima  facie  or  conclusive  evidence  of  the  amount  of 
defendant's  obligation,  &c.,  and  of  recovering  all  his  costs.7 

Demand  on  defendant,  (which  should  be  proved  where  he  is 
not  in  default  without  it,)  if  made  solely  by  letter,  should  be 


1  See  Beaver  v.  Taylor,  1  Wall.  637.  This  case  and  those  referred  to  on  p.  253, 
must  be  deemed  to  overrule,  to  this  extent,  Jordan  v.  Wilkius,  3  Wash.  110. 

8  Bank  v.  Kennedy,  17  Wall.  19  ;  Bank  of  Woodstock  v.  Clark,  25  Vt.  308 ;  Allen  v. 
Duncan,  11  Pick.  308;  but  not  subsequent  declarations  as  narratives  of  past  events, 
made  by  one  still  living,  unless  they  are  the  admission  of  him  against  whom  they  are 
adduced.  Dunn  v.  Sloe,  Holt,  N.  P.  399.  Evidence  admitte'l  thus  as  part  <>t  the  resgestce 
does  not  have  the  effect,  if  the  defendant  was  absent,  to  bind  him  as  a  representation 
by  him,  unless  there  is  other  evidence  of  the  authority  of  the  declarant  to  represent 
him.  Second  Nat'l  Bank  v.  Miller,  2  Supra.  Ct.  (T.  <fe  C.)  107.  But  it  is  nevertheless 
admissible,  for  the  purpose  simply  of  characterizing  the  act  -of  the  party  present. 
See  p.  245,  note  4.  When  made  by  an  alleged  agent  of  the  absent  party,  its  effect  to 
bind  him  as  a  declaration  must  depend  on  evidence  of  authority. 

8  Sweet  v.  Tuttle,  14  N.  Y.  465;  Richmondville  Seminary  v.  McDonald,  34  Id. 
379  ;  Bank  v.  Kennedy  (above).  To  the  contrary  see  66  N.  Y.  618;  67  Id.  651. 

4  See  p.  241  of  this  vol. 

5  Wheeler  v.  Packer,  4  Conn.  102 ;  s.  P.  56  N.  Y.  334 ;  rev'g  7  Lans.  381. -on  this 
point.     Second  National  Bank  v.  Miller,  2  N.  Y.  Supra.  Ct.  (T.  &  C.)  107;    8.  P. 
Trowbridge  v.  Wheeler,  1  Allen  (Mass.)  162.     In  Wheeler  v.  Packer,  (4  Conn.  102), 
HOSMER,  Ch.  J.,  excludes  the  evidence,  saying  aptly  ''  If  poverty  will  authorize  in- 
ferences concerning  a  person's  agreement,  so  will  wealth  and  avarice,  mid  generosity 
and  benevolence."     Pollock  v.  Brennnn,  (39  Super.  Ct.  [J.  &  S.]  477.)  on  the  question 
of  a  sale  is  not  necessarily  to  the  contrary,  for  there  the  question  was  whether  a  bus- 
iness properly  belonged  to  tho  husband  or  wife,  aud  the  very  question  seems  to  have 
been,  to  whom  did  the  capital  belong  ? 

0  Pitt  v.  Purssford,  6  Jur.  Gil. 

7  See  p.  262,  (above).  This  being  a  collateral  notice,  it  seems  that  the  written 
notice  need  not  be  produced  or  accounted  for,  unless  some  question  arises  on  its 
terms.  See  McFadden  v.  Kingsbury,  11  Wend.  667. 


266  MONEY  PAID  TO  DEFENDANT'S  USE. 

proved  by  notice  to  produce  the  letter,  and  if  defendant  does  not 
comply,  by  giving  secondary  evidence  of  its  contents.1  A  letter- 
press copy  can  only  be  used  as  secondary  evidence,2  but  a  dupli- 
cate original,  written  and  signed  at  the  same  time  with  the  one 
sent,  is  primary  evidence,  admissible  without  giving  notice  to 
produce  the  counterpart.8  An  independent  oral  demand,  though 
made  at  the  same  time  with  delivery  of  a  written  one,  is  com- 
petent ; 4  but  the  conversation  had  with  the  mere  bearer  of  a  writ- 
ten demand  is  not  competent  without  producing  or  accounting 
for  the  writing.5  An  account  in  plaintiff's  handwriting,  pro- 
duced from  defendant's  possession,  or  otherwise  shown  to 
have  been  presented  to  him,  is  competent  to  go  to  the  jury ;  and, 
with  the  omission  to  make  any  objection,  is  prima  facie  evi- 
dence of  the  correctness  of  the  items  as  to  amount,  &c.7  If  de- 
fendant's oral  admissions  are  adduced  in  evidence,  he  is  entitled 
to  have  the  whole  statement  taken  together,  to  the  extent  of  all 
that  was  said  by  the  same  person  in  the  same  conversation  that 
would  in  any  way  qualify  or  explain  the  part  adduced  against 
him,  or  tend  to  destroy  or  modify  the  use  which  the  adversary- 
might  otherwise  make  of  it,  but  no  further.8  But  the  jury  may 
discredit  the  connected  denial,  while  giving  credit  to  the  admis- 
sion.9 The  fact  that  he  questioned  part  of  the  items  only,  strength- 
ens the  presumption  that  others  are  correct.10  His  objecting  to 
the  whole  account  on  other  grounds,  explains  the  omission  of  any 
objection  to  the  correctness  of  items,  sufficiently  to  deprive  it  of 
the  effect  of  an  admission.11 

21.  Defenses.'] — If  plaintiff  proves  a  request  to  pay  a  partic- 
ular demand,  is  no  defence  that  the  demand  was  not  legally  due, 
as  for  instance  where  it  was  a  void  assessment,  or  even  a  contract 
usurious  on  its  face  j12  but  illegality,  such  that  the  act  of  pay- 
ing was  illegal,  must  be  shown.13  Although  the  claim  paid 
was  not  merely  void  but  illegal,  and  plaintiff  knew  it,  yet  if  the 
money  was  advanced  on  a  new  contract  it  is  recoverable  ; 14  though 
it  would  be  otherwise  if  plaintiff  was  particeps  criminis  in  the 
original  transaction.15 


1  Weeks  v.  Lyon,  18  Barb.  530. 

2  Foot  v.  Bentley,  44  N.  Y.  166. 

3  Hubbard  v.  Russell,  24  Barb.  404. 

4  Smith  v.  Young,  1  Campb.  439. 
6  Glenn  v.  Rogers,  3  Md.  312. 

6  Nichols  v.  Alsop,  10  Conn.  263. 

7  See  chapter  on  ACCOUNTS  STATED. 

8  Rouse  v.  Whited,  25  N.  Y.  170,  rev'g  25  Barb.  279. 

9  Craighead  v.  The  State  Bank,  1  Meigs,  199.     (But  not  arbitrarily.     1  Abb.  Ct. 
App.  Dec.  111.) 

'"Id. 

11  Quincy  v.  White,  63  N.  Y.  370. 

11  As  to  the  form  and  effect  of  denials,  see  Simmons  v.  Sisson,  26  N.  Y.  264. 

13  Mosely  v.  Boush,  4  Rand.  (Va.)  302;  McElroy  v.  Melear,  7  Coldw.  (T.)  140. 

14  Armstrong  v.  Toler,  1 1  Wheat.  258. 

15  Brown  v.  Tarkington,  8  Wall  381 ;    Pitcher  v.  Bailey,  8  East,  171.     Compare 


MONEY  PAID  TO  DEFENDANT'S  USE.          267 

Defendant  may  prove  in  his  exoneration  that  the  payment 
was  from  a  fund  plaintiff  held  for  his  indemnity  ; *  and  evidence 
that  plaintiff  received  such  a  fund,2  or  was  party  to  a  proceeding 
in  which  he  was  entitled  to  it,  throws  on  plaintiff  the  burden  of 
accounting  for  its  disposition.8  The  statute  of  limitations  is 
available  as  to  any  payment,  though  only  a  part  payment,  not 
made  within  the  six  years.4 


Knowlton  v.  Congress  Spring  Co.  5  Reporter,  166,  and  contrary  decision  in  57  N. 
Y.  618. 

1  Gorrpel  v.  Swinden,  1  D.  &  L.  888. 

4  Fielding  v.  Waterhouse,  40  Super.  Ct.  (J.  &  S.)  42Y,  and  cases  cited.  Ramsey 
v.  Lewis,  30  Barb.  403. 

8  Cockayne  v.  Stunner,  22  Pick.  11Y. 

4  Davis  v.  Humphreys,  6  M.  &  W.  153 ;  De  Colyar  on  G.  318. 


CHAPTEE  XIV. 

ACTIONS  TO  RECOVER  BACK  MONEY  PAID  BY  PLAINTIFF  TO  DE- 
FENDANT UNDER  MISTAKE,  DURESS,  EXACTION  OR  FRAUD,  OR 
THE  CONSIDERATION  FOR  WHICH  HAS  FAILED. 

1.  The  payment.  6.  Duress  or  exaction. 

2.  Mistake.  6.  Fraud. 

8.  Subsequent  promise  to  repay.  7.  Failure  of  consideration. 

4.  Forged  or  counterfeit  paper. 

1.  The  payment.'] — In  all  these  classes  of  cases  the  payment 
to  be  proved  is  usually  not  a  payment  to  a  third  person  by 
plaintiff,  as  in  actions  for  Money  Paid  to  Defendant's  Use,  nor  a 
payment  to  defendant  by  a  thira  person,  as  in  actions  for  Money 
Keceived  to  Plaintiffs  Use,  but  a  payment  directly  from  plaintiff 
to  defendant,  which  plaintiff  seeks  to  recall  on  the  ground  that 
he  was  under  no  legal  obligation  to  pay,  and  that  defendant  has 
no  title  to  the  money.     The  payment  should  be  shown  to  have 
been  in  money,  or  that  which  defendant  received  as  money,  or 
equitably  ought  to  account  for  as  such.1    An  allegation  of  money 
paid  by  plaintiffs  to  defendant  is  not  sustained  by  proof  that  they 
gave  him  their  negotiable  promise  to  pay,  unless  it  was  expressly 
accepted  as  cash  in  absolute  payment,2  or  unless  it   has  been 
negotiated  by  defendant  in  fraud  of  plaintiffs'  right.3    The  prin- 
ciples governing  the  mode  of  proving  the  payment,  and  the  effect 
of  a  variance,  are  sufficiently  stated  in  the  last  two  chapters  and 
the  next  one. 

2.  Mistake!} — The  burden  of  proof  is  on  the  plaintiff  to  show 
the  mistake 4  on  which  he  relies/    Evidence  of  a  mistake  at  the 
time  of  making  the  contract  pursuant  to  which  the  payment 
was  made,  does  not  raise  a  presumption  that  the  plaintiff  con- 
tinued under  the  mistake  at  the  subsequent  time  of  payment,  but 
the  evidence  must  connect  the  mistake  with  the  time  of  payment 


1  Moyer  v.  Shoemaker,  5  Barb.  319. 

8  Van  Ostrand  v.  Reed,  1  Wend.  424. 

8  Bleadon  v.  Charles,  7  Bing.  246. 

4  For  recent  cases  on  the  distinction  between  mistakes  of  law  and  of  fact,  see  15 
Am.  R.  171,  n.;  Earl  of  Beauchamp,  L.  R.  6  Eng.  &  J.  App.  223,  s.  c.  6  Monk's  Eng. 
37;  Carpentier  v.  Minturn,  6  Lans.  56;  65  Barb.  293 ;  Holdredge  v.  Webb,  64 
Barb.  9. 

6  Kirkpatrick  v.  Bank,  2  Hill  S  C.  577 ;  Urquhart  v.  Grove,  2  Rob.  (La.)  207. 
In  case  of  a  person  non  sui  juris,  surprise  and  a  mistake  of  law  may  be  enough. 
Pitcher  v.  Turin  Plankroad  Co.  10  Barb.  436. 

[268J 


ACTIONS  FOR  MONEY  PAID  UNDER  MISTAKE,  ETC.         269 

also,1  unless  there  is  evidence  of  exaction  and  protest.2  Clear 
proof  of  mistake  is  requisite.3  Mistake  of  fact  is  shown  within 
the  rule,  by  proof  either  that  some  fact  which  really  existed  was 
unknown,  or  that  some  fact  was  supposed  to  exist  which  did 
not.4  The  material  facts  intended  by  the  rule  are  those  which 
show  that  the  demand  asserted  did  not  exist,  not  such  as  show  a 
mere  set-off.5  The  rule  applies,  notwithstanding  the  parties  made 
a  jump  settlement  or  an  adjustment  "hit  or  miss,"  if  it  be  shown 
that  such  agreement  was  made  under  mistake.6  Where  the  case 
is  free  from  fraud  and  from  negligence  prejudicing  defendant,  it 
is  not  necessary  for  plaintiff  to  negative  the  means  of  knowledge 
as  well  as  actual  knowledge  of  the  true  state  of  facts.7  Under 
the  general  rule  that  in  the  interpretation  of  a  writing  the  court 
may  receive  all  the  light  that  surrounding  circumstances  can 
throw  upon  its  language 8  evidence  of  the  parties'  knowledge 9 
or  ignorance,10  is  competent;  and  may  be  shown  by  the  testi- 
mony of  the  party  himself.11  If  a  reformation  of  a  written  con- 
tract is  necessary,  the  omission  to  demand  that  relief  in  the  com- 
plaint may  be  cured  by  amendment,  or  disregarded.12  Conversa- 
tions at  the  time  of  payment,  and  forming  part  of  the  res  gestce, 
are  competent  even  to  contradict  statements  contained  in  writ- 
ings of  defendant's  agents  put  in  evidence  by  plaintiff  to  show 
defendant's  receipt  of  the  money.13  Negligence  in  making  the 
mistaken  payment  is  not  relevant,  unless  the  situation  of  other 
parties  has  been  changed  in  consequence  of  the  payment ; 14  and 
if  this  be  so,  the  burden  of  proving  the  fact  rests  upon  the  de- 
fendant.15 


I  Wyman  v.  Farnsworth,  3  Barb.  369. 

8  Meyer  v.  Clark,  45  N.  Y.  284,  rev'g  2  Daly,  497. 

*  Biting  v.  Scott,  2  Johns.  157;    Taylor  v.  Beavers,  4  E.  D.  Smith,  215  ;  and  see 
Mutual  Life  Ins.  Co.  v.  Wager,  27  Barb.  354 ;    Cullreath  v.  Cullreath,  7  Geo.  64 ; 
Kent  v.  Manchester,  29  Barb.  595,  and  cases  cited.     For  the  contrary  notion,  that  in 
all  civil  issues  preponderance  of  probability  is  enough,  see  Kane  v.  Hibernia  Ins.  Co. 
10  Vroom,  697,  s.  c.  23  Am.  R.  239. 

4  Rheel  v.  Hicks,  25  N.  Y.  291. 

6  Franklin  Bank  v.  Raymond,  3  "Wend.  72. 

•  Wheadon  v.  Olds,  20  Wend.  174. 

7  Kelly  v.  Solari,  9  Mees  &  W.  54,  s.  o.  6  Jur.  107 ;  and  see  Martin  v.  McConnick, 
8  N.  Y.  331. 

8  See  pp.  129-131  of  this  vol.  for  the  fuller  discussion  of  this  principle. 

9  Lake  v.  Artisans'  Bank,  3  Abb.  Ct.  App.  Dec.  10. 

10  Reynolds  v.  Commerce  Fire  Ins.  Co.  47  N.  Y.  597.    But  ignorance  is  not  always 
equivalent  to  mistake.    National  Life  Ins.  Co.  v.  Minch,  53  N.  Y.  144,  rev'g  6  Lans. 
100. 

II  But  his  undisclosed  intent  is  not  usually  competent.     Dillon  r.  Anderson,  43  N. 
Y.  231 ;  unless  motive  is  material.     See  Lewis  v.  Rogers,  34  Super.  Ct.  (J.  <fe  S.)  64. 
Nor  is  the  intent  of  the  draftsman  competent.     Nevins  v.  Dunlap,  83  N.  Y.  676. 

15  Rosboro  v.  Peck,  48  Barb.  96. 

13  Hall  v.  Holden,  116  Mass.  172. 

14  Duncan  v.  Berlin,  11  Abb.  Pr.  N.  S.  116,  rev'g  6  Robt.  547,  8.  o.  4  Abb.  Pr.  N. 
S.  34 ;  Lawrence  v.  Am.  Nat.  Bank,  54  N.  Y.  432. 

"  Mayer  v.  Mayor,  <fec.  63  N.  Y.  455. 


270  ACTIONS  FOR  MONEY  PAID  UNDER  DURESS,  JETC. 

3.  Subsequent  promise  to  repa/y.~\ — It  is  not  necessary  to  al- 
lege the  promise  to  repay,  which  the  law  implies  from  defendant's 
receiving  plaintiffs  money  by  mistake ; l  but  if  sufficient  evidence 
of  a  legal  obligation,  or  what  the  law  regards  as  a  moral  obliga- 
tion,2 has  been  given,  evidence  of  a  subsequent  promise  by  the 
plaintiff  to  refund  is  competent.8 

4.  forged  or  counterfeit  paper.] — There  is   a  presumption 
that  the  drawees  know  the  signature  of  the  drawer/  and  01  the 
payee5  and  indorser,6  on  whose  supposed  signatures  they  pay, 
which  is  conclusive  in  favor  of  the  drawer  against  their  allega- 
tion of  mistake ;  but  there  is  no  such  presumption  as  to  the  genu- 
ineness of  the  writing  in  the  body  of  the  paper.7    In  an  action 
to  recover  the  value  of  bad  money  received  by  plaintiff  from  de- 
fendant in  payment  of  a  debt,  or  for  other  consideration,  the 
burden  is  on  the  plaintiff  to  prove  the  money  bad.8    In  an  action 
on  a  receipt  for  bills,  to  be  accounted  for  if  good,  parol  evidence 
is  competent  to  show  that  defendant  promised  to  take  the  money 
and  try  it,  and  return  it  if  condemned ;  and  this,  with  evidence  of 
sufficient  lapse  of  time,9  throws  on  defendant  the  burden  of  ac- 
counting.10 

5.  Duress.11'] — To  recover  back  money  paid  under  duress,  it  is 
not  essential  to  allege  and  prove  a  contract.12    The  mere  fear  of 
legal  process,18  or  threats  of  prosecution  without  threats  of  im- 
prisonment or  arrest,  are  not  sufficient.14    As  against  a  party  to 
legal  process,  who  by  fraudulent  or  improper  use  of  it,  knowing 
that  he  has  no  just  claim,  compelled  plaintiff  to  pay  a  demand, 
neither  evidence  of  protest,15  nor  of  the  final  termination  of  the 
process,16  is  necessary.    Evidence  that  a  judgment  has  been  re- 


1  See  Farron  v.  Sherwood,  17  N.  Y.  227;   Byxbie  v.  "Wood,  24  Id.  607;  Steam- 
ship  Co.  v.  Jolliffe,  2  Wall.  457. 

2  See  p.  251  of  this  vol.  n.  10. 

3  Bentley  v.  Morse,  14  Johns.  468  ;  Rosboro  v.  Peck,  48  Barb.  92 ;  Ege  v.  Koontz, 
3  Penn.  St.  109. 

*  National  Park  Bank  v.  Ninth  Nat.  Bank,  46  N.  Y.  77. 
8  Graves  v.  Am.  Exchange  Bank,  17  N.  Y.  205. 

6  Morgan  v.  Bank  of  State  of  N.  Y.  11  N.  Y.  404.  Bnt  as  to  indorsera  other 
than  the  payee,  see  Holt  v.  Ross,  54  N.  Y.  472,  affi'g  59  Barb.  554. 

'  Bank  of  Commerce  v.  Union  Bank,  3  N.  Y.  230. 

8  Atwood  v.  Cornwall,  25  Mich.  142.  Compare  Burrill  v.  Watertown,  Ac.  Co.  51 
Barb.  105. 

*  Marcum  v.  Beirne,  6  J.  J.  Marsh.  (Ky.)  604. 

10  As  to  appropriate  evidence  on  question  of  genuineness,  see  chapter  on  BILLS, 
NOTES  AND  CHECKS. 

11  For  conflicting  definitions  of  duress,  coercion,  and  exaction, — see  7  Wall  214; 
10  Id.  414;   14  Id.  332 ;  Peyser  v.  Mayor,  <fec.  of  N.  Y.  70  N.  Y.  497 ;  Meyer  v.  Clark, 
45  N.  Y.  284,  rev'g  2  Daly,  497 ;  Am.  Exch.  Fire  Ins.  Co.  v."Britton,  8  Bosw.  148. 

18  Carew  v.  Rutherford,  106  Mass.  1,  s.  c.  8  Am.  R.  287,  and  cases  cited. 

13  Quincy  v.  White,  63  N.  Y.  370,  reVg  5  Daly,  327. 

14  Harmon  v.  Harmon,  61  Me.  227,  s.  c.  14  Am.  R.  556. 

15  Meek  v.  McClure,  49  CaL  624;  s.  p.  McKee  v.  Campbell,  27  Mich.  497. 

16  Chandler  v.  Sanger,  114  Mass.  364,  s.  c.  19  Am.  R.  367.     Compare  Moulton  v, 
Beecher,  1  Abb.  N.  C.  193. 


ACTIONS  FOR  MONEY  PAID  UNDER  FRAUD.       271 

versed  after  the  money  has  been  collected  under  it,  and  that  the 
action  was  subsequently  finally  dismissed,  makes  a  prima,  facie 
case  in  favor  of  the  defendant  in  the  judgment 1  to  recover  back 
the  money ;  and  the  burden  of  proving  an  equitable  right  to  re- 
tain it  is  cast  on  the  adverse  party.2  One  who  sues  to  recover 
back  what  he  paid  to  get  possession  of  his  goods  withheld  on  an 
unjust  claim  of  lien  thereon,3  has  the  burden  of  showing  that 
the  claim  of  lien  was  unfounded.4  So  in  an  action  against  the 
collector,  for  duties  alleged  to  have  been  illegally  exacted,  the 
burden  of  proof  is  on  plaintiff  to  show  not  merely  exaction,  but 
that  it  was  excessive  and  illegal ;  unless  it  be  shown  that  he  had 
no  authority  in  the  premises,  and  could  hold  the  goods  for  no 
amount  whatever.  On  an  issue  as  to  the  amount  of  duty,  the 
burden  of  proof  of  illegal  amount  rests  on  plaintiff.5  If  an  officer 
had  no  notice  of  the  facts  which  rendered  his  demand  illegal, 
proof  of  protest  at  the  time  of  payment  is  necessary ; 6  otherwise 
not,7  unless  required  by  statute.8  In  cases  of  personal  duress, 
when  the  state  of  mind  of  the  person  at  the  time  is  relevant,  to 
show  weakness  (in  connection  with  which  defendant's  pressure, 
though  perhaps  not  technically  amounting  to  duress,  is  fraudu- 
lent, and  therefore  equivalent  in  effect),  the  plaintiff's  own  acts 
and  declarations,  as  well  as  those  constituting  the  alleged  duress, 
are  competent,  within  the  limits  already  stated  in  regard  to  proof 
of  mental  weakness  and  undue  influence.9  But  the  opinion  of  a 
witness,  as  to  whether  language  used  was  calculated  to  induce 
one  to  act  through  fear,  is  not  competent ;  the  language  itself 
must  be  given.10 

6.  Fraud.~\ — The  fact  that  the  complaint  states  fraudulent 
representations  of  the  defendant,  by  which  the  plaintiff  was  in- 
duced to  pay  him  the  money  which  he  seeks  to  recover  back, 
does  not  necessarily  stamp  the  action  as  in  tort.  It  is  no  objec- 
tion to  a  recovery  in  such  a  case  that  fraud  is  not  proved/1  if 
sufficient  facts  appear  to  warrant  a  recovery  as  for  money  had 
and  received ;  especially  when  the  words  in  the  complaint  charg- 
ing fraud  may  be  regarded  as  matter  of  inducement.  Having 
money  that  rightfully  belongs  to  another,  creates  a  debt ;  where- 


1  But  not  in  favor  of  his  surety  who  was  not  a  party     Garr  v.  Martin,  20  N.  Y. 
806,  rev's  1  Hilt.  358. 

s  Crocker  v.  Clement,  23  Ala.  296,  307. 

3  Harmony  v.  Bingham,  12  N.  Y.  99,  affi'g  1  Duer,  209 ;  and  see  Great  Western 
Ry.  Co.  v.  Sutton,  L.  R.  4  H.  of  L.  Cas.  226,  249. 

4  Briggs  v.  Boyd,  56  N.  Y.  289,  affi'g  65  Barb.  197. 
8  Arthur  v.  Utikart,  96  U.  S.  (6  Otto),  118,  122. 

•  Meek  v.  McClure,  49  Cal.  624. 

7  Id. ;  Atwell  v.  Zeluff,  26  Mich.  118.   Except  for  purpose  of  recovering  interest  Id. 

8  As  to  the  requisite  distinctness  of  protest,  compare  Curtis'.  Administratrix  v. 
Fiedler,  2  Black,  461 ;  Davies  v.  Arthur,  96  U.  S.  (6  Otto),  148. 

9  See  chapter  ou  WILLS.     Blair  v.  Coffman,  2  Overt.  (Tenn.)  176. 

10  Johnson  v.  Ballew,  2  Port.  (Ala.)  29. 

11  The  New  York  Code  Civ.  Pro.  §  529,  now  requires  proof  of  fraud  if  alleged. 


272   ACTIONS  FOR  MONEY  PAID,  WHERE  CONSIDERATION  FAILS. 

ever  a  debt  exists  without  an  express  promise  to  pay,  the  law  im- 
plies a  promise,  and  the  action  sounds  in  contract,  although,  under 
the  Code,  this  implied  promise  need  not  be  alleged.1  But  if  fraud 
is  alleged  as  the  cause  of  action,  so  that  defendant  would  be  liable 
to  arrest  on  a  judgment  against  him,  plaintiff  cannot  recover  on 
establishing  a  contract,  express  or  implied,  without  proving  the 
fraud.2  Proof  of  a  mistake  is  not  enough  to  sustain  an  allegation 
of  a  cause  of  action  thus  founded  on  fraud.8  The  burden  of  proof 
is  of  course  on  the  plaintiff  to  prove  the  fraud  by  which  the  pay- 
ment was  induced.4  The  principles  regulating  the  mode  of  proof 
of  fraud  are  the  same  as  those  elsewhere  stated  of  actions  for 
deceit. 

7.  Failure  of  consideration?] — "Where  plaintiff  sues  to  recover 
back  money  paid  by  him  to  defendant  under  a  contract  the  con- 
sideration of  which  has  failed,  the  principles  applicable  to  actions 
on  such  contracts  apply  as  to  the  mode  of  proof,  except  that  the 
burden  is  on  the  plaintiff  to  prove  non-performance  by  defendant, 
or  other  failure  of  consideration.6  If  the  contract  was  in  writ- 
ing, it  should  be  produced  or  accounted  for.7  If  it  contains  a 
covenant  to  repay  and  is  under  seal,  the  action  should  be  upon 
the  covenant ; 8  though  under  the  new  procedure,  if  the  complaint 
shows  a  good  cause  of  action  for  money  paid,  the  allegation  of 
the  contract  may  be  regarded  as  matter  of  inducement,  and  is 
properly  pleaded  for  that  purpose.9  Evidence  that  plaintiff  de- 
livered his  money  to  defendant  upon  conditions  stated  by  him  at 
the  time,  and  that  defendant  received  it  in  silence,  is  prima  fade 
evidence  of  assent  to  the  conditions.10  An  order  drawn  by  de- 
fendant in  favor  of  plaintiff,  and  delivered  to  him,  and  proved  to 
have  been  subsequently  countermanded  by  defendant,  is  compe- 
tent without  evidence  of  presentment  to  the  drawee  ;  and  if  ex- 
pressed to  be  for  value  received,  is  prima  facie  evidence  of  the 
receipt  by  defendant  of  its  amount  from  plaintiff.11 


1  Byxbie  v.  Wood,  24  N.  Y.  607,  affi'g  Sheldon  v.  Wood,  2  Bosw.  267 ;  compare 
Knapp  v.  Meigs,  11  Abb.  Pr.  N.  S.  405,  and  p.  273  of  this  vol. 

2  The  release  of  a  precedent  debt  is  not  enough  under  an  allegation  of  money 
payment  induced  by  fraud.     De  Grau  v.  Elmore,  50  N.  Y.  1. 

8  Dudley  v.  Scranton,  57  N.  Y.  424,  and  cases  cited. 

4  Mutual  Life  Ins.  Co.  v.  Wager,  27  Barb.  354. 

5  As  to  the  test  of  the  right  to  recover  back  money  paid  under  an  illegal  contract, 
— Bee  Knowlton  v.  Congress  Spring  Co.  57  N.  Y.  518 ;  opposed  in  a  further  decision 
in  5  Reporter,  166,  s.  c.  16  Alb.  L.  J.  10. 

•  Wheeler  v.  Board,  12  Johns.  363. 

7  Allen  v.  Potter,  2  McCord,  823. 

8  Miller  v.  Watson,  5  Cow.  195. 

9  Eno  v.  Woodworth,  4  N.  Y.  (4  Comet.)  249. 

10  Hale  v.  Holden,  116  Mass.  172. 
»  Child  v.  Moore,  6  N.  H.  33. 


CHAPTER  XV. 

ACTIONS  FOR   MONEY   RECEIVED    BY   DEFENDANT  TO  PLAINTIFFS 

USE. 

1.  Grounds  of  action.  7.  Action  by  depositor  against  bank. 

2.  The  pleadings.  8.  Bank's  action  for  overdraft. 

8.  Plaintiff's  title  to  the  fund.  9.  Action  by  principal  against  bis  agent. 

4.  Receipt  of  the  money  by  defendant.  10.  Demand  and  notice. 

6.  —  by  nn  agent  of  defendant.  1 1 .  Defendant's  evidence. 
6.  The  medium  and  amount  of  payment. 

1.  Grounds  of  action.'] — The  ground  of  the  action  is  that  de- 
fendant, or  his  agent,  has  received  money,  or  property  which 
plaintiff  is  entitled  to  charge  him  with  as  money,  which  belongs 
of  right  to  plaintiff,  and  which  defendant  ought  to  pay  over  to 
him.1 

2.  The  pleadings.']  — The  complaint,  unless  on  an  account,2 
must  usually  be  special,  setting  forth  the  relation  of  the  parties, 
and  the  contract  or  wrong  by  means  of  which  the  money  was  re- 
ceived.  If  the  facts  alleged  constitute  a  tort,  such  as  a  conversion, 
or  deceit  in  obtaining  credit,  or  a  breach  of  trust,  it  does  not  nec- 
essarily make  the  action  one  of  tort.     If  a  wrong  is  alleged  mere- 
ly as  matter  of  inducement,3  or  if  it  be,  although  in  form  stated 
as  the  gist  of  the  action,  a  mere  legal  conclusion,  and  unsupported 
by  the  facts  alleged,4  evidence  of  the  facts  alleged  establishing 
liability  on  contract,  express  or  implied,  will  sustain  the  action, 


1  The  principles  on  which  this  action  is  sustnined  are  liberal,  applying  to  almost 
every  case  where  a  person  has  received  money  which  in  equity  and  good  conscience 
lie  ought  to  refund;  and,  upon  the  same  principles,  the  defendant  may  avail  himself 
of  any  considerations,  equitable  aa  well  as  legal,  which  show  that  the  plaintiff,  in  fair- 
ness and  justice,  is  not  entitled  to  the  whole  of  his  demand,  or  any  part  of  it.  BLACK- 
STONE,  J..  MANSFIELD,  J.,  NELSON,  J.,  Eddy  v.  Smith,  13  Wend.  490,  and  cases  cited. 
8.  P.  Cope  v.  Wheeler,  41  N.  Y.  303,  affi'g  53  Barb.  350,  s.o.  37  How.  Pr.  181.  Strict- 
ly speaking,  evidence  that  plaintiff  paid  money  to  a  third  person  for  defendant's  use 
(Claycomb  v.  McCoy,  48  111.  110) ;  or  in  consequence  of  his  fraud  (Butler  v.  Liver- 
more,  52  Barb.  570);  or  to  defendant  under  a  contract  which  has  failed  (Briggs  v. 
Vanderbilt,  19  Barb.  222);  is  not  appropriate  under  a  mere  allegation  of  money  had 
and  received  by  defendant  to  plaintiff's  use.  See  p.  268  of  this  vol.  But  under 
the  new  procedure,  the  question  is  usually  one  of  variance,  not  of  entire  failure  of 
proof,  But  see  N.  Y.  Indemnity  Co.  v.  Gleason,  7  Abb.  New  Cas 

«  Allen  v.  Patterson,  7  N.  Y.  476. 

'  Graves  v.  Harte,  69  N.  Y.  162 ;  Byxbie  v.  Wood,  24  Id.  607,  affi'g  2  Bosw.  267. 

4  As  where,  after  alleging  a  delivery  of  money  to  a  banker  or  agent,  which  neces- 
sarily constitutes  a  mere  debt,  not  a"  bailment,  the  pleader  alleges  that  defendant 
wrongfully  converted  the  sum  to  his  own  use.  Greentree  v.  Rosenstock,  61  N.  Y. 
583,  affi'g  34  Super.  Ct.  (J.  &  S.)  505  ;  Sheahan  v.  Shanahan,  6  Hun,  461,  s.  p.  Vilmar 
v.  Schall,  61  N.  Y.  664,  affi'g  35  Super.  Ct.  (J.  &  S.)  67.  But  see  note  11  on  p.  271. 

18  [273] 


274  ACTIONS  FOR  MONET  RECEIVED 

although  the  suggestion  of  fraud  be  unproved.  If,  on  the  other 
hand,  fraud  is  alleged  in  such  way  that,  on  a  judgment  against 
defendant,  he  would  be  liable  to  arrest,  the  plaintiff  cannot  re- 
cover without  proof  of  this  allegation.1  Plaintiff  will  not  be 
deemed  to  waive  a  tort  alleged  in  a  manner  appropriate  to  a  cause 
of  action,  and  to  rest  on  an  implied  promise,  unless  such  intent 
appears  by  the  complaint.2  Where  the  tort  is  not  alleged,  plaint- 
iff may  still  prove  it,  as  part  of  the  transaction  by  which  defend- 
ant actually  received  money  which  he  ought  to  refund  to  plaintiff 
— as,  for  instance,  that  defendant  wrongfully  took  plaintiff's 
goods,  sold  them,  and  received  the  price.8  But  to  entitle  plaintiff 
to  recover,  on  waiver  of  tort  and  as  for  money  received,  facts 
constituting  a  cause  of  action  on  contract,  express  or  implied, 
must  be  alleged ; 4  and  it  must  appear  that  defendant  received 
money  or  pecuniary  benefit  equivalent  thereto.5 

3.  Plaintiff's  title  to  the,  fundJ\ — Plaintiff  may  recover  on 
proof  of  a  contract  made  with  himself,  in  his  own  name,  although 
he  acted  as  agent  of  the  true  owner  of  the  fund ;  for  the  contract 
makes  him  the  trustee  of  an  express  trust.6  So,  under  an  un- 
sealed contract,  he  may  recover  on  parol  proof  that  he  was  the 
real  principal,  and  that  the  contract  was  made  by  his  consent,7  or 
with  his  agent,  though  without  his  consent.8  Parol  evidence  is 
competent  to  show  that,  in  an  unsealed 9  contract 10  made  by  an- 
other in  his  own  name,11  the  plaintiff  was  the  real  principal, 


1  Ross  v.  Mather,  51  N.  Y.  108  ;  De  Grau  v.  Elmore,  50  Id.  1.  Compare  Coit  v. 
Stewart,  12  Abb.  Pr.  N.  S.  216;  Barker  v.  Clark,  Id.  106. 

I  Chambers  v.  Lewis,  11  Abb.  Pr.  210,  affi'g  10  Id.  206,  s.  c.  2  Hilt.  591. 

3  Harpending  v.  Shoemaker,  87  Barb.  270,  291,  s.  p.  Boston,  &c.  R.  R.  Co.  v.  Dana, 

1  Gray  (Mass.)  83, 100 ;  Pierce  v.  Wood,  3  Fost.  (N.  H.)  519,  53 1 .   Where  the  evidence 
was  that  defendant  received  proceeds  of  negotiable  paper  wrongfully  obtained  from 
plaintiff,  held  that  the  action  should  have  been  for  equitable  relief.     Wilson  v.  Scutt, 
8  Lans.  308.     So  it  has  recently  been  held  that  this  action  by  a  municipality  is  not 
sustained  by  evidence  that  defendant  wrongfully  borrowed  of  a  public  officer  money 
held  by  him  as  such.     The  action  should  be  case  or  a  bill  in  equity.     Perley  v.  Coun- 
ty of  Muskegon,  32  Mich.  132,  s.  o.  20  Am.  R.  637. 

4  Walter  v.  Bennett,  16  N.  Y.  250. 

6  Under  an  express  contract  of  a  baSte  to  account  for  proceeds,  recovery  for  mare 
application  of  the  property  to  defendant's  own  use,  without  receipt  of  proceeds,  is  not 
allowed.  Moffat  v.  Wood,  Seld.  Notes,  No.  5, 14.  Compare  Roth  v.  Palmer,  27  Barb. 
652.  Whether  evidence  of  appropriation  by  a  wrongdoer  is  sufficient,  without  evi- 
dence of  sale  and  receipt  of  proceeds,  is  not  agreed.  Compare  Moses  v.  Arnold,  43 
Iowa,  187,  s.  c.  22  Am.  R.  239 ;  Norden  v.  Jones,  33  Wise.  COO,  s  c.  14  Am.  R.  782; 

2  Greenl.  Ev.  88,  §  108,  n.  5,  and  cases  .cited ;  Henry  v.  Marvin,  3  E.  D.  Smith,  71. 

6  P.  234  of  this  vol.  n.  8. 

7  Fischesser  v.  Heard,  42  Geo.  531. 

8  Calland  v.  Lloyd,  6  Mees  <fe  W.  26. 

9  As  to  sealed  contracts,  see  Briggs  -v:.  Partridge,  64  N.  Y.  357,  affi'g  39  Super.  Ct. 
(J.  &  S.)  339. 

10  Even  though  such  as  the  statute  of  frauds  requires  to  be  in  writing.     Ford  v. 
Willinms,  21  How.  U.  S.  287,  s.  p.  Dykers  v.  Townsend,  24  N.  Y.  57. 

II  It  is  not  material  that  the  contract  does  not  indicate  that  the  apparent  party  was 
gan  agent.     Ford  v.  Williams  (above). 


BY  DEFEND ANT  TO  PLAINTIFF'S  USE.  275 

whether  disclosed  *  to  defendant  or  not.2  The  declarations  of 
the  depositor  or  payer  of  money,  made  as  part  of  the  res  gesfco 
of  payment,  are  competent  to  show  the  source  of  the  fund  for 
the  purpose  of  proving  in  whom  was  the  title.8  And  the  letters 
in  which  plaintiff  received  the  fund  are  competent  as  bearing  on 
the  question,  though  not  necessarily  as  proof  of  the  facts  stated 
therein.4  If  declarations  as  to  the  source  or  title  of  the  fund  are 
shown  to  have  been  made  in  presence  of  the  defendant,  they  are 
competent,  in  connection  with  evidence  of  his  tacit  admission  or 
other  conduct  under  them.5  Defendant's  declaration  to  plaintiff 
that  he  holds  the  fund  subject  to  his  order  is  sufficient  prima, 
facie  evidence  of  plaintiff's  title.6  But  privity  of  contract  is  not 
essential.7 

4.  The  receipt  of  the  money  by  defendant^ — The  action  is  not 
sustained  unless  there  has  been  an  actual  receipt  of  money  by  the 
defendant,  or  something  equivalent  to  it,8  or  unless  the  defend- 
ant is  estopped  by  representations  made  to  the  plaintiff  from  deny- 
ing the  receipt.9  But  it  is  enough  that,  on  all  the  facts,  it  may 
fairly  be  presumed  that  defendant  has  received  plaintiff's  money. 
Positive  evidence  is  not  required.10  For  this  purpose  evidence  of 
its  payment  over  the  counter  of  the  defendant's  office,  to  a  person 
acting  as  clerk  and  apparently  in  authority,  is  competent  to  go  to 
the  jury.11  Where  there  are  several  defendants,  partnership,12  or 
a  joint  reception,  or  a  joint  interest,  or  a  joint  contract,18  should  be 
shown.  An  acknowledgment  of  having  received  the  money, 
made  by  defendant  in  any  form,  is  competent  evidence  against 
him.14  Thus  the  consideration  named  in  the  agent's  conveyance 
to  a  third  person  is  competent  against  the  agent ; 15  but  it  does  not 
conclude  plaintiff  as  to  the  amount.16  If  a  receipt  was  given  by 
defendant  to  the  plaintiff,  or  to  the  third  person  from  whom  the 


I  See  Ford  v.  Williams,  21  How.  U.  S.  287;  Hubbert  v.  Borden,  6  Whart.  (Penn.) 
79,91. 

s  See  N.  J.  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  U.  S.  344,  381. 

8  Stuir  v.  York  Nat'l  Bank,  65  Penn.  St.  364,  s.  P.  Bank  v.  Kennedy.  17  Wall.  19. 

4  Darling  v.  Miller,  64  Barb.  149  ;  see  p.  170  of  this  vol.  n.  9,  and  p.  245,  n.  4. 

8  Hayslcp  v.  Gywmer,  1  Ad.  <fe  E.  162. 

6  Stacy  v.  Graham,  3  Duer,  444. 

*  Cnusifliere  v.  Beers,  1  Abb.  Ct.  App.  Dec.  333 ;  Ela  v.  Am.  Merchants'  Union  Ex- 
press Co.  29  Wise.  611,  s.  c.  9  Am.  R.  619;    Cutler  v.  Demmon,  111  Mass.  474 ;    Ross 
V.  Curtis,  80  Barb.  238. 

8  Price  v.  Oriental  Bank,  38  Law.  J.  N.  S.  41,  s.  c.  26  Weekly  R.  643. 

*  As,  for  instance,  where  plaintiff  has  acted  on  the  representation  by  settling  with 
third  persons,  or  as  in  the  case  of  a  sheriff's  return.     See  also  Bullard  v.  Hascall,  25 
Mich.  132. 

10  Tuttle  v  Mayo,  7  Johns.  132. 

II  Newman  v.  North  Am.  Steamship  Co.  113  Mass.  362. 
12  Gilchrist  v.  Cunningham,  8  Wend.  641. 

IS  Manah:m  v.  Gibbons,  19  Johns.  427. 

14  As  to  qualified  oral  admissions,  see  p.  266  of  this  voL 

15  Thalheimer  v.  Brinckerhoff,  6  Cow.  90. 
"  Mains  v.  Ilaight,  14  Barb.  76. 


276  ACTIONS  FOR  MONEY  RECEIVED 

money  was  received,  it  is  not  necessary  to  produce  or  account  for 
it,  unless  some  question  arises  on  its  terms.  Its  terms  are  not 
conclusive  against  either  party,  but  explainable  by  parol,1  unless 
grounds  for  an  estoppel  appear. 

Where  defendant  s  duty  was  to  sell  and  collect,  evidence  of  a 
sale  alone  is  not  alone  enough 2  without  other  evidence  raising  a 
presumption  of  collection.  But  if  defendant  is  a  wrong-doer,  or 
neglect  to  collect  were  a  breach  of  duty,  his  admission  that  he 
had  sold  the  goods  is  enough  to  go  to  the  jury  from  which  they 
may  infer  receipt  of  proceeds.8 

If  the  money  was  received  by  collecting  a  written  security  or 
evidence  of  debt  from  a  third  person,4  the  instrument  need  not 
be  produced  or  accounted  for  in  order  to  let  in  parol  proof  of  the 
collection  of  the  sum  due  on  it ; 5  but  the  instrument  is  competent 
in  favor  of  plaintiff  if  he  chooses  to  put  it  in  evidence,6  and  being 
only  collaterally  in  question,  subscribing  witnesses  need  not  be 
produced  unless  it  is  under  seal.7 

5.  —  by  an  agent  of  defendant^ — If  payment  to  a  third  per- 
son is  relied  on,  there  must  be  some  evidence  that  he  was  defend- 
ant's agent.8  Evidence  of  the  declarations  of  the  alleged  agent 
are  not  competent  for  the  purpose  of  proving  the  agency,  unless 
there  is  something  to  connect  the  defendant  with  the  declara- 
tions.9 Evidence  that  the  defendant  was  informed  by  the  alleged 
agent  of  his  receipt  of  the  fund,  and  thereupon  gave  him  direc- 
tions as  to  its  disposal,  is  competent  evidence  that  defendant  re- 
ceived the  money.10  Where  the  authority  shown  was  not  a  general 
agency,  but  a  special  authority, — particularly  if  conferred  by  a 
principal  acting  in  autre  drcnt,  as,  for  instance,  an  executor  au- 
thorizing an  attorney  to  take  out  ancillary  administration  in  an- 
other State  and  sell  assets  there, — the  person  dealing  with  the 
agent  must  look  to  his  authority,  and  cannot  recover  of  the  prin- 
cipal on  proof  of  money  received  by  the  agent  only.11  A  sufficient 
agency  having  been  proved,  a  receipt  given,  or  admission  of  pay- 


1  "White  v.  Parker,  8  Barb.  48,  69 ;  Phelps  v.  Bostwick,  22  Barb.  314  ;  Union  Bank 
v.  Solles,  2  Strobh.  890. 

4  Haskins  v.  Dunham,  Anth.  N.  P.  111. 

»  Hathaway  v.  Burr,  21  Me.  567. 

4  As,  for  instance,  where  one  who  collected  a  running  account  (Planters'  Bank  v. 


draft  (Bullard  v.  Hascall,  25  Mich.  132;  Sally  v.  Capps,  1  Ala.  121),  is  sued  for  the 
proceeds,  plaintiff  need  not  produce  nor  account  for  the  instrument 
6  S.  P.  Steele  v.  Lord,  70  N.  Y.  283. 

8  See,  for  instance,  French  v.  Shreeve,  18  N.  J.  L.  (3  Harr.)  147;  Geisse  v.  Dob- 
eon,  3  Whart.  (Penn.)  84. 

'  Rundle  v.  Allison,  34  N.  Y.  180,  184. 

*  Farias  v.  De  Lizardi,  4  Rob.  407 ;  and  see  p.  241  of  this  yoL 

9  Snoc.k  v.  Lord,  56  N.  Y.  605. 

10  Coates  v.  Bainbridgp,  5  Bing.  58. 

11  Owings  v.  Hull,  9  Pet.  607. 


BY  DEFENDANT  FOR  PLAINTIFFS  USE.  277 

ment  made,  by  the  agent,  at  the  time  of  the  transaction,  is  admis- 
sible against  the  principal.1 

6.  The  medium  and  amount  of  payment.'} — The  evidence 
must  show  payment  of  money,  or  that  which  the  parties  treated 
as  money,  or  which  the  defendant  ought  to  account  for  as  such. 
Evidence  of  the  receipt  of  foreign  money  is  competent ; a  so,  of 
course,  of  bank  notes  ;3  but  defendant  may  show  the  depreciated 
character  of  the  medium  of  payment,  except  where  it  was  a  breach 
of  his  duty  to  plaintiff  to  accept  such  currency.4    The  delivery  of 
non-negotiable  things  in  action,  or  other  property,  is  not  appro- 
priate under  an  allegation  of  money  received,5  unless  connected 
with  evidence  that  defendant  expressly  accepted  the  property 
as  a  payment  of  money,  or  that  he  has  actually  turned  it  into 
money  or  its  equivalent,  or  that  it  was  intended  between  him  and 
the  plaintiff  to  be  sold,  and  sufficient  time  has  elapsed  to  do  so, 
and  that  he  is  in  default  for  not  accounting.     A  credit  in  account 
with  a  third  person  may  be  proved  under  an  allegation  of  money 
received,  if  accepted  by  defendant  as  a  set   off  equivalent  to 
money,6  or  if  allowed  in  violation  of  his  duty  and  to  the  preju- 
dice of  plaintiff.     Under  the  new  procedure,  however,  if  defend- 
ant is  shown  to  have  received  money  value,  a  variance  in  the  me- 
dium is  not  an  entire  failure  of  proof,  but  material  if  defendant 
is  prejudiced.    The  evidence  must  tend  to  show  a  definite  sum,7 
or  certain  data  from  which,  by  an  arithmetical  calculation,  the 
jury  may  ascertain  the  sum,8  and  it  is  no  objection  that  the  fund 
was  received  mixed  with  other  moneys,  if  a  several  right  of  ac- 
tion is  shown  to  exist  in  plaintiff  for  his  share.9    Variance  in  the 
amount  may  be  disregarded,10  within  the  limits  of  recovery  fixed 
by  the  demand  for  judgment.     If  the  receipt  of  coins  or  bank 
notes  is  proved  without  proof  of  their  denomination,  the  smallest 
denomination  in  circulation  is  to  be  presumed,11  in  the  absence  of 
fraud  or  fraudulent  concealment. 

7.  Action  by  depositor  against  bank.'] — A  certificate  of  de- 
posit,12 as  well  as  evidence  of  an  ordinary  deposit  in  account,  is 
competent  in  an  action  for  money  received.    An  ordinary  certifi- 
cate of  deposit  is  not  a  contract,  within  the  rule  excluding  parol 


1  Thallhimer  v.  Brinckerhoff,  6  Cow.  90 ;  s.  p.  Anderson  v.  Broad,  2  E.  D.  Smith, 
580,  8.  c.  12  N.  Y.  Leg.  Obs.  187. 

*  Ehrensperger  v.  Anderson,  3  Exch.  149,  156. 

*  I'ickard  v.  Bankes,  13  East,  20. 

4  See  Cockrill  v.  Kirkpatrick,  9  Mo.  688. 

*  Nightingale  v.  Devisme,  5  Burr.  2589. 

*  Noy  v.  Reynolds,  1  Ad.  &  E.  159. 

7  Harvey  v.  Archbold,  3  B.  A  C.  626. 

*  Taukersk-y  v.  Childers,  23  Ala.  781. 
»  See  Green  v.  Givan,  33  N.  Y.  343. 

10  Lass  v.  Wetmore,  2  Sweeny,  209. 

11  2  Greenl.  Ev.  109,  §  129a. 

19  Talladega  Ins.  Co.  v.  Landers,  43  Ala.  116,  134. 


278  ACTIONS  FOR  MONEY  RECEIVED 

evidence,1  and  if  it  be,  parol  evidence  is  competent  to  explain  ab- 
breviations, etc.,  in  it,2  and  to  charge  the  bank  by  showing  that 
the  depositor  justly  supposed  he  was  dealing  with  them  although 
the  certificate  was  signed  by  an  officer  individually.3 

Evidence  of  usage  is  not  admissible  to  show  that  deposits 
made  during  depreciation  of  currency,  and  marked  in  the  pass-book 
respectively,  "  coin  "  or  "  currency,  were  always  to  be  repaid  in 
kind,  for  without  special  agreement,  a  bank  deposit  creates  a  debt, 
and  whatever  is  legal  tender  will  discharge  it.  Usage  cannot  alter 
the  law.4  The  fact  that  plaintiff's  book  has  been  balanced,  does 
not  dispense  with  the  necessity  of  proving  demand  before  suit.5 
The  balancing  and  return  of  the  pass-book  has  the  effect  of 
an  account  stated,  but  a  depositor  is  not  concluded  if  he  objects 
within  a  reasonable  time ; 6  still  the  burden  is  upon  him  to  show 
the  error.7  Drawing  for  the  precise  balance  is  evidence  of  ac- 
quiescence.8 But  payments  by  the  bank  on  checks  in  which  the 
depositor's  signature  was  forged,9  are  made  in  their  own  wrong, 
and  plaintiff's  delay  to  discover  the  forgery  does  not  avail  de- 
fendants,10 unless  defendants  show  negligence  to  their  prejudice.11 
The  books  of  the  bank  are  evidence  against  it,12  but  not  in  its 
favor.13  The  declarations  of  plaintiff,  made  at  the  time  of  the 
deposit,  as  part  of  the  res  gestce,  are  competent  in  his  favor, — for 
instance,  to  prove  the  capacity  in  which  he  claimed  to  hold  the 


1  Hotchkiss  v.  Mosher,  48  N,  Y.  478. 

*  Hulbert  v.  Carver,  37  Barb.  62,  and  cases  cited. 

8  Coleman  v.  First  Nat'l  Bk.  of  Elmira,  63  N.  Y.  388,  894;  and  although,  as  be- 
tween the  officer  and  the  bank,  it  was  the  officer's  private  transaction.     Caldwell  v. 
Nat'l  Mohawk  Valley  Bk.  64  Barb.  333.     Whether  deposit  was  made  with  teller,  as 
such,  or  personally,  a  question  of  fact  for  the  jury.     Id. ;  Pattison  v.  Syracuse  Na- 
tional Bank,  4  Supiri.  Ct.  (T.  <fe  C.)  96. 

*  Thompson  v.  Riggs,  5  Wall.  663,  680.     Contra,  Chesapeake  Bk.  v.  Swain,  29 
Md.  483.     As  to  when  the  credit  given  for  a  deposit  is  conclusive,  see  Manhattan  Co. 
v.  Lydig,  4  Johns.  377;   Mechanics'  <fe  Farmers'  Bk.  v.  Smith,  16  Id.  115  ;   Oddie  v. 
Nat'l  City  Bk.  45  N.  Y.  735;  Hepburn  v.  Citizen's  Bk.  2  La  Ann.  1007. 

5  Downes  v.  Phoenix  Bank,  6  Hill,  297 ;  and  see  Payne  v.  Gardiner,  29  N.  Y.  146. 

•  Schneider  v.  Irving  Bank,  1  Daly,  600,  s.  c.  30  How.  Pr.  190 ;  Hutchinson  v. 
Market  Bank,  48  Barb.  302. 

7  Shepard  v.  Batik  of  State  of  Missouri,  15  Mo.  143. 

•  Lockwood  v.  Thome,  11  N.  Y.  170,  rev'-j  12  Barb.  487. 

9  Weisser  v.  Denison,  10  N.  Y.  68.     Otherwise  of  raised  checks,  p.  270  of  this 
vol. 

10  Welsh  v.  German  American  Bank,  42  Super.  Ct.  (J.  <fe  S.)  462. 

11  Page  269  of  this  vol.     In  an  action  against  a  savings  bank  for  a  mispayment, 
where  the  bank  relies  on  its  rule  that  it  will  only  be  responsible  for  ordinary  care 
and  diligence,  if  the  two  signatures  were  so  dissimilar  that  when  compared  the  discrep- 
ancy would  be  easily  and  readily  discovered  by  a  person  competent  for  the  position, 
then  the  failure  to  discover  it  would  be  evidence  of  negligence  which  should  iio  to 
the  jury.     Otherwise,  if  the  difference  was  not  marked  and  apparent,  or  if  it  would 
require  a  critical  examination  to  detect  it,  and  especially  if  the  discrepancy  was  one 
as  to  which  competent  persons  might  honestly  differ  in  opinion.     Appleby  v.  Erie 
Co.  Savings  Br.nk.  62  N.  Y.  12. 

IJ  ^ee  p.  52  of  this  vol. 

u  White  v.  Ambler,  8  N.  Y.  170.     Unless  it  be  a  foreign  corporation.     Page  52 
of  this  voL 


BY  DEFENDANT  FOR  PLAINTIFFS  USE.  279 

fund, — and  the  declarations  of  an  officer  or  clerk  of  the  bank, 
made  in  reference  to  the  accounts,  while  acting  in  the  course  of 
his  duty  as  such,  are  also  competent  against  the  hank.1 

8.  Bantts  action  for  over-draft] — In  the  action  of  the  bank 
against  a  depositor  for  an  over-draft,  the  presumption  is  that  the 
depositor  had  funds  there  to  meet  any  check  drawn  by  him  which 
they  are  shown  to  have  paid,2  and  the  books  of  the  bank  are  not 
of  themselves  evidence  in  their  favor,  of  the  state  of  his   ac- 
count.3 

9.  Action  by  principal  against  his  agent.~\ — The  agency  of 
defendant  may  be  proved  by  direct  testimony  to  the  fact,4  or  by 
the  acts  and  conduct  of  the  parties,  and  evidence  of  what  passed 
between  them  in  reference  to  the  transactions  in  question.*     The 
fact  that  defendant  received  or  charged  commissions  is  cogent 
evidence  of  agency.6     On  the  question  of  agency  in  a  particular 
transaction,  when  the  testimony  is  in  conflict,  the  fact  that  de- 
fendant had  acted  as  such  agent   in  previous  transactions  for 
plaintiff  is  admissible  to  explain  the  language  and  writings  of  the 
parties  in  the  transaction  in  question.     But  the  evidence  of  such 
fact  (if  not  sufficient  to  prove  a  general  agency)  is  not  competent 
for  the  purpose  of  proving  an  agency  in  the  particular  transac- 
tion, or  even  in  determining  the  credibility  of  the  conflicting  testi- 
mony.  The  principle  upon  which  evidence  of  similar  transactions 
to  the  one  in  issue  is  admitted,  is  to  explain  intent,  not  to  prove 
the  act  or  its  probability.7    Under  an  allegation  of  agency,  evi- 
dence of  a  joint  adventure  is  not  a  failure  of  proof,  but  raises  a 
question  of  variance.8 

A  general  receipt  may  be  explained  by  parol,  even  though  it 
contain  a  general  promise  to  account.9  But  when  the  receipt 
embodies  a  contract, — as,  for  instance,  where  it  prescribes  the 
manner  in  which  the  money  is  to  be  appropriated, — it  is  not 


1  Price  v.  Marsh,  1  Car  <fc  P.  60 ;  p.  44  of  this  vol.  note  2. 
1  White  v.  Ambler,  8  N.  Y.  170. 

•  Id. ;  State  B;mk  v.  Clark,  1  Hawks,  36 ;  p.  244  of  this  vol.     Unless  it  be  a  foreign 
corporation  (p.  62),  or  it  be  shown  that  the  bank  furnished  transcripts  to  its  depos- 
itors, so  that  its  officers  can  be  deemed  to  have  been  the  agents  of  both  parties  for 
the  purpose  of  keeping  the  account  (Union  Bank  v.  Knapp,  3  Pick.  96 },  or  some  other 
special  ground  is  shown.     See  p.  53  of  this  vol.     As  to  negligence  in  permitting 
plainti.Ts  clerk  or  officer  to  make  over-drafts,  see  Manufacturers'  Nat.  Bk.  v.  Barnes, 
65  111.  69,  s.  c.  16  Am.  R.  576 ;  Tradesman's  Bank  v.  Astor,  11  Wend.  87. 

4  See  pp.  241,  250  of  this  vol. 

B  A  circular,  stuncil  plate,  and  form  of  invoice  delivered  to  plaintiff  by  defendant, 
while  soliciting  consignments,  of  goods  for  sale, — Held  competent  as  evidence  bearing 
upon  the  consignments  and  the  terms  on  which  they  were  made,  and  the  character  in 
which  defendant  proposed  to  plaintiff  to  act  in  receiving.  Whittaker  v.  Chapman,  3 
Lans.  155. 

•  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  698,  s.  c.  8  Moak's  Eng.  217. 

1  Richards  v.  Millard.  66  N.  Y.  674,  rev*g  1  Supm.  Ct.  (T.  <fc  C.)  247. 
8  Power  v.  Fisher,  8  Bosw  258.     Otherwise  of  an  allegation  of  loan;  for  there  is 
agency  in  a  partnership  or  joint  adventure,  but  none  in  a  loan. 

•  Eaton  v.  Alg  r,  2  Abb.  Ct.  App.  Dec.  5. 


280  ACTIONS  FOR  MONEY   RECEIVED 

liable  to  be  varied  by  parol  evidence ; l  though  a  subsequent  parol 
agreement,  superceding  that  shown  by  the  receipt,  may  be 
proved.2  When  an  attorney  gives  a  general  receipt  for  the  evi- 
dence of  a  debt  then  due,  it  is  presumed  that  he  received  it  as  at- 
torney, for  collection  ;  and  the  burden  is  on  him  to  show  that  he 
received  it  specially  and  for  some  other  purposes.8  Notwith- 
standing writings  between  the  parties  in  which  the  transaction 
appears  as  an  assignment  from  plaintiff  to  defendant,  or  a  con- 
veyance showing  a  sale  from  defendant  to  plaintiff,  parol  evidence 
is  competent  to  show  that  their  relation  was  that  of  principal  and 
agent,  and,  therefore,  that  the  defendant  is  accountable  for  the 
property  or  transaction.  The  legal  effect  of  the  instrument  as 
between  the  parties  thereto  is  not  varied  by  this  proof,  but  only 
the  accountability  of  defendant.4  And  where  plaintiff  relies  on 
defendant's  conveyance  or  bill  of  sale  to  prove  a  sale  by  him,  the 
consideration  named,  though  prima  facie  evidence  in  plaintiffs 
favor,  is  not  conclusive,  but  parol  evidence  is  competent  to  vary 
it.5  Partners  may  be  held  on  their  agreement  to  account  and 
pay  over,  although  one  had  withdrawn  before  the  sales,  and  the 
moneys  were  received  by  the  other  only.6  On  an  allegation  that 
money  was  received  by  his  agent,  plaintiff  may  recover  on  proof 
that  he  received  property  of  substantial  pecuniary  value,7  or 
notes  which  were  good  and  collectable,8  and  by  his  transactions 
he  released  the  debtor  and  deprived  his  principal  of  all  remedy 
except  against  himself.9  Profits  made  by  an  agent  in  his  employ- 
ment belong  absolutely  to  his  principal,  and  he  may  recover  them 
as  money  received.10  Refusal  of  an  agent,  after  reasonable  time, 
to  account  for  goods  delivered  to  him  for  sale  raises  the  presump- 
tion that  he  has  sold  them  and  has  the  proceeds  ;  u  and  the  in- 
voice which  was  delivered  to  him,  and  is  unexplained  by  him,  is 
evidence  that  all  the  articles  named  in  it  came  to  his  possession, 
and  raises  a  presumption  against  him  that  he  sold  them  at  least 
for  as  much  as  the  invoice  prices.13  The  source  of  the  money  re- 
ceived, and  circumstances  of  its  receipt,  not  being  within  plaint- 
iff's knowledge,  he  is  not  held  to  strictness  of  allegation  and 
proof  in  that  respect.13  In  cases  of  long  continued  fraudulent 
embezzlement  or  misappropriation  by  one  who  was  exclusively 

1  "Wood  v.  Whiting,  21  Barb.  190.  197. 

I  Egleston  v.  Knickerbock  T.  6  Barb.  458. 

3  Smedes  v.  Elmendorf,  8  Johns.  185. 

4  Richards  v.  Millard,  66  N.  Y.  574,  s.  c.  below,  1  Supm.  Ct.  (T.  <fe  C.)  247. 

8  Mains  v.  Hnight,  14  Barb.  76. 

'  Briggs  v.  Briggs,  15  N.  Y.  471.     Compare  Ayrault  v.  Chamberlin,  26  Barb.  83; 
and  see  chapter  on  PARTNERS;  and  see  Andrews  v.  Jones,  10  Ala.  460. 
7  Beardsley  v.  Root,  11  Johns.  464. 
•  Allen  v.  Brown,  44  N.  Y.  228,  affi'g  Kl  Barb.  86,  and  cases  cited. 

9  Same  cases. 

10  Morison  v.  Thompson,  L.  R.  9  Q.  B.  480. 

II  Hunter  v.  Welch,  1  Stark.  224. 

"  Field  v.  Moulton.  2  Wnsh.  C.  C.  155. 

13  See  IlaU  v.  Morrison,  3  Bosw.  (N.  Y.)  520,  527. 


BY  DEFENDANT  FOE  PLAINTIFFS  USE.  281 

plaintiffs  agent,  if  there  is  sufficient  evidence  of  the  main  fact  to 
go  to  the  jury,  evidence  of  his  previous  insolvency,  and  contem- 
poraneous unexplained  acquisition  of  large  property,  is  relevant ; 
and  his  declarations  concerning  his  property  and  business  trans- 
actions, made  to  third  persons,  in  the  absence  of  the  plaintiff  or 
his  agents,  are  inadmissible  to  rebut  such  evidence.1  To  show  the 
intentional  character  of  false  entries  and  the  like,  evidence  of 
other  such  acts  by  him  (within  reasonable  limits  of  time),  the 
errors  all  being  in  his  own  favor,  is  competent  to  explain  motive 
and  intent.8 

10.  Demand  and  notice:^ — Demand  may  be  inferred  by  the 
jury  from  notice  of  the  mistake  or  other  ground  of  the  demand, 
and  an  informal  request  to  rectify  it.4    Demand  or  instructions 
to  remit  will  not  be  presumed  against  even  a  foreign  factor,  mere- 
ly from  lapse  of  time.5    Where  plaintiff  proves  a  demand  and  re- 
fusal, defendant  has  a  right  to  prove  the  reasons  which  were 
given  by  him  at  the  time.* 

11.  Defendants  evidence."] — Under  a  general  denial  of  the 
contract  alleged,  defendant  may  prove  that  the  contract  contained 
material  provisions  under  which  the  money  was  received,  other 
than  those  alleged,7  or  that  there  was  a  departure  from  the  con- 
tract by  plaintiff's  request,  and  the  money  was  paid  accordingly.8 
Plaintiff's  parol  evidence  to  show  a  rescission  by  subsequent  con- 
sent may  be  met  by  parol  evidence  that,  by  a  still  later  consent, 
the  contract  (although  under  seal)  was  reinstated.9 

An  agent,  sued  by  his  principal,  may  testify  to  his  own  opinion 
as  to  the  necessity  of  the  exercise  of  a  discretion  which  was  vested 
in  him  for  the  purpose  of  the  transactions  on  which  he  is  called  to 
account,10  and  to  his  good  faith  in  its  excercise.11  The  resgistce  are 
compe.tttfit  for  the  same  purpose.12  He  may  testify  generally  that 


I  Boston  &  W.  R.  R.  Co.  v.  Dana,  1  Gray,  83,  101, 103. 
J  Regina  v.  Richardson,  2  F.  &  F.  343. 

8  Whether  demand  is  necessary  in  case  of  mistake,  <fec.,  is  not  agreed.  The  better 
opinion  is  that  where  defendant  is  not  a  wrong-doer,  or  violating  hi?  agreement  (14 
N.  Y.  492),  in  retaining  the  money,  demand,  or  at  least  notice  of  mistake,  given  be- 
fore suit,  must  be  proved*  Moak's  Van  Santv.  PI.  879  ;  Mayor,  <fec.  of  N.  Y.  v.  Erben, 
8  Abb.  Ct.  App.  Dec.  255,  affi'g  10  Bosw.  189.  Contra,  Calais  v.  Whidden,  64  Me. 
249  ;  Utica  Bank  v.  Van  Gieson,  18  Johns.  485.  Unless  defendant  has  put  it  out  of 
his  own  power  to  comply.  The  reasonableness  of  the  rule  is  seen  in  the  fact  that, 
while  the  cause  of  action  ia  in  the  nature  of  an  equitable  one,  the  form  of  the  action 
is  legal,  and  costs  are  not  in  the  discretion  of  the  court 

4  Muir  v.  Rand,  2  Ind.  291.  Compare  Walsh  v.  Ostrander,  22  Wend.  178,  and  2 
Abb.  N.  Y.  Dig.  2d  ed.  642-644. 

•  Halden  v.  Crafts,  4  E.  D.  Smith,  490,  e.  o.  as  Walden  v.  Crafts,  2  Abb.  Pr.  301. 

•  Bennett  v.  Burch,  1  Den.  141. 

T  Marsh  v.  Dodge,  66  N.  Y.  633,  rev*g  4  Hun,  278,  s.  o.  6  Supra.  Ct.  (T.  <k  C.)  668. 

•  Gwynn  v.  Globe  Locom.  Works,  5  Allen,  317. 

•  Flynn  v.  McKeon,  6  Duer,  203. 
10  France  v.  McElhone,  1  Lans.  7. 

II  See  38  N.  Y.  281,  and  cases  cited. 

15  See  p.  245,  n.  4,  and  p.  170,  n.  9  ,  and  Hudson  v.  Crow,  26  Ala.  616,  622. 


282  ACTIONS  FOR  MONET  RECEIVED 

he  paid  over  all  he  had  received,  and  may  testify  to  what  allow* 
ances  were  made  on  settlements  which  are  in  evidence,  although 
there  were  written  receipts.1  Evidence  that  the  usual  course  of 
dealing  was  to  make  daily  returns  and  payments,  without  passing 
any  vouchers,  raises  a  presumption  of  law  that  defendant  had 
fully  accounted,  and  throws  on  plaintiff  the  burden  of  proving 
the  contrary.2  If  defendant  relies  on  plaintiffs  consent  that  he 
retain  to  his  own  use  moneys  received,  the  evidence  of  such  con- 
Bent  should  be  clear  and  satisfactory.8 

Defendant  cannot  exonerate  himself  by  proving  that  he  re- 
ceived the  money  merely  as  agent  for  another,4  unless  the  agency 
was  disclosed  ;5  nor  even  then  if  he  was  a  wrong-doer  in  receiv- 
ing,6 or  paid  over  in  fraud  of  plaintiff's  right.  Defendant's 
agency  for  a  third  person  being  shown,  it  will  not  be  presumed 
that  the  money  had  been  paid  over  to  the  principal,  unless  from 
the  nature  of  the  business,  or  the  usual  course  01  transacting  it, 
it  would  be  expected  that  payment  would  be  made  to  the  prin- 
cipal and  not  to  the  agent.7  To  show  good  faith  in  paying  over, 
the  res  gestcs  of  the  payment  are  competent,8  as  well  as  the  testi- 
mony of  the  defendant.9 

In  respect  to  illegal  consideration,  the  law  recognizes  a  dis- 
tinction between  enforcing  an  illegal  contract  and  asserting  title 
to  money  which  has  arisen  from  it.10  One  who  received  money 
in  trust  to  pay  it  to  plaintiff  in  discharge  of  an  alleged  indebted- 
ness of  the  payer,  cannot  resist  the  action  on  the  ground  that  the 
contract  between  plaintiff  and  the  payer,  out  of  which  the  alleged 
indebtedness  arose,  was  illegal.  The  debtor  waiving  the  objec- 
tion, the  depositary  cannot  avail  himself  of  it.11  The  fact  that  the 
defendant  himself  was  the  agent  by  whom  the  illegal  agreement 
was  made,  does  not  alter  the  case.  It  is  not  ignorance  on  his 
part  of  such  illegality,  but  the  absence  of  any  legal  connection 
between  the  new  promise  of  defendant  to  deliver  such  money  as 
directed  and  the  original  contract,  which  precludes  him  from 


1  France  v.  McElhone,  1  Lans.  7.    See,  however,  chapters  on  ACCOUNTS  STATID 
and  PAYMENT. 

J  Evans  v.  Birch,  3  Campb.  10. 

3  Howe  v.  Savory,  49  Barb.  403,  51  N.  Y.  631. 

4  And  a  custom  of  banks  to  collect  money  as  agents,  without  disclosing  their 
agency,  is  insufficient  to  show  that  a  bank,  in  collecting,  acted  as  agent.     Canal 
Bank  v.  Bank  of  Albany,  1  Hill,  287. 

6  See  Barbour  v.  Litchfield,  4  Abb.  Ct.  App.  Dec.  665,  and  cases  cited ;  and  chap- 
ter on  GOODS  SOLD. 

6  Tugman  v.  Hopkins,  4  M.  <fc  G.  389,  401. 

7  Hathaway  v.  Burr,  21  Me.  667,  672.     In  an  action  against  an  agent  for  monev 
alleged  to  be  due  to  plaintiff, — Held,  that  defendant  might  give  in  evidence  a  verbal 
order  of  his  principal  not  to  pay  the  money.     Thome  v.  Peck,  13  Johns.  315. 

8  See,  for  instance,  Knowlton  v.  Clark,  26  Ind.  395. 
•Seep.  281,  n.  11. 

10  Brooks  v.  Martin.  2  Wall.  81. 

11  Merritt  v.  Millard,  3  Abb.  Ct  App.  Dec.  291,  s.  c.  4  Keyes,  208,  and  cases  cited, 
afn'g  10  Bosw.  309. 


BY  DEFENDANT  FOR  PLAINTIFFS    USE.  283 

setting  up  such  a  defense.1  But  money  received  by  defendant 
under  an  illegal  contract  to  which  plaintiff  was  a  party,  cannot  be 
recovered  if  the  action  requires  the  enforcement  by  the  court  of 
any  unexecuted  provision  of  the  contract.2 


1  Id.;  and  see  Wilkinson  v.  Tousley,  16  Minn.  299,  s.  c.  10  Am.  R.  139.  Charac 
ter  is  not  in  issue  on  the  question  whether  a  debt  was  for  money  lost  at  play. 
Thompson  v.  Brown,  4  Wall.  471. 

4  Woodworth  v.  Bennett,  43  N.  Y.  273,  and  cases  cited,  rev'g  53  Barb.  361.  Com- 
pare Knowlton  V.  Congress  Spring  Co.  67  N.  Y.  518.  Again,  contra,  5  Reporter,  166. 


CHAPTEE  XVI. 


ACTIONS  ARISING  ON  SALES  OF  PERSONAL  PROPERTY. 


L  ACTIONS  FOR  THE  PRICK  OF  GOODS,  <feo. 

1.  Grounds  of  actions. 

2.  Plaintiffs  title. 

3.  License  to  sell 

4.  Ordinary  sale  by  delivery. 

6.  Evidence  of  express  agreement. 

6.  —  made  by  letter  or  telegram. 

7.  Memorandum    under    statute    of 

frauds. 

8.  Explaining  writing  by  parol. 

9.  Proof  of  usage. 

10.  Plaintiff  real  party  in  interest. 

11.  Purchase  by  defendant's  agent. 

12.  Defendant  undisclosed  principal. 
18.  —  liable,  though  acting  asa^ent. 
14.  Assumption    of     third    person's 

order. 

16.  Question    to    whom    credit  was 
given. 

16.  Identifying  the  thing  agreed  for. 

17.  Quiility  and  description. 

18.  Quantity. 

19-23.  Price  and  value. 

24.  Time  for  performance  or  payment. 

25.  Conditions  and  warranties. 

26.  Options. 

27.  Subsequent  modifications. 
28-30.  Delivery,  tender  or  offer. 

31.  Packing  and  freight. 

32.  The  p.issing  of  the  title. 

33.  Delivery  to  satisfy  statute. 
84.  Part  payment. 

35-41.  Documents,   memoranda    and 
accounts. 

42.  Admissions  and  promises  to  pay. 

43.  Auction  sales. 

44.  Sales  by  broker. 

45-47.  Demand,     interest,    non-pay- 
ment. 

IL  DEFENDANT'S  CASE. 

48.  Denial  of  contract. 

49.  Set-off  against  plaintiff's  agent. 

50.  Denial  of  agency  binding  defend- 

ant. 

61.  Plaintiff  an  agent  for  defendant. 

62.  Defendant    not    the    buyer,    but 

agent  for  another. 
53.  By  bidding  at  auction. 


64.  Recission. 

65.  Recoupment. 

66.  Defects  in  title,  quantity  or  qual- 

ity. 

67.  Deceit. 

68.  Inconsistent  remedies. 

69.  Wager  contract. 

ILL     ACTIONS    AGAINST       BUYER      FOB      NOT 
ACCEPTING. 

60.  General  principles. 

61.  Readiness  to  perform. 

IV.  ACTIONS  AGAINST    SELLER  FOR    NON- 

DELIVERY. 

62.  General  principles. 

63.  Orders  and  acceptance. 
64    Readiness  to  perform. 

65.  Object  of  buying. 

66.  Defendants  cave. — Only  an  agent. 

67.  Intermediate  destruction   of   the 

thing  sold. 

V.  ACTIONS  AND    DEFENSES    ARISING   ON 

WARRANTY. 

68.  Grounds  of  action  for  breach  of 

warranty. 

69.  Pleading. 

70.  Warranties  of  things  in  action. 

71.  Warranty  of  title. 

72.  Express  warranty. 

73.  Agent's  authority  to  warrant. 

74.  Implied  warranty  on  executed  sale. 

75.  —  executory  sale. 

76.  Sale  by  sample. 

77.  Presumption  of  knowledge. 

78.  Parol  warranty  on  written  sale. 

79.  Parol  evidence  to  explain. 

80.  Variances  in  contract  and  breach. 

81.  Breach. 

82.  Opinions  of  witnesses. 

83.  Admissions  and  declarations. 

84.  Omission  to  return  the  article. 

85.  Damages. 

86.  Disproof  of  implied  warranty. 

87.  Buyer's  knowledge  of  defect. 

88.  Seller's  good  fai.h. 

89.  Former  adjudication. 

[284J 


THE  FACT  OF  SALE.  285 

I. — ACTIONS  FOB  THE  PRICE  OF  GOODS,  &o. 

1.  Grounds  of  action.'] — The  characteristic  facts  constituting 
the  cause  of  action,  are  that  plaintiff,  at  the  defendant's  request, 
sold  and  delivered  to  him  personal  property  for  which  he  owes 
the  price  or  value.1  These  facts  are  implied  in  and  admissible 
under  a  general  allegation  that  "  defendant  is  indebted  to  plaint- 
iffs in  the  sum  of,  &c.,  for  goods  sold  and  delivered  to  defendant 
bj  plaintiffs  at  a  time  and  place  named,  on  defendant's  request.2 

The  agreement  of  sale  is  of  the  gist  of  the  action.3  Evi- 
dence of  an  agreement  which  is  to  be  regarded  as  one  for  the 
manufacture  of  goods  for  defendant  rather  than  for  a  sale  to 
him,  is  not  an  entire  failure  of  proof ;  and  the  variance  may  be 
disregarded,4  unless  defendant  is  surprised  to  his  prejudice.5  On 
the  other  hand,  if  the  facts  on  which  the  law  raises  an  implied 
promise  to  pay  are  directly  stated,  an  allegation  of  such  promise 
is  not  necessary.6  Under  the  new  procedure,7  as  well  as  at  com- 
mon law,8  where  plaintiff  may  waive  his  right  of  action  for  dam- 
ages for  the  tortious  conversion  of  personal  property,  and  recover 
in  assumpsit,  he  may  prove  the  facts  under  a  complaint  for  goods 
sold  and  delivered.9  If  the  evidence  supports  allegations  in 
the  complaint  of  a  cause  of  action  on  contract,  the  failure  to 
prove  superfluous  allegations  of  fraud,  will  not  prevent  a  recov- 
ery ; 10  but  if  the  fraud  is  alleged  as  the  gist  of  the  action,  so  that 
on  judgment  against  defendant,  execution  would  go  against  his 
person,  a  failure  to  prove  the  fraud  is  fatal,11  unless  an  amend- 
ment is  allowed,  or  a  waiver  of  the  tort  put  on  record. 


I  Allen  v.  Patterson,  1  N.  Y.  (3  Seld.)  476. 

s  Id.     As  to  the  sellers  election  of  remedies,  see  Dustan  v.  McAndrew,  44  N.  Y. 
72,  affi'g  10  Bosw.  130. 

3  On  a  voluntary  delivery  to  defendant,  in  payment  of  his  demand  against  a 
stranger  to  the  transaction,  the  deliverer  cannot  receive  the  value  from  the  deliveree, 
on  the  ground  that  the  delivery  was  made  pursuant  to  a  parol  promise  void  under 
the  statute  of  frauds.     Fowler  v.  Moller,  10  Bosw.  374. 

4  Union  Rubber  Co.  v.  Totnlinson,  1  E.  D.  Smith,  364.  Compare  Prince  v.  Down, 
2  Id.  625. 

6  The  chief  importance  of  the  distinction  is  in  the  fact  that  on  a  contract  for 
manufacture,  <fec.,  compliance  with  the  statute  of  frauds  need  not  be  shown. 

•  Farron  v.  Sherwood,  17  N.  Y.  227. 

7  Weigand  y.  Sichel,  4  Abb.  Ct.  App.  Dec.  595 ;    Abbott  v.  Blossom,  66  Barb. 
853  ;  Harpending  v.  Shoemaker,  37  Id.  270  ;    see  also  Pomeroy  on  Hem,  §  567,  <fec. ; 
Link  v.  Vaughn,  17  Mo.  585 ;  Robinson  v.  Rice,  20  Id.  229. 

8  See  Osborn  v.  Bell,  5  Den.  370 ;    Hinds  v.  Tweddle,  7  How.  Pr.  278,  and  cases 
cited. 

•  To  the  contrary  where  there  was  an  express  contract  to  account.     Moffat  v. 
Wood,  Seld.  Notes,  No.  5,  14 ;  but  see  Roth  v.  Palmer,  27  Barb  652. 

10  Graves  v.  Waite,  69  N.  Y.  156  ;  Ledwich  v.  McKim,  53  Id.  307. 

II  See  Ross  v.  Mather,  61  N.  Y.  108  ;  De  Graw  v.  Elmore,  50  Id.  1.    The  reason  of 
the  rule  is,  that  on  the  one  hand,  if  plaintiff  alleges  and  proves  facts  raising  an  im- 
plied  promise  or  an  express  contract,  the  tortioua  conduct  of  defendant  ought  not  to 
exonerate  him.     On  the  other  hand,  if  the  complaint  states  a  tort  as  the  cause  of 
action,  defendant  may  be  preclude' I  from  pleading  counterclaims,  and  will  be  liable  to 
imprisonment;  hence,  a  failure  tu  prove  the  tort  is  not  a  mere  variance.     If  the 


286  ACTIONS  FOR  PRICE  OF  GOODS,   <feo. 

The  delivery,  under  an  agreement  alleged  as  a  sale  and  deliv- 
ery, or  its  equivalent  so  far  as  plaintiff's  duty  is  concerned,  is 
essential  to  the  theory  of  the  action.1  But  if,  where  proof  of 
delivery  fails,  the  facts  in  evidence  would  sustain  an  action  for 
damages  for  defendant's  refusal  to  complete  his  bargain,  the  case 
is  one  of  variance  merely,  not  of  entire  failure  of  proof,  and  the 
court  or  referee  may  allow  an  amendment.2  So,  under  an  allega- 
tion that  the  sale  and  delivery  was  to  defendant,  evidence  of  a 
sale  to  defendant  on  his  credit,  and  of  delivery  to  a  third  person 
at  his  request,  is  not  an  entire  failure  of  proof,  but  only  a  ques- 
tion of  variance,  even  though  the  sale  was  for  the  benefit  of  such 
third  person.3  Failure  to  prove  a  superfluous  allegation  of 
promise  to  indemnify,  &c.,  may  be  disregarded.4 

For  the  greater  convenience  of  the  reader  we  will  consider 
first,  the  rules  applicable  in  the  more  common  action  for  price, 
although  they  are  to  some  extent  applicable  also  in  actions  for 
refusal  to  deliver,  &c.,  and,  then,  those  peculiar  to  special  and 
executory  contracts,  and  to  warranties. 

2.  Plaintiff's  title  to  the  goods,  c&c.~\ — The  usual  allegation  that 
plaintiffs  sold  and  delivered  goods,  &c.,  sufficiently  imports  that 
the  goods  belonged  to  them?  Evidence  of  title  is  not  usually 
required,6  and  when  required,  unless  title  is  specially  put  in  issue, 
very  slight  evidence  is  enough,  and  if  plaintiff  proves  sale  and 
delivery,7  he  is  not  bound  to  give  further  evidence  of  his  title 
than  the  fact  that  he  had  actual  possession  and  control.8  If  one 
purchases  a  doubtful  right,  he  concedes  the  right,  and  cannot 
afterward  dispute  it  in  an  action  for  the  price.9  On  the  ques- 
tion of  title,  evidence  of  the  plaintiff's  declarations  of  ownership, 
made  while  in  possession  and  before  sale,  and  explanatory  of  the 
existing  possession,  is  competent  in  his  own  favor,  and  if  clear, 
they  are  prim  a  facie  evidence  of  his  title.10  The  admissions  and 
declarations  of  one  under  whom  plaintiff  claims,  and  who  is  de- 


frame  of  the  complaint  is  such  as  to  present  contract  as  the  cause  of  action,  unproved 
allegations  of  tort  are  mere  variance,  to  be  disregarded,  unless  defendant  has  been 
surprised  and  prejudiced.      Contra,  now  by  N.  Y.  Code  Civ.  Pro.  §  629. 
1  Evans  v.  Harris,  19  Barb.  416 ;  Catlin  v.  Tobias,  26  N.  Y.  217. 

*  Dunnigan  v.  Crummey,  44  Barb.  528,  and  cases  cited. 

3  Rogers  v.  Verona,  1  Bosw.  417.   Compare  Cowdin  v.  Gottgetren,  55  N.  Y.  650. 
At  common  law  not  even  a  variance.     Porter  v.  Me  Cluer,  15  Wend,  189,  and  cases 
cited  (BRONSO.V,  J.) ;  and  see  Monroe  v.  Hoff,  5  Den.  360. 

4  Hay  v.  Hall,  28  Barb.  378. 

5  Phillips  v.  Bartlett,  9  Bosw.  678.     And  if  they  were  partners,  an  allegation  of 
partnership  is  not  necessary.     Id.     Under  an  allegation  that  property  belonged  to 
plaintiff,  proof  that  it  was  consigned  to  him  as  factor,  he  being  chargeable  with  its 
value,  whether  sold,  lost,  or  destroyed, — held  not  a  material  variance     Gorum  v 
Carey,  1  Abb.  Pr.  285. 

•'Compare  Gi'more  v.  Wilbur,  18  Pick.  517. 

*  Compare  Cobb  v.  Williams,  7  Johns.  24. 

8  Fitzpatrick  v.  Caplin,  4  E.  D.  Smith,  365 ;   Reilly  v.  Cook,  13  Abb.  Pr.  255, 
8.  c.  22  How.  Pr.  93. 

*  Compare  Costar  v.  Brush,  25  Wend.  628. 

10  Roebke  v.  Andrews,  26  Wis.  311.  Compare  Tilson  v.  Terwilligor,  6t>  N.  Y.  273. 


THE  FACT  OF  SALE.  287 

ceased,  if  against  his  interest  when  made,  are  competent  in  sup- 
port of  plaintiff's  title.1 

3.  License  to  sell.'] — Plaintiff    will  be  presumed  to  have  a 
license,  if  one  be  necessary  to  render  the  sale  lawful.2    But  if  the 
lack  of  one  is  shown,  there  is  no  presumption  that  one  would 
have  been  taken  out  in  time.8 

4.  Ordinary  sale  ly  delivery.'] — The  agreement,  price  and  de- 
livery may  all  be  proved  by  uncontradicted  evidence  showing  an 
account  rendered  by  plaintiff  to  defendant  on  the  face  of  which 
he  is  charged  as  the  buyer,  and  that  he  unqualifiedly  admitted 
the  justice  of  the  demand.4    Where  the  admission  is  susceptible 
of  being  understood  as  referring  only  to  the  correctness  of  items 
in  description  or  price,  other  evidence  of  delivery  of  the  goods 
must  be  adduced.     Admissions  as  proof  of  either -separate  fact 
will  be  further  considered  below.     Under  an  allegation  of  sale 
and  delivery  to  or  by  a  party,  evidence  of  the  act  on  the  part  of 
his  agent  is  admissible.5 

5.  Evidence  of  express  agreement.'] — A  witness  testifying  to  a 
sale,  can  state  it  in  general  terms,  subject  of  course  to  cross-exam- 
ination ;  but  cannot  state  his  opinion  or  understanding,  as  dis- 
tinguished from  his  recollection  or  impression  of  the  acts  and 
conversation  of  the  parties.6    If  it  appear  by  the  testimony  that 
there  was  a  written  contract,  it  must  be  produced,  or  its  absence 
accounted  for,  to  open  the  way  for  parol  evidence  of  its  con- 
tents ; 7  and  plaintiff  must  prove  performance  of  its  conditions. 
A  mere  receipt  for  price,  though  specifying  the  goods,8  or  for  the 
goods,  though  specifying  the  price,  is  not  the  primary  evidence 


1  Thus  in  a  broker's  action,  the  declarations  of  the  owner  of  the  goods  that  he 
had  sold  them,  and  received  the  price  from  the  broker  as  guarantor,  are,  after  the 
death  of  the  declarant,  competent  against  the  buyer,  to  show  that  the  right  of  action 
was  transferred  from  the  declarant  to  the  broker.  White  v.  Choutean,  10  Barb.  202, 
a.  P.  in  a  further  decision,  1  E.  D.  Smith,  493. 

8  Smith  v.  Joyce,  12  Barb.  21 ;  and  see  McPherson  v.  Cheadell,  24  Wend.  15  ; 
Thompson  v.  Sayre,  1  Den.  175. 

3  See  Kane  v.  Johnston,  9  Bosw.  154. 

4  See  Power  v.  Root,  3  E.  D.  Smith,  70;   Jaques  v.  Elmore,  7  Hun,  675;    K  Y. 
Ice  Co.  v.  Parker,  21  How.  Pr.  802;  Griffin  v.  Keith,  1  Hilt.  58;  Webb  v.  Chambers, 
3  Ired.  (No.  Car.)  374.   This  is  the  better  opinion  (see  Pow.  Ev.  226),  although  other 
proof  of  delivery  has  been  sometimes  required  at  circuit. 

6  Sherman  v.  N.  Y.  Central  R.  R.  Co.  22  Barb.  239. 

6  Murray  v.  Bethune,  1   Wend.  191 ;  and  see  on  this  distinction,  3  Abb.  N.  C. 
229.  % 

7  Unless  defendant's  admission  of  its  contents  is  received  as  primary  evidence. 
Slatterie  v.  Pooley,  6  Mees.  &  W.  664.    Compare  Northrup  v.  Jackson,  13  Wend.  85. 
As  to  destruction  of  the  instrument,  see  Tayloe  v.  Riggs,  1  Pet.  691 ;  Steele  v.  Lord, 
70  N.  Y.  280,  and  cases  cied.     Items  charged  in  an  account  as  goods  delivered  on 
defendant's  orders  will  not  be  presumed  to  have  been  delivered  on  written  orders. 
Smith  v.  Joyce,  12  Barb.  21. 

8  See  Terry  v.  Wheeler,  25  N.  Y.  620;  but  compare  Bonesteel  v.  Flack,  41  Barb. 
435,  s.  c.  27  How.  Pr.  310. 


288  ACTIONS  FOR  PRICE  OF  GOODS,  Ac. 

of  the  contract,  such  as  to  render  oral  testimony  secondary  ;*  nor 
is  a  memorandum  of  the  terms  of  sale,  made  by  one  party,2  or  by 
a  witness,3  and  not  communicated  to,  or  not  assented  to  by  the 
other — as  for  instance  where  it  was  made  by  the  broker  of  both 
merely  for  the  purpose  of  preserving  a  charge  of  his  commis- 
sions.* Evidence  that  the  buyer,  after  receiving  a  written  state- 
ment of  terms,  took  possession  of  the  property  without  dissent, 
shows  an  acceptance  of,  and  acquiescence  in  the  terms.5  Where 
the  contract  refers  to  a  written  instrument  not  as  embodying  the 
contract,  but  for  ascertaining  some  of  the  terms  of  the  contract, 
it  is  not  necessary  to  prove  the  execution  of  the  latter  in  order 
to  admit  it  in  evidence  in  establishing  the  contract  sued  on  ;  but 
identifying  it  is  enough.6 

A  contract  for  a  sale  on  fixed  terms  as  to  price  or  otherwise, 
is  admissible  under  a  general  allegation  of  sale  and  delivery,  &c., 
if  all  the  conditions  of  the  contract  are  fulfilled,  and  nothing 
remains  but  payment  of  the  price.7 

A  written  contract  is  admissible  under  an  allegation  of  the 
contract,  not  stating  that  it  was  in  writing ; 8  and  an  allega- 
tion that  there  was  a  writing  is  not  needed,  even  when  the  writ- 
ing is  necessary  by  reason  of  the  'statute  of  frauds.9 

If  the  contract  was  in  duplicate,  the  production  of  either  one 
will  be  enough,  if  signed  by  the  defendant,10  without  producing 
or  accounting  for  the  other.11  If  it  consists  of  two  or  more  parts, 
one  containing  the  consideration  for  the  other,  both  must  be  pro- 
duced or  accounted  for,  unless  the  one  is  complete  in  itself.12 

An  invoice  is,  alone,  no  evidence  of  a  sale,18  but  may  be  made 


1  Southwich  v.  Hayden,  7  Cow.  334.  If  the  sale  was  of  a  note  or  other  written 
evidence  of  debt,  the  rule  does  not  require  the  production  of  the  note,  Ac.  Lamb 
v.  Moberly,  3  Monr.  (Ky.)  179. 

8  Meacham  v.  Pell,  6 1  Barb.  65.  It  is  competent  if  it  was  communicated.  Lath- 
rop  v.  Bramhall,  64  N.  Y.  365. 

3  Parsons  v.  Disbrow,  1  E.  D.  Smith,  547. 

4  Gallaher  v.  Waring,  9  "Wend  28. 

6  Dent  v.  K  A.  Steamship  Co.  49  N.  Y.  390.     Compare  1  Wall.  359. 

6  Smith  v.  N.  Y.  Central  R.  R.  Co.  4  Abb.  Ct.  App.  Dec.  262. 

7  Moffett  v.  ^ackett,  18  N.  Y,  522 ;  Porter  v.  Talcott,  1  Cow.  359,  and  cases  cited. 
And  at  common  law  this  rule  was  applied  where  conditions  not  performed  hnd  been 
forfeited  by  the  defendant.     Corlies  v.  Gardner,  2  Hall,  345;    Clark  v.  Fairchild,  22 
Wend.  583.     Otherwise  now:  see  Oakley  v.  Morton,  11  N.  Y.  25.     Compare  Holmes 
v.  Holmes,  9  N.  Y.  525,  affi'g  12  Barb.  137. 

8  See  page  293  of  this  vol. ;    and  Tuttle  v.  Hannegan,  54  N.  Y.  686,  affi'g  4 
Daly,  92. 

»  1  Greenl.  Ev.  86. 

10  Stephen  Di<j.  Ev.  art.  64. 

11  See  Cleveland,  Ac.  K.  R.  Co.  v.  Perkins,  17  Mich.  296. 

18  Dobbin  v.  Watkins,  Col.  A  C.  Cas.  39,  s.  c.  3  Johns.  Cas.  2  ed.  415.  But  see 
paragraph  44,  and  page  523  of  this  vol. 

18  It  does  not  of  itself  necessarily  indicate  to  whom  the  things  are  sent,  or  even 
that  they  have  been  sent  at,  all.  Hence,  standing  alone,  it  is  never  regarded  as  evi- 
dence of  title.  Dows  v.  National  Exchange  Bank  of  Milwaukee,  91  U.  S.  (1  Otto), 
618,630.  As  between  the  consignor  and  consignee,  the  bill  of  lading  cannot  he 
regarded  as  a  contract  in  writing,  but  merely  as  an  admission  or  declaration  on  the 


THE  FACT  OF  SALE.  289 

relevant  by  connected  writings l  or  parol  evidence  of  intention. 
A  bill  of  parcels  or  particulars,  expressing  that  defendant 
bought  the  goods  of  plaintiff,  if  shown  to  have  accompanied  the 
goods  to  defendant's  possession,2  is  prim  a  facie,  but  not  conclu- 
sive evidence  that  the  transaction  was  a  sale.8 

Oral  evidence  is  competent,  to  show  that  a  mere  receipt  for 
merchandise 4  or  for  the  money  as  an  advance  on  merchandise  to  be 
delivered,3  or  a  mere  unilateral  promise  in  writing  by  the  buyer,  tp 
pay  a  certain  sum,  not  stating  any  terms  of  sale,6  was  given  on  a 
sale,  and  to  prove  the  terms  of  the  sale  ;  for  such  a  receipt  or 
promise  is  not  a  written  contract  within  the  rule  excluding  parol 
evidence  to  explain  or  vary  it.  Otherwise  of  an  instrument  that 
expressly  imports  a  bailment  or  storage,7  unless  shown  to  have 
been  delivered  subsequently  to  a  completed  sale.8 

6.  — made  lyy  letter  or  telegram."] — To  prove  a  contract  made 
by  a  proposal  and  assent  through  correspondence  (as  distinguished 
from  the  filling  of  an  order  received  by  mail),  it  is  not  enough 
to  prove  that  the  proposal  was  assented  to  by  a  mental  act,  nor 
by  conduct  unknown  and  not  communicated  to  the  proposer.9 
But  it  is  not  necessary  to  prove  that  the  assent  actually  came  to 
the  knowledge  of  the  proposer,  nor  does  evidence  that  it  did  not 
come  to  his  knowledge  avail.10  It  is  enough  to  prove  that  the 
assenting  party  duly  mailed  or  delivered  to  the  telegraph  com- 
pany11 (whichever  was  the  adopted  course  of  correspondence),13 
an  unqualified13  assent ;  and  from  the  moment  the  communication 


part  of  the  consignor  as  to  his  purpose,  at  the  time,  in  making  the  shipment,  and 
such  admission  is  subject  to  be  rebutted  by  other  circumstances  connected  with  the 
transaction.  Emery's  Sons  v.  Irving  Nat.  Bank,  25  Ohio  St.  360,  s.  c.  18  Am.  R. 
299 ;  s.  P.  Beebe  v.  Mead,  33  N.  Y.  587. 

1  Buxton  v.  Rust,  L.  R.  7  Exch.  1,  5,  s.  o.  1  Moak's  Eng.  136,  139. 

9  Or  to  have  been  received  by  him  before  delivery  of  the  goods.     Dent  v.  N.  A. 
Steamship  Co.  49  N.  Y.  390. 

8  Sutton  v.  Crosby,  54  Barb.  80 ;  Beebe  v.  Mead  (above). 

4  Though  containing  such  words  as  "  at  $  per  bushel."  Sheldon  v.  Peck,  13 
Barb.  317 ;  or  "  consigned  for  six  months."  George  v.  Joy,  19  N.  H.  544 ;  Benj.  on 
S.  §  213. 

B  Potter  v.  Hopkins,  25  Wend.  417. 

8  Tisdale  v.  Harris,  20  Pick.  9.  , 

7  Wadsworth  v.  Allcott,  6  N.  Y.  64 ;  Stapleton  v.  King,  33  Iowa,  28,  s.  c.  11  Am. 
R.  109.     Compare  Rahilly  v.  Wilson,  3  Dill.  420. 

8  See  Allen  v.  Schuchardt,  1  Am.  L.  Reg.  13 ;  Domestic  Sewing  Machine  Co.  v. 
Anderson,  23  Minn.  57. 

'  White  v.  Corlies,  46  N.  Y.  467.  Compare  Lungstrass  v.  German  Ins.  Co.  40* 
Mo.  201,  s.  c.  8  Am.  R.  100. 

10  Vassar  v.  Camp,  11  N.  Y.  441,  affi'g  14  Barb.  341. 

11  Parka  v.  Comatock,  59  Barb.  16 ;  Trevor  v.  Wood,  86  N.  Y.  307,  8.  c.  3  Abb.  Pr. 
N.  S.  355,  rev'g  41  Bnrb.  255,  s.  o.  26  How.  Pr.  451. 

19  An  offer  sent  by  mail  by  one  who  must  have  known  that  the  regular  usage  of 
conducting  business  waa  to  reply  by  mail,  implies  authority  to  communicate  accept- 
ance by  mail.  Wall's  Case,  L.  R.  15  Equity,  18,  s.  c.  6  Moak's  Eng.  686. 

13  As  to  what  is  a  qualification  such  as  to  preclude  assent,  see  Vassar  v.  Camp,  11 
N.  Y.  44i,  affi'g  14  Barb.  341 ;  Clark  v.  Dales,  20  Barb.  42 ;  Beck's  Case,  L.  R.  V  Oh. 
App.  892,  s.  c.  8  Moak's  Eng.  929. 

10 


290  ACTIONS  FOR  TRICE  OF  GOODS,  Ac. 

thus  passed  beyond  his  control  the  contract  was  complete,1  unless 
the  proposal  had  been  revoked,  by  notice  previously  actually  reach- 
ing nim,2  or  by  the  death  of  the  proposer.8  "Where  the  contract 
is  made  by  correspondence  the  original  letters  or  telegrams  con- 
stituting it  are  the  primary  evidence.  In  the  case  of  a  letter,  the 
original  which  was  actually  sent  must  be  produced  or  accounted 
for,  or  a  duplicate  made  and  signed  as  such  at  the  time.  A  press 
cppy  is  not  competent  in  lieu  of  it  without  laying  proper  founda- 
tion for  secondary  evidence.4  "When  such  foundation  is  laid,  a 
copy  may  be  put  in  evidence  by  calling  the  person  who  made  it, 
or  some  other  witness  who  has  compared  it  with  the  original,  to 
swear  to  its  accuracy.  An  entry  purporting  to  be  a  copy,  made 
in  a  letter-book  by  a  clerk  since  deceased,  is  competent  prima 
facie  evidence  of  the  contents  of  the  original,  upon  proof  that 
according  to  the  usual  course  of  the  employer's  business,  letters 
by  him  were  copied  by  this  clerk  ;  and — if  it  be  a  hand  copy,  not 
a  press  copy — that  this  entry  was  in  the  clerk's  handwriting,  and 
that  in  otner  instances  his  copies  had  been  examined  and  found 
correct.5  Evidence  that  it  was  the  usual  course  of  business  of 
the  deceased  clerk  to  mail  letters  thus  copied  by  him,  is  prima 
facie  evidence  that  the  original  was  mailed.6  A  sworn  copy  of  a 
letter-press  copy  is  competent  secondary  evidence  of  the  contents 
of  the  letter,  without  producing  the  letter-press  copy,  if  produc- 
tion of  the  letter-book  is  offered  and  not  required.7  Where  a 
press  copy  is  produced  as  secondary  evidence,  a  witness  may  be 
asked  if  it  appears  to  be  in  the  handwriting  of  the  party ;  then 
by  proving  that  it  is  a  press  copy,  it  will  follow  that  the  letter 
was  his. 

If  the  communication  was  by  telegraph,  the  appropriate 
primary  evidence,  in  strictness,  is  sometimes  the  original  mes- 
sage delivered  to  the  telegraph  company  by  the  sender,  and  some- 
times the  transcript  delivered  by  the  company  to  the  receiver. 
The  question  depends  on  whether  it  is  desired  to  prove  the  act  of 
the  sender  as  the  manifestation  of  assent,9  or  admission 10  on  his 


1  The  leading  case  is  Mactier  v.  Frith,  6  Wend.  103,  117,  rev'g  1  Paige,  434,  8.  p. 
Re  Imperial  Land  Co.  L.  R.  7  Ch.  587 ;  opposed  in  7  Am.  Law  Rev.  433.  In  the  ap- 
plication of  this  rule  observe  that  it  is  based  on  the  mail  or  telegraph  being  the  usual 
and  proper  course  of  communication.  If  the  parties  are  in  the  same  place,  accept- 
ance sent  by  mail  or  telegraph,  and  not  actually  reaching  the  party,  is  not  enough, 
unless  that  mode  of  communication  was  authorized  by  him,  or  the  proposal  was  com- 
municated by  him  in  the  same  way.  In  general  a  communication  sent  in  either 
method  may  be  accepted  by  assent  put  on  its  course  in  the  same  method. 

8  Wheat  v.  Cross,  31  Md.  99,  s.  c.  1  Am.  R.  28,  and  cases  cited. 

3  See  Mactier  v.  Frith  (above). 

4  1  Tayl.  Ev.  414.     Where  the  copies  are  made  by  manifolding  or  by  printing 
from  a  stencil,  as  in  the  use  of  the  papyrograph  or  electric  pen,  the  principle  that  each 
is  an  original  seems  applicable,  as  in  the  case  of  ordinary  printing. 

6  Pritt  v.  Fairclough,  3  Campb.  305. 

8  Id. ;  and  see  3  Campb.  879  ;  and  61  N.  Y.  362. 

7  Goodrich  v.  Weston,  102  Mass.  3G2,  s.  c.  3  Am.  R.  469. 

8  Commonwealth  v.  Jefferies,  7  Allen,  561. 

9  As  in  Trevor  v.  Wood,  36  N.  Y.  307,  s.  c.  3  Abb.  Pr.  N.  S.  358. 
10  See  Commonwealth  v.  Jefferies,  7  Allen,  563. 


THE  FACT  OF  SALE.  291 

part ;  or  to  prove  actual  notice  to  the  receiver.1  In  the  former 
case,  the  sender's  message  as  delivered  to  the  telegraph  office  is 
primary  evidence.  In  the  latter  case  the  company's  transcript, 
as  delivered  to  the  receiver  is  the  only  primary  evidence.  In 
either  case  the  duplicate  that  is  not  the  primary  evidence  is  com- 
petent as  secondary  evidence,  and  from  it  the  jury  may  infer  the 
other.2  The  telegraph  clerks  are  not  privileged  merely  because 
of  the  character  of  their  vocation.3 

A  written  order,  shown,  by  proof  of  handwriting,4  or  other- 
wise, to  have  come  from  defendant  or  his  authorized  agent,  pro- 
duced from  plaintiffs  possession,  is  competent  without  proof  of 
the  mode  of  its  transmission,  for  it  will  be  presumed  to  have 
been  duly  delivered ; 5  and  if  shown  to  have  been  received  in  due 
course  of  mail,  in  answer  to  letters  mailed  to  the  alleged  writer, 
it  may  be  presumed  to  have  come  from  him.6  The  date  of  the 
paper,  if  it  be  dated,  is  prima  facie  evidence  of  the  time  it  was 
written,7  unless  its  competency  as  evidence  depends  on  the  date, 
in  which  case  plaintiff  should  be  prepared  with  other  evidence  on 
that  point.8  Evidence  that  a  letter  was  duly  mailed9  in  the  post- 
office  or  government  letter  box,10  or  deposited  in  the  box  or  other 
place  where  the  person  addressed  was  accustomed  to  have  his  let- 
ters received,11  will  sustain  an  inference  that  he  received  it,12  even 
though  he  testify  that  he  did  not.13  The  post-mark  is  prima 
facie  evidence  of  the  time  and  place  when  the  communication 
was  in  the  post-office,14  but  not  of  the  time  when  it  was  first 
put  in.15  Its  genuineness  should  be  shown. 

The  mere  fact  that  a  letter  or  telegram  put  in  evidence  was 
sent  in  response  to  a  previous  one,  or  was  one  of  a  series  of  connected 
correspondence,  nor  even  the  fact  that  it  refers  to  the  previous 
letter  to  which  it  was  an  answer,  does  not  render  it  incompetent 


1  As  where  the  offerer  desires  to  revoke;  see  Wheat  v.  Cross,  31  Md.  99,  s.  c.  1 
Am.  R.  28. 

8  See  Commonwealth  v.  Jefferies  (above). 
8  State  v.  Litchfield,  58  Me.  267. 

4  See  Chapter  on  BILLS,  NOTES  AND  CHECKS. 

5  See,  for  this  principle,  p.  259,  paragraph  12;  p.  266,  paragraph  20. 

6  See  Bush  v.  Miller,  13  Barb.  487. 

T  Livingston  v.  Arnoux,  36  N.  Y.  519,  affi'g  15  Abb.  P.  N.  S.  158. 

8  Smith  v.   Shoemaker,  17  Wall.  637.     Compare  Jermain  v.  Dennison,  6  N.  Y. 
276. 

9  Huntley  v.  Whittier,  105  Mass.  891,  s.  o.  7  Am.  R.  536,  and  cas.  cited;  3  Dill.  571. 

10  See  2  Abb.  New  Cas.  70,  note. 

11  Howard  v.  Daly,  61  N.  Y.  366. 

1SA  stricter  rule  is  applied  in  some  other  actions.  See  p.  224  of  this  vol.,  and 
Carpenter  v.  Providence  Ins.  Co.  4  How.  U.  S.  220.  Whether  there  is  a  presump- 
tion by  the  law,  or  only  ground  for  an  inference  by  the  jury,  compare  further,  Allen 
V.  Blunt,  2  Woodb.  &  M.  121,  130 ;  Bank  of  Bellefontaine  v.  McManigle,  69  Penn. 
St.  156,  8.  o.  8  Am.  R.  236. 

18  Huntley  v.  Whittier  (above) ;  Wall's  Case,  L.  R.  15  Eq.  18,  8.  c.  6  Moak's  Eng. 
686,  693. 

14  2  Abb.  New  Cas.  70,  Note.    As  to  ita  genuineness,  see  2  Tayl.  Ev.  1229. 

"Id. 


292  ACTIONS  FOR  PRICE  OF  GOODS,  «ko. 

without  the  other,  nor  compel  him  who  puts  it  in  to  offer  that 
also,  although  it  entitles  the  other  party  to  offer  the  connected 
letter  if  he  desires.1  But  unless  the  communication  on  its  face 
appears  to  embody  all  the  terms  intended  to  be  assented  to,  either 
party  may  show  that  it  was  sent  in  answer  to  a  previous  one  of 
such  nature  that  it  should  be  read  or  taken  with  the  answer,  in 
order  that  the  whole  contract  may  appear  ;2  and  if  this  be  shown, 
the  earlier  letter  will  be  a  necessary  part  of  the  primary  evidence 
of  the  contract.3 

If  the  contract  was  made  by  correspondence,  and  it  is  not 
apparent  on  the  face  of  the  communication  offered  in  evidence 
that  it  was  intended  as  embodying  the  terms  of  the  contract  at 
large,  then  for  the  purpose  of  determining  whether  it  constituted 
the  contract  within  the  rule  which  excludes  oral  evidence  to  vary 
a  contract,  oral  evidence  is  admissible  of  the  circumstances  and 
purpose  in  which  it  was  sent ;  and  the  question  is  whether,  ac- 
cording to  the  intent  and  understanding  of  the  parties  at  the  time 
it  was  sent  and  received,  it  was  the  expression  of  the  contract,  or 
only  a  part  of  it.4  If  the  latter,  the  other  terms  may  be  shown 
by  parol.5  If  the  correspondence  appears  to  embody  the  con- 
tract, it  constitutes  the  primary  evidence,  and  is  within  the  rule 
forbidding  parol  evidence  to  explain  a  writing.6 

T.  Requisite  memorandum  under  Statute  of  Frauds. .] — If  the 
price  is  $50  or  more,  or,  where  no  price  was  fixed,  if  the  value 
be  clearly  proven  to  be  worth  that  sum,7  the  statute  of  frauds8 
requires  evidence  that  the  agreement,  or  some  note  or  memoran- 
dum thereof,  was  in  writing,  and  subscribed 9  by  the  party  to  be 
charged  therewith,10  or  his  lawful  agent,11  unless  part  payment  or 
delivery  is  shown.  The  writing  is  competent  under  a  general 


1  Stone  v.  Sanborn,  104  Mass.  319,  &.  c.  6  Am.  R.  238,  disapproving  1  C.  <fc  K. 
626.     And  see  Gary  v.  Pollard,  14  Allen,  285. 

2  Beach  v.  Raritan,  <fcc.  R.  R.  Co.  37  K  Y.  463,  464. 

3  See  Hough  v.  Brown,  19  N.  Y.  Ill ;  Myers  v.  Smith,  48  Barb.  614  ;  Brisban  v. 
Boyd,  4  Paige.  17 ;  Clark  v.  Dales,  20  Barb.  42  ;  Brayley  v.  Jones,  33  Iowa,  608. 

4  Beach  v.  Raritan,  <fcc.  R.  R.  Co.  37  N.  Y.  463,  464. 
6  Id. 

6  Whitmore  v.  South  Boston  Iron  Co.  2  Allen,  52,  s.  o.  1  Am.  L.  Reg.  408. 

7  See  p.  3  of  this  vol. 

8  N.  Y.  R.  S.  135,  §  2  (3  Id.  6th  ed.  142). 
»  At  the  end. 

10  Subscription  by  both  is  not  essential,  even  on  the  ground  of  mutuality.     Justice 
T.  Lang,  42  N.  Y.  493,  52  N.  Y.  323,  39  Super.  Ct.  (7  J.  &  S.)  283.     And  see  Butler 
v.  Thompson,  92  U.  S.  (2  Otto),  412,  11   Blatchf.  533.      And  the  fact  that  plaintiff 
added  his  signature,  and  afterward  erased  it,  does  not  alone  prevent  his  using  the 
paper  in  evidence.    Rhoades  v.  Castner,  12  Allen,  130.     The  statute  does  not  apply 
to  agreements  for  production  or  manufacture,  as  distinguished  from  agreements  of 
sale.     For  a  ready  clue  to  the  conflicting  cases  on  this  vexed  distinction,  see  Smith 
v.  Jf.  Y.  Central  R.  4  Abb.  Ct.  App.  Dec.  262  ;   Cooke  v.  Millard,  5  Lans.  243,  65  N. 
Y.  352;    Deal  v.  Maxwell,  51  N.  Y.  652;  Flint  v.  Corbett,  6  Daly,  429  ;   Pitkin  v. 
Noyes,  48  N.  H.  294,  s.  c.  2  Am.  R.  218;  Goddard  v.  Binney,  115  Mass.  450,  8.  o.  IB 
Am.  R.  112. 

11  2  N.  Y. 


'    THE  FACT  OF  SALE.  293 

allegation  of  contract  without  specifying  writing.1  If,  however, 
the  complaint  does  not  affirmative!^  indicate  that  the  contract 
was  void  under  the  statute,  and  the  answer  admits  the  contract, 
without  alleging  the  facts  showing  it  to  be  void  under  the  stat- 
ute, evidence  of  compliance  with  the  statute  is  dispensed  with 
by  the  admission.2  The  note  or  memorandum  may  be  distin- 
guished from  the  contract  of  which  it  is  the  evidence.3 

It  matters  not  how  many  papers  must  be  taken  together 
to  make  out  the  note  or  memorandum,4  nor  how  informal  they 
are,5  if  the  statute  is  substantially  complied  with  ;  but  where 
several  papers  are  resorted  to,  each  must  be  subscribed  by  defend- 
ant, or  imported,  by  reference  or  annexation,  into  one  that  is,  leav- 
ing nothing  to  be  supplied  by  parol,  to  complete  the  memorandum, 
except  evidence  of  the  identity  of  the  paper.6  Parol  proof  is  com- 
petent to  supply  the  reference,  where  it  can  be  done  clearly  and 
with  certainty.7  If  the  paper  is  not  addressed  to  plaintiff,  oral 
evidence  of  its  delivery  to  him  is  competent;  but  not  always 
essential.8  If  interlineations  appear,  oral  evidence  that  they  were 
assented  to  is  competent.9  The  memorandum  must  be  complete, 
so  far  as  that  all  elements  of  the  contract  or  engagement  on  the 
part  of  the  defendant,  or  party  sought  to  be  charged,  must  be 
stated,10  or  legally  presumble  from  what  is  stated ; n  and  defects 
cannot  be  supplied  by  parol ; w  but  the  fact  of  its  delivery,13  and 
that  plaintiff,  in  consideration,  promised  to  perform  on  his  part, 
may  be  proven  by  parol,14  as  well  as  the  rate  of  payment,  if  the 


1  Washburn  v.  Franklin,  7  Abb.  Pr.  8,  8.  c.  28  Barb.  27. 

2  Duffy  v.  O'Donovan,  46  N.  Y.  223 ;  Spear  v.  Hart,  3  Robt.  420. 

3  Boardman  v.  Spooner,  13  Allen,  353 ;   Benj.  on  S.  209 ;    Williama  v.  Bacon,  2 
Gray,  387 ;  Marsh  v.  Hyde,  3  Id.  331.     And  see  56  N.  Y.  503. 

•  As,  for  instance,  the  rules  of  an  exchange,  and  the  memoranda  of  a  transaction 
by  its  members  (Peabody  v.  Speyers,  56  N.  Y.  230) ;  or  ordinary  commercial  corre- 
spondence (Thompson  v.  Menck,  4  Abb.  Ct.  App.  Dec.  400,  rev'g  22  How.  Pr.  431 ; 
Leather  Cloth  Co.  v.  Hieronimus,  L.  R.  10  Q.  B.  140,  s.  c.  12  Moak's  Eng.  211). 

6  Same  cases ;  and  see  Argus  Co.  v.  Mayor,  <fec.  of  Albany,  55  N.  Y.  495,  affi'g  in 
effect  7  Lans.  264. 

•  Pierce  v.  Corf,  L.  R.  9  Q.  B.  210,  s.  c.  8  Moak's  Eng.  316.     Thug,  defendant's 
assent  may  be  proved  by  his  writing  in  answer  to  a  request  from  plaintiff  for  the 
contract:  "  I  send  yon  a  copy  of  your  letter  of,  <fcc.,"  inclosing  it.     This,  though  not 
intended  as  a  recognition,  is,  if  signed  by  him,  a  sufficient  signing  of  a  memorandum. 
Buxton  v.  Rust,  L.  R.  7  Exch.  1,  5,  s.  c.  1  Moak's  Eng.  135,  139.     Compare  Hicks  v. 
Cleveland,  48  N.  Y.  84  ;  Neubery  v.  Wall.  65  Id.  484  ;  and  paragraphs  43  and  44. 

i  Beckwith  v.  Talbot,  95  U.  S.  (5  Otto),  289,  292. 

8  Darby  v.  Pettee,  2  Duer,  139 ;  and  see  55  N.  Y.  495 ;  Peabody  v.  Speyer,  56  Id. 
236. 

•  Stewart  v.  Eddowes,  L.  R.  9  Com.  PI.  311,  s.  c.  9  Moak's  Eng.  405. 

10  Wright  v.  Weeks,  25  N.  Y.  153,  affi'g  3  Bosw.  377. 

11  Id. ;  Warren  v.  Wihne,  2  Lans.  209. 

12  Wright  v.  Weeks  (above);  Calkins  v.  Falk,  1  Abb.  Ct.  App.  Dec.  291,  affi'g  39 
Barb.  620.     But  where  the  terms  are  stated,  an  ambiguity  as  to  what  thev  mean  may 
be  cleared  by  oral  evidence,  if  it  can  be  done  by  showing  the  surrounding  circum- 
stances, as  distinguished  from  the  oral  stipulations  of  ttie  parties.     Hagan  v.  Domes- 
tic S:wing  Machine  Co.  9  Hun,  73 ;  and  see  25  N.  Y.  153,   12  Id.  40. 

11  See  55  N.  Y.  504. 

14  This  is  the  sound  principle,  and  goes  further  than  any  other  view  to  harmonize 


294  ACTIONS  FOR  PRICE  OF  GOODS,  <fco. 

memorandum  states  the  means  of  determining  the  rate.1  So  the 
performance  by  the  plaintiff  may  be  proved  by  parol ;  and  evi- 
dence of  a  parol  modification  in  this  respect  does  not  impair  the 
effect  of  the  memorandum.2 

8.  General  rule  as  to  Explaining  writing  by  Parol.'] — In  the 
present  state  of  the  law,  the  rule  excluding  parol  to  vary  a  writ- 
ing, in  its  application  to  commercial  sales,  amounts  to  little 
more  than  this  principle :  viz.,  that  when  the  parties  or  their 
agents  have  embodiecl  the  terms  of  their  agreement  in  writing, 
neither  can,  in  an  action  between  themselves  (unless  impeaching 
the  instrument),  give  oral  evidence  that  they  did  not  mean  that 
which  the  instrument,  when  properly  read,  expresses  or  legally 
implies,  or  that  they  meant  something  inconsistent  therewith. 

In  more  detail,  the  rule  and  its  established  exceptions  may  be 
stated  thus:  A  written  instrument,  although  it  be  a  contract 
within  the  meaning  of  the  rule  on  this  point,  does  not  exclude 
oral  evidence  tending  to  show  the  actual  transaction,  in  the  fol- 
lowing cases : 

1.  Where  the  action  is  not  between  the  parties  to  the  instru- 
ment, nor  those  claiming  under  and  in  privity  with  them.8 

2.  Where  the  object  of  the  evidence  is  to  impeach  the  validity 
of  the  instrument,  or  any  part  of  it.4 

3.  Where  the  object  of  the  evidence  is  to  establish  a  separate 
oral  agreement  constituting  a  condition  precedent  to  the  existence 
of  an  obligation  claimed  to  arise  on  the  instrument.5 

4.  Where  the  object  of  the  evidence  is  simply  to  show  the 
surrounding  circumstances  of  the  parties,  and  of  the  subject  of 
the  contract,  and  the  usages  of  language  under  which  the  instru- 
ment was  written,  in    order   to    enable  the  court  to  read  the 
instrument  with  the  same  knowledge  with  which  the  parties 
wrote  it.6 

5.  Where  the  language  of  the  instrument  leaves  its  meaning 


the  conflict  in  the  cases.  See  cases  above  cited,  and  Justice  v.  Lang,  52  N.  Y.  323. 
and  cas.  cited;  Williams  v.  Morris,  U.  S.  Supreme  Ct.  (17  Alb.  L.  J.)  56.  But  of 
course  acceptance  with  modification  cannot  be  proved  by  parol.  Jenness  v.  Mount 
Hope  Iron  Co.  53  Me.  20;  Benj.  on  S.  §  210. 

1  As  where  it  specified  "  current  rates  "  (55  N.  Y.  504),  or  even  left  the  parties  to 
a  quantum  meruit.  Id.  Compare  Stone  v.  Browning,  68  N.  Y.  598. 

8  Leather  Cloth  Co.  v.  Hieronimus  (above). 

3  See  page  7  of  this  vol.,  paragraph  16,  and  Coleman  v.  First  Nat.  Bank,  53  N.Y.  388. 

4  As,  for  instance,  for  want  of  due  execution  or  delivery,  or  for  illegality,  fraud, 
duress,  or  lack  of  consideration,  or  as  made  under  mistake  (see  chap.  14,  and  the  chap- 
ters on  these  defenses),  and  the  rnle  is  the  same  whether  the  party  adducing  the  evi- 
dence seeks  to  avoid  the  instrument,  or  to  have  it  reformed.     1  Story's  Eq.  Jur. 
§  156,  Ac. 

5  Pym  v.  Campbell,  6  E.  &  B.  370;  Wallis  v.  Littell,  11  C.  B.  N.  S.  369.     Other- 
wise of  a  deed  delivered  to  the  party.     "Worrall  v.  Munn,  5  N.  Y.  229.     A  condition 
tubsequent  cannot  be  proved  by  parol.     Gridley  v.  Dole,  4  N.  Y.  486. 

6  See  p.  130  of  this  vol. ;  and  Dana  v.  Fiedler,  12  N.  Y.  40,  affi'g  1  E.  D.  Smith, 
463  :  Pollen  v.  Le  Roy,  30  N.  Y.  549,  affi'g  10  Bosw.  38 ;  Messmore  v.  N.  Y.  Shot  & 
Lead  Co.  40  N.  Y.  422. 


THE  FACT  OF  SALE.  295 

doubtful,1  or  extrinsic  facts  in  evidence  raise  a  doubt  in  respect 
to  its  application.2 

6.  Where  it  appears  that  the  instrument  was  not  intended  to 
be  a  complete  and  final  statement  of  the  whole  transaction,  and 
the  object  of  the  evidence  is  simply  to  establish  a  separate  oral 
agreement  on  a  matter  as  to  which  the  instrument  is  silent,  and 
which  is  not  contrary  to  its  terms,  nor  to  their  legal  effect.3 

7.  Where  the  object  of  the  evidence  is  to  show  a  usage  legally 
affecting  the  parties,  by  which  incidents  not  expressly  mentioned 
in  such  contracts  are  annexed  to  or  implied  in   them,  if  the 
usage  be  not  repugnant  either  to  the  express  terms  or  the  legal 
effect  of  the  contract.4 

8.  To  show,  if  the  contract  be  unsealed,  that  it  was  made  for 
the  benefit  and  on  behalf  of  the  partv  suing  or  sued  upon  it,  even 
though  he  be  not  named  in  it ;  or,  if  it  be  sealed,  that  it  was  so 
made,  and  has  been  duly  ratified  by  such  party.5 

9.  To  show  that  the  date  was  erroneous.6 

10.  To  show  that  the  consideration  was  different  from  that 
stated  (except  for  the  purpose  of  defeating  the  instrument),7  or 
that  it  was  not  paid,  though  payment  was  acknowledged.8 

11.  To  show  that  a  transfer  absolute  on  its  face  was  given  as 
security 9  or  in  trust.10 

12.  To  show  the  mistake  which  caused  a  repugnancy  appear- 
ing on  the  face  of  the  instrument.11 

13.  Where  the  object  of  the  evidence  is  to  show  a  separate 
subsequent  valid  agreement  to  rescind,  modify,  extend,  or  waive  u 
the  contract  or  a  provision  of  it. 

The  rule  that  the  contract  cannot  be  varied  by  parol,  when  it 
is  applicable,  excludes  evidence  which  would  vary  any  obligation 
implied  by  law  from  its  terms,  as  well  as  that  which  would  di- 
rectly vary  its  terms.13 

The  admissibility  of  oral  evidence  under  these  rules  is  subject 
to  the  qualification  that  oral  evidence  cannot  satisfy  the  demand 
of  the  statute  of  frauds  for  a  memorandum  in  writing. 


1  Robinson  v.  United  States,  13  "Wall.  363. 

*  Moore  v.  Meacham,  10  N.  Y.  207;  Agawam  Bank  v.  Stever,  18  N.  Y.  502. 

8  Hcineman  v.  Heard,  39  N.  Y.  98 ;  Blossom  v.  Griffin,  13  N.  Y.  569. 

4  See  paragraph  9. 

5  See  paragraphs  10-12. 

6  Draper  v.  Snow,  20  N.  Y.  331.     And  so  it  seems  of  the  place  of  execution.     Id. 

7  McCrea  v.  Purmort,  16  Wend.  460,  affi'g  5  Paige,  620;  s.  p.  10  N.  Y.  538.    Com- 
pare Halliday  v.  Hart,  30  N.  Y.  474. 

8  Bingham  v.  Weiderwax,  1  N.  Y.  509. 
«  Horn  v.  Keteltas,  46  N.  Y.  605. 

10  Britton  v.  Lorenz.  45  N.  Y.  51,  affi'g  3  Daly,  23 ;  and  see  Chapter  XV. 

11  McNulty  v.  Prentice,  25  Barb.  204. 

13  Stockwell  v.  Holmes,  33  N.  Y.  53  ;    Carroll  v.  Charter  Oak  Ins.  Co.  1  Abb.  Ct 
App.  Dec.  310,  affi'g  40  Barb.  292  ;  but  subject  to  the  statute  of  frauds..   Shultz  v. 
Bradley,  57  N.  Y.  646. 
.     >»  La  Farge  v.  Rickert,  5  Wend.  187;  Thorp  v.  Ross,  4  Abb.  Ct.  App.  Dec.  416. 


ACTIONS  FOR  PRICE  OF  GOODS,  Ac. 

9.  General  rule  as  to  proof  of  Usage.] — The  common  law 
rule  excluding  oral  evidence  in  modification  of  written,  depends, 
so  far  as  contracts  are  concerned,  upon  the  presumption  that 
the  parties  intended  their  writing  to  define  their  rights  and 
liabilities,  and  adopted  the  writing  because  they  did  not  wish  to 
leave  any  question  open  to  the  uncertainty  of  memory.  But  in 
regard  to  commercial  contracts,  especially  sales,  the  known  and 
settled  usages  of  business  are  relied  on  as  a  similar  safeguard ; 
and  from  the  brevity  with  which  commercial  contracts  are 
despatched,  in  the  ordinary  course  of  trade,  arises  another 
counter  presumption  to  the  effect  that  the  parties  did  not  intend 
in  their  memorandum  to  express  what  is  defined  by  the  usages  of 
the  trade,  but  only  those  parts  of  the  transaction  which  usage 
would  not  define,1  together  also  with  any  stipulations  by  which 
they  desired  to  depart  from  the  usage,  and  mate  for  this  transac- 
tion a  different  rule.  The  same  principles  are  involved  where  a 
transaction  is  had  orally,  and  usage  is  relied  on  to  define  its 
effect.  Hence,  the  three  chief  rules  as  to  what  usage  is  provable 
to  establish  or  vary  a  contract  of  sale. 

It  must  be,  1.  A  usage  which  the  parties  knew  or  ought  to 
have  known ;  2.  one  which  is  consistent  with  the  general  law 
merchant ; 2  and  3,  not  incompatible,  either  with  the  express 
terms  of  their  contract,  or  the  legal  obligations  which  the  law 
implies  from  those  terms. 

One  who  is  engaged  in  a  trade  or  business  is  bound  to  know 
its  usages  at  the  place  where  he  acts,  and  as  against  himself  is 
presumed  by  law  to  have  contracted  with  reference  to  them.3 
One  who  is  not  engaged  in  the  business,  but  contracts  with  those 
who  are,  may  be  presumed,  in  the  absence  of  evidence  to  the 
contrary,  to  have  known  its  usages,  and  to  have  contracted  with 
reference  to  them ; 4  but  the  presumption  is  not  conclusive,  and 
he  may  prove  his  ignorance,  even  by  his  own  testimony.5 

Usage  must  be  excluded,  not  only  when  adduced  for  the  pur- 
pose of  nullifying  rules  of  law,  but  equally  when  offered  for  the 
purpose  of  establishing  presumptively  a  stipulation  which  would 
be  valid  if  expressly  made,  but  which  is  contrary  to  the  implica- 


1  Hntton  v.  Warren,  1  Mees.  <fe  W.  474 ;  Wigglesworth  v.  Dallison,  1  Sm.  L.  Ca?. 
[676],  note  in  7th  Am.  ed.  905. 

8  Local  usage  cannot  be  allowed  to  subvert  the  settled  rules  of  law.  Whatever 
tends  to  unsettle  the  law,  and  make  it  different  in  the  different  communities  into 
which  the  State  is  divided,  leads  to  mischievous  consequences,  embarrasses  trade, 
and  is  against  public  policy.  Barnard  v.  Kellogg,  10  Wall.  383. 

3  Robinson  v.  United  States,  13  Wall.  363. 

4  Walls  v.  Bailey,  49  N.  Y.  464,  and  cas.  cited.    Compare  Whitehouse  v.  Moore, 
13  Abb.  Pr.  142.    The  extension  of  this  doctrine  is  disapproved  in  Partridge  v.  Ins. 
Co.  15  Wall.  573. 

s  Walls  v.  Bailey  (above).  And  the  same  presumption  may  be  applied  in  respect 
to  the  usage  or  custom  of  the  contracting  parties.  Dunbar  v.  Pettee,  1  Daly,  112. 


THE  FACT  OF  SALE.  297 

tion  which  the  commercial  law  draws  from  the  stipulations  the 
parties  have  expressed.1 

Usage  of  language  in  a  trade  may  sometimes  be  competent  when 
evidence  of  other  usages  of  the  trade  would  not ;  for  where  the 
usage  is  adduced,  not  so  much  to  supply  what  is  unexpressed,  as 
to  show  the  meaning  of  what  is  expressed,  a  further  principle  is 
involved,  viz.,  that  it  is  always  competent  to  show  by  parol  the 
usages  of  language  of  those  who  adopted  the  writing  ;  and  thus 
what  it  was  in  their  knowledge  that  its  terms  referred  to.2  Hence, 
although  the  terms  used  be  apparently  unambiguous,  evidence  is 
competent  to  show  that  in  the  usage  of  language  in  the  trade  or 
business  in  which  the  words  were  employed,  they  had  a  different 
meaning.3 

As  to  the  mode  of  its  proof, — a  usage  of  trade  cannot  be 
proven  bv  the  understanding  or  opinions  of  witnesses  as  to  the 
law,  or  what  should  be  the  rule,4  but  the  witnesses  should  testify 
to  the  existence  of  the  usage,  which,  if  they  are  qualified,  they  may 
do  either  from  their  own  knowledge  and  experience  of  it,  or  from 
information  derived  through  others  in  the  course  of  trade.5  The 
testimony  of  a  single  witness  is  not  insufficient  to  prove  a  usage 
of  trade,  if  he  has  full  knowledge  and  long  experience  on  the 
subject,  and  testifies  explicitly  to  the  necessary  extent  and  dura- 
tion of  the  usage,  and  is  uncontradicted.6  A  reported  case  in 
which  the  court  held  a  commercial  usage  to  be  established  by 
evidence,  is  relevant  in  other  cases  between  other  parties,  involv- 
ing the  usage  at  the  same  place,7  and  within  reasonable  limits  of 
proximity  in  time. 


1  Thus,  since,  in  the  sale  of  chattels  by  one  not  the  maker  or  grower,  and  not 
guilty  of  fraud,  and  to  a  buyer  having  opportunity  to  examine,  the  law  implie3  no 
warranty,  evidence  of  usage  is  not  competent  to  import  a  warranty  into  the  con- 
tract  Barnard  v.  Kellogg,  10  Wall.  388  (BRADLEY  and  STRONG,  JJ.,  dissented).  Dick- 
inson v.  Gay,  11  Allen,  29;  Benj.  on  Sales,  §  215  ;  and  see  11  Allen,  426. 

4  See  paragraphs  8  and  9. 

3  Myers  v.  Sari,  80  L.  J.  Q.  B.  9,  8.  c.  7  Jur.  N.  S.  97.     For  instances  see  para- 
graphs 8  and  9.    The  cases  which  exclude  usage  adduced  to  explain  unambiguous  terms 
(see  Ins.  Co.  v.  Wright,  1  Wall.  456  ;  and  see  15  Id.  573,  affi'g  1  Dill.  139),  do  not  over- 
throw the  principle  that  it  is  always  competent  under  the  strictest  rules  of  interpre- 
tation, to  show  the  usages  of  speech  and  expression  habitual  to  the  writer.  Evidence 
of  what  he  meant  in  the  contract  by  a  certain  expression  is  not  competent;   but 
evidence  that  he  was  accustomed  to  use  that  expression  in  a  particular  sense,  is;  and 
on  the  same  principle,  evidence  that  the  trade  in  which  he  was  engaged  was  accus- 
tomed to  use  it  in  a  particular  sense,  is  competent ;  and  when  such  evidence  has  been 
given,  the  court  will  read  the  expression  in  the  contract  in  the  light  which  the  usage 
throws  upon  it. 

4  Allen  v.  Merchants'  Bank  of  N.  Y.  22  Wend.  216 ;    and  see  15  Id.  482 ;  Hnwes 
v.   Lawrence,  3  Sandf.   193,  affi'd  in  4  N.  Y.  345;    Collyer  v.  Collins,  17  Abb.  Pr. 
467. 

5  Allen  v.  Merchants'  Bank  (above),  NELSON,  J.    But  compare  Mills  v.  Hallock,  2 
Edw.  652. 

5  Robinson  v.  United  States,  13  Wall.  363  ;  Vail  v.  Rice,  5  X.  Y.  155. 

7  NELSON,  J..  in  Allen  v.  Merchants'  Bank  (above).  Otherwise,  if  the  decision 
proceeded  on  the  concession  of  Ihe  parties  that  the  usage  existed.  Crouch  v.  The  Credit 
Fonder  of  England,  L.  B.  8  Q.  B.  374,  s.  c.  6  Moak's  Eng.  108.  How  far  decisions 


298  ACTIONS  FOR  PRICE  OF  GOODS,  <fcc. 

Cogent  evidence,  however,  is  necessary  to  establish  the  exist- 
ence of  a  usage  of  trade ; l  it  ought  to  be  so  clear  as  to  leave  no 
doubt  that  the  parties  contracted  in  reference  to  it.2 

10.  Plaintiff  the  real  party  in  interest,  though  not  so  named 
in  the  contract.\ — Whatever  may  have  been  the  form  of  the  con- 
tract, unless  under  seal,  and  even  in  that  case  if  it  has  been  rati- 
fied by  the  plaintiff,8  the  plaintiff  may  show,  even  by  oral  evi- 
dence, that  a  party  who  executed  it,  although  apparently  as  the 
principal,  did  so  as  the  agent  of  the  plaintiff ;    and  upon  such 
evidence  the  plaintiff  may  recover,  notwithstanding  the  statute 
of  frauds  applies  to  the  contract,  and  requires  it  to  be  in  writ- 
ing ; 4  subject  to  any  question  of  counterclaim  or  set-off  arising 
from  defendant's  dealings  with  the  agent  in  ignorance  of  his 
agency.     So,   where   one   carries   on  business,   and  sells  goods 
therein  in  the  name  of  another  (although  for  his  own  account), 
the  promise  to  pay  may  be  presumed  to  have  been  made  to  the 
one  in  whose  name  the  business  was  done ; 5  and  he  therefore 
may  recover  thereon ;   although  the  one  by  whom  the  sale  was 
made  might  equally  recover  if  the  other  did  not  object.6 

Where  the  plaintiff  was  the  defendant's  agent,  and  ostensibly 
acted  as  such,  he  cannot  convert  his  position  into  that  of  a  prin- 
cipal to  sell  to  his  employer,  even  by  evidence  of  a  usage  of  trade, 
unless  he  also  shows  that  defendant  knew  and  assented  to  the 
dealing  on  the  footing  of  such  a  usage.7 

11.  Purchase  by  defendant's  agent.] — An  allegation  of  sale 
to  .defendant  will  admit  evidence  of  a  sale  to  his  agent,  and  of  the 
agent's  authority.8     The  three  elements  in  the  proof  of  purchase 
by  an  agent  are,  the  fact  that  an  agency  existed ;  that  the  scope 


of  State  courts  are  evidence  in  the  United  States  courts,  of  commercial  usage, 
see  Mende  v.  Beale,  Taney,  339,  359. 

1  Citizen's  Bank  of  Baltimore  v.  Grafflin,  31  Md.  507,  8.  c.  1  Am.  R.  66 ;  Randall 
V.  Smith,  18  Am.  R.  200,  note,  207. 

4  Dawson  v.  Kittle,  4  Hill,  107  ;  and  see  Goodyear  v.  Ogden,  Id.  104. 

3  Briggs  v.  Partridge,  64  N.  Y.,  and  cases  cited. 

4  Hubbert  v.  Borden,  6  Whart.  (Penn.)  70  ;  Nash  v.  Tonne,  6  Wafl.  703  ;  Salmon 
Falls,  <fcc.  Co.  v.  Goddard,  14  How.  U.S.  446;    Eastern  R.   R.  Co.  v.   Benedict,  5 
Gray,  561;    Alexander  v.  Moore,   19  Mo.   143;    Benj.  on  S.  §§  210,  219,  n. ;    and 
see  paragraph  8,  and  «ase3  cited.     The  rule  is  the  same  whether  the  agency  was 
disclosed  in  the  contract,  or  only  orally,  or  not  at  all;    and  whether  defendant  was 
seller  or  buyer.     Same  cases.     For  a  stroiig  case  of  presumption  of  ratification,  see 
Hampton  v.  Rouse,  22  Wall.  272. 

In  an  action  to  recover  for  stock  to  be  given  under  thn  terms  of  a  written  contract  to 
"J.  S.,  president  of  the  Eastern  Railroad  Company,"  in  payment  for  iron  sold, — Held, 
that  the  company  suing  could  prove  that  the  iron  belonged  to  it,  and  that  its  president 
acted  merely  as  its  agent  in  the  transaction,  and  that  it  could  maintain  the  action  in 
its  own  name.  Eastern  Railroad  Co.  v.  Benedict,  f>  Gray,  .561 ;  Benj.  on  S.,  §  219,  n. 

6  Alsop  v.  Caines,  10  Johns.  396;  affi'd,  as  Caines  v.  Brisban,  J3  Id.  9. 

6  Gardiner  v.  Davis,  2  C.  <fc  P.  49,  ABBOTT,  J.  Compare  Paddon  v.  Williams,  1 
Robt.  340,  s.  c.  2  Abb.  Pr.  N.  S.  38 ;  Howe  v.  Savory,  49  Barb.  403. 

1  Robinson  v.  Mollett,  L.  R.  7  H.  of  L.  802,  815.  s.  c.  14  Moak's  Eng.  177,  189. 

*  For  the  distinction  between  general  and  special  agency,  see  Butler  v.  Maples^ 
9  Wall.  766,  and  5  Abb.  N.  Y.  Dig.  new  ed.  243. 


THE  FACT  OF  SALE.  299 

of  the  agent's  authority  extended  to  such  a  transaction  as  that  in 
question ;  and  that  in  the  transaction  he  acted  as  agent  and  on 
account  of  the  defendant.1  In  the  absence  of  direct  evidence,  the 
existence  of  an  agency  may  be  inferred  by  the  jury,  from  the 
fact  that  the  supposed  agent  was  continuously  acting  in  the  ser- 
vice of  the  defendant  in  the  business  in  which  the  transaction 
was  had ; 2  and  the  scope  of  his  authority  may  be  inferred  from 
the  nature  of  his  usual  service.3  The  acts  and  declarations  of  the 
agent  cannot  alone  establish  the  fact  of  agency,  nor  the  scope  of 
his  authority;  but  there  must  either  be  independent  evidence 
on  those  points,  or  there  must  be  something  to  connect  defendant 
with  the  particular  act  or  declaration  relied  on,  so  as  to  render  it 
competent  against  him  without  first  assuming  the  existence  of 
the  relation  it  is  sought  to  prove.4 

Evidence  of  the  habit  and  course  of  dealing  is  competent  to 
bind  the  defendant,  by  showing  his  subsequent  ratification  of  the 
transaction,  whether  there  were  original  authority  or  not.5  The 
principle  is  recognized  that  where  an  act  is  done  by  one  person 
for  the  benefit  of  another,  though  without  authority,  the  latter 
may  be  presumed  in  furtherance  of  justice  to  have  ratified 
it,  and  may  take  the  benefit  of  it  as  against  third  persons.6  In 
cases  where  there  is  no  evidence  of  original  authority,  the  party 
relying  on  ratification  must  show  that  the  principal  after  having 
knowledge  of  all  the  material  facts,  expressly  or  tacitly  acqui- 
esced ; 7  but  intent  to  ratify  need  not  be  shown.8  Mere  silence, 
under  knowledge,  only  raises  a  presumption  of  ratification  9  after 
the  lapse  of  a  reasonable  time  for  dissenting.  Where  the  alleged 
agent  was  a  mere  stranger,  intermeddling,  the  silence  of  the  al- 
leged principal  does  not  raise  a  legal  presumption  of  ratification ; 
but  at  most  is  a  circumstance  for  the  jury.10  The  agency  having 
been  sufficiently  shown,  the  fact  that  the  transaction  was  done  by 
the  alleged  agent  for  and  on  account  of  the  defendant,  may  be 
shown  by  evidence  of  the  admissions,  declarations,  and  repre- 


I  See  Beals  v.  Merriam,  1 1  Mete.  470. 

8  Compare  Verona  Central  Cheese  Co.  v.  Murtagh,  60  X.  Y.  214,  rev*g  4  Lans 
17;  and  pp.  241,  276,  of  this  vol. 

3  See  Id. ;  and  Larter  v.  Am.  Female  Guard.  Soc.  1  Robt.  598.     Principal-*  hav- 
ing held  out  an  agent,  who  paid  for  purchases  in  checks  signed  as  ngent,  held  liable 
for  his  purchases  on  credit.     Morey  v.  Webb,  58  N.  Y.  350,  affi'g  65  B  irb.  "2'2. 

4  Howard  v.  Norton,  65  Barb.   161;  a.  p.  Stringham  v.  St.  Nicholas  Ins.  Co.  4 
Abb.  Ct.  App.  Dec.  322.     See  this  principle  more  fully  discussed  on  pp.  209,  218,  of 
this  vol. 

6  2  Greenl.  Ev.  13  ed.  51. 

II  Hampton  v.  Rouse,  22  \Vall.  274.     Factor  is  trustee  of  express  trust.     Ladd  Y. 
Arkel,  37  Supr.  Ct.  (5  J.  &  S.)  35. 

1  Id.  53;  Booth  v.  Bierce,  38  S.  Y.  463,  rev'g  40  Barb.  114. 

8  Hazard  v.  Spears,  2  Abb.  (.  t.  App.  Dec.  3")3. 

8  Whether  this  presumption,  in  the  case  of  agency,  is  one  of  law,  or  merely  of 
fact,  is  disputed,  see  27  Wis.  185,  and  cases  cited. 

10  P.  \V.  Ac.  R.  R.  Co.  v.  I'owell,  28  Penn.  St.  366,  whether  it  is  oven  that,  is 
questioned  by  Dixon  J.  in  27  Wis.  135- 


300  ACTIONS  FOR  PRICE  OF  GOODS,  Ac. 

sentations  made  by  the  agent  in  the  performance  of  the  transac- 
tion ; l  and  such  evidence  is  then  competent  for  any  other  pur- 
pose equally  as  would  be  the  declarations  of  the  principal  himself. 
Whether  there  is  sufficient  proof  of  an  agency  to  warrant  the 
admission  of  the  acts  and  declarations  of  the  agent  in  evidence 
against  the  principal,  is  a  preliminary  question  for  the  court  to 
determine.2  If  authority  from  defendant  to  pledge  his  credit  is 
shown,  it  is  not  necessary  to  show  that  he  had  a  beneficial  inter- 
est in  the  business.  On  a  sale  to  an  agent  of  a  known  principal,  the 
agent  being  insolvent,  and  doing  business  in  the  principal's  name 
by  the  latter3  s  permission,  the  presumption  is  that  the  seller  gives 
credit  to  the  principal,  not  to  the  agent.  One  who  permits  an- 
other to  use  his  name  thus  is  liable  for  the  debts,  although  he  has 
no  beneficial  interest  in  the  business.3 

If  it  be  shown  by  plaintiff  that  he  had  been  previously  in  the 
habit  of  dealing  with  the  principal  through  the  agent  in  ques- 
tion, and  defendant  i*elies  on  a  revocation  of  the  authority,  he 
must  show  actual  notice  of  the  termination  of  the  agency,  either 
directly  or  by  presumptive  evidence ;  or  circumstances  which 
constitute,  as  matter  01  law,  constructive  notice,  must  be  shown.4 

12.  Defendant  liable  as  undisclosed  principal.'] — Plaintiff 
need  not  show  that  he  knew  he  was  dealing  with  defendant.  Not 
only  where  he  knew  that  the  apparent  buyer  was  an  agent  for 
defendant,5  or  for  an  undisclosed  principal,6  but  equally  when  he 
supposed  the  one  with  whom  he  dealt  to  be  dealing  for  himself,7 
he  may,8  after  discovering  that  the  latter  was  merely  an  agent  for 
defendant,  elect  to  proceed  against  defendant,9  unless,  with  knowl- 
edge that  he  was  dealing  with  an  agent,  he  elected  to  give  credit 
to  him  personally  instead  of  relying  on  the  agency,1"  or  unless, 
after  acquiring  full  knowledge  as  to  the  true  principal  and  the 
power  of  electing,  he  has  clearly  and  unquestionably  elected  to 
treat  the  agent  as  alone  his  debtor.11  Suing  the  agent  to  judg- 
ment, under  such  circumstances,  is  conclusive  evidence  of  elec- 
tion.13 The  question  whether  he  originally  elected  to  give  credit 


1  Howard  v.  Norton,  65  Barb.  161. 

8  Cliquot's  Champagne,  3  Wall  114.     Compare  p.  191  of  this  vol.,  note. 

8  Fen-is  v.  Kilmer,  48  N.  Y.  300. 

4  Claflin  v.  Lenheim,  66  N.  Y.  301,  rev'g  5  Hun,  269. 

B  Hubbert  v.  Borden,  6  Whart(Penn.),  79,  91. 

8  Truman  v.  Loder,  11  Ad.  &  El.  589. 

'  Meeker  v.  Claghorn,  44  N.  Y.  349  ;  McMonnics  v.  Mackay,  39  Barb.  561. 

8  Within  a  reasonable  time.     Smethhurst  v.  Mitchell,  1  E.  <fc  E.  622. 

9  The  leading  case  is  Thompson  v.  Davenport,  9  B.  <fc  C.  78,  86. 

10  Addi<on  v.  Gandasequi,  4  Taunt.   574;  Patterson  v.  Gandasequi,  15   East,  62; 
Meeker  v.  Claghorn,  44  N.  Y.  349;  Rowan  v.  Buttman,  1  Daly,  412,  and  cases  cited; 
McMonnies  v.  Mackay,  39  Barb.  561;  Ranken  v.  Deforest,  18  Id.  143;  and  see  In- 
glehart  v.  Thousand  Isle  Hotel  Co.  7  Hun,  547.     The  fact  that  he  knew  he  was  deal- 
ing  with  an  agent  is  n"t  alone  enough,  see  53  N.  Y.  388,  :J94. 

11  Curtis  v.  Williamson,  10  Q.  B.  57,  8.  c.  11  Monk's  Eng.  149. 

12  Priestly  v.  Fernie.  3  H.  &  C.  977 ;    s.  p.  Morris  v.  Rexford,  18  N.  Y.  552 ;  Ro- 
dermund  v.  Clark,  46  Id.  354;  Gosa  v.  Mather,  2  Lans.  233;  46  N.  Y.  689.     But  the 


THE  FACT  OF  SALE.  301 

to  the  agent  is  one  of  intention,  usually  to  be  determined  by  the 
jury  as  a  question  of  fact.1  The  fact  that  the  contract  of  sale  was 
in  writing  (if  not  sealed2)  does  not  exclude  oral  evidence  that 
defendant  was  the  undisclosed  principal  of  the  apparent  buyer,5 
even  where  the  statute  of  frauds  requires  a  writing ; 4  and  such 
evidence  is  competent,  even  though  it  does  not  appear  in  the  body 
of  the  instrument  nor  in  the  signature  that  the  signer  acted  as 
agent.5  In  the  absence  of  such  evidence,  the  mere  fact  that  the 
apparent  buyer  was  an  agent  and  signed  with  the  addition  of 
agent,  is  not  enough.6 

In  these  cases,  however,  in  so  far  as  defendant  can  show  that  to 
compel  him  to  pay  would  change  the  state  of  the  accounts  be- 
tween him  and  his  agent  to  his  prejudice,  plaintiff  cannot  recover 
of  him.7 

13.  Defendant  liable  though  acting  as  agent.] — In  an  action 
on  a  contract  made  by  defendant  in  his  own  name,8  although  it 
appear  that  he  acted  as  agent,  plaintiff  may  recover  against  defend- 
ant as  a  principal,9  provided,  however,  that  if  it  appear  that  not 
only  the  fact  of  his  agency,  but  also  the  name  of  his  principal,10 
was  disclosed  at  the  time  of  making  the  contract,11  plaintiff  must 
show 12  that  he  gave  credit  exclusively  to  the  defendant,13  or  that 
defendant  had  not  at  the  time 14  the  authority  he  assumed  to  have,15 
or  that  he  has  received  from  the  principal  the  fund  to  be  re- 
covered.16 If  he  simply  disclosed  his  agency  without  naming  a 


mere  filing  an  affidavit  of  proof  against  the  agent's  estate  in  insolvency  is  not ; 
though  it  may  be  evidence  to  go  to  the  jury.  Curtis  v.  Williamson,  L.  R.  10  Q.  B. 
67,8.  c.  11  Moak's  Eng.  149. 

1  Green  v.  Hopke,  18  C.  B.  349,  and  cases  cited.  As  to  the  case  of  foreign  principal, 
see  the  opposing  rules  in  Kirkpatrick  v.  Stainer,  22  Wend.  244,  259 ;  llutton  v.  Bul- 
lock, L.  R.  8  Q.  B.  831  (s.  c.  6  Moak's  Eng.  89);  9  Id.  572  (s.  c.  10  Moak,  184); 
Armstrong  v.  Stokes,  7  Id.  598  (s.  c.  3  Moak,  217). 

*  Briggs  v.  Partridge,  64  N.  Y.  357,  affi'g  39  Sup.  Ct.  (J.  <fe  S.)  339. 

3  Higgins  v.  Senior,  8  Mees.  &  W.  834,  844 ;  s.  p.  Ford  v.  Williams,  21  How.  U.  S. ; 
Coleman  v.  First  Nat.  Bank  of  Elmira,  53  N.  Y.  388. 

4  Higgins  v.  Senior,  8  Mees.  &  W.  834,  844;  Dykers  v.  Townsend,  25  N.  Y.  57, 
Benj.  on  S.  §  218. 

6  Ford  v.  Williams  (above);  Lerned  v.  Johns,  9  Allen,  419;  Benj.  on  S.  §  219,  n. 
Contra,  Fenly  v.  Stewart,  5  Sandf.  101,  s.  c.  10  N.  Y.  Leg.  Obs.  40;  Auburn  City 
Bank  v.  Leonard,  40  Barb.  119  ;  Babbett  v.  Young,  51  Id.  466.' 

6  See  De  Witt  v.  Walton,  9  N.  Y.  571. 

1  See  Rowan  v.  Buttman,  1  Daly,  412 ;  Curtis  v.  Williamson,  L.  R.  10  Q.  B.  57, 
B.  c.  11  Moak's  Eng.  149. 

"  See  Hegeman  v.  Johnson,  35  Barb.  200. 

9  Unless  no  be  a  public  agent. 

10  Mills  V.  Hunt,  20  Wend.  431. 

11  McCoomb  v.  Wright,  4  Johns.  Ch.  659. 

12  Plumb  v.  Milk,  19  Barb.  74. 

13  See  Butler  v.  Evening  Mail  Ass.  61  N.  Y.  634;  Coleman  v.  First  Nat.  Bank,  53 
Id.  388,  and  cases  cited;  and  see  Hall  v.  Landerdale,  46  N.  Y.  70. 

14  Nason  v.  Cockroft,  3  Duer.  366  ;  s.  p.  Rossitor  v.  Rossitor,  8  Wend.  494 ;  Pal. 
mer  v.  Stephens,  1  Den.  471. 

15  Compare  Feeter  v.  Heath,  11  Wend.  477,  and  Sinclair  v.  Jackson,  8  Cow.  543. 
18  Compare,  on  this  question,  Morrison  v.  Currie,  4  Duer.  79,  and  Hall  v.  Lauder- 

dale,  46  N.  Y.  70. 


802  ACTIONS  FOR  TRICE  OF  GOODS,   <fcc. 

principal,  the  presumption  is,  in  flie  absence  of  other  evidence, 
that  credit  was  given  to  him,  not  to  the  principal.1  The  fact  that 
he  was  factor  for  disclosed  foreign  principals  does  not  raise  a  pre- 
sumption of  law  that  the  credit  was  given  exclusively  to  him- 
self ;8  but  the  question  whether  he  is  personally  liable  is  one  of 
intention,  to  be  gathered  from  surrounding  circumstances,  usages, 
etc.8  Parol  evidence  is  admissible  of  a  trade  usage  by  which,  if 
the  principal's  name  is  not  disclosed  within  a  reasonable  time, 
the  agents,  though  they  acted  avowedly  as  agents,  are  personally 
liable.4  In  the  absence  of  such  evidence  the  agent,  acting  openly 
for  a  known  foreign  principal,  is  presumed  not  personally  liable.5 

14.  Assumption  of  order  originally  given  ~by  a  third  person.'] 
— Plaintiff  may  recover  on  proof  of  an  order  originally  given  by 
a  third  person,  and  assumed  by  defendant ; 6  but  not  (without 
amendment)  on  mere  evidence  that  the  defendant  took  an  assign- 
ment of  the  subject  of  the  order  from  the  one  who  gave  it.7 

15.  Question  to  whom  credit  was   given. ,] — To  prove  that 
credit  was  given  to  one  or  another  of  several  persons,  the  books  of 
the  party  giving  the  credit  are  not  competent  evidence  in  his 
own  favor,  and  against  the  one  sought  to  be  charged,8  unless  upon 
some  ground  which  would  make  them  competent  generally, — as, 
for  instance,  where  they  are  admissible  as  shop  books,  or  as  entries 
made  in  the  course  of  duty,  or  against  interest  by  a  person  since 
deceased,  or  as  entries  attested  by  the  testimony  of  the  maker,  or 
as  a  contemporaneous  memorandum  by  the  witness  which  he  has 
used  to  refresh  memory,  or  as  part  of  the  res  gestce,  or  as  having 
been  communicated  to  the  party  against  whom  they  are  adduced.9 
The  books  of  the  party  giving  the  credit  are  competent  against 
him  to  show  that  he  gave  credit  to  another  than  defendant — as, 
for  instance,  that  he  charged  the   goods  to  the  alleged  agent 
through  whom  they  were  bought,10  or  to  a  third  person  to  whom 
they  were  delivered11 — and  are  strong  evidence  that  he  intended 
to  give  credit  to  the  one  he  charged ; 12  but  in  neither  case  are  they 
conclusive,13  but  may  be  rebutted  by  oral  or  other  evidence  ex- 


'  >  See  Chappell  v.  Dann,  21  Barb.  17. 

9  Kirkpatrick  v.  Stainer,  22  Wench  244,  259,  but  see,  contra,  Story  on  A<r.  §  268; 
Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  578,  s.  c.  3  Moak's  Eng.  217 ;  Hutton  v.  Bullock, 
L.  R.  8  Q.  B.  331 ;  9  Id.  572,  s.  c.  6  Moak's  Eng.  89;  10  Id  184;  see  also  Hochster 
V.  Baruch,  5  Daly,  440. 

3  Prof.  D wight's  note  to  Allen  v.  Schuchardt,  1  Am.  L.  Reg.  N.  S.  17. 

4  Hutchinson  v.  Tatham,  L.  R.  8  C.  P.  482,  s.  c.  6  Moak's  Eng.  230. 
4  Kirkpatrick  v.  Stainer  (above). 

6  Sloan  v.  Van  Wyck,  36  Barb.  335 ;  again,  47  Id.  634. 

7  Barber  v.  Lyon/22  Barb.  622. 

8  Somers  v.  Wright,  114  Mass.  171 ;  Field  v.  Thompson,  119  Id.  151. 
'  See  p.  53  of  this  voL  ;  and  later  paragraphs  of  this  chapter. 

10  See  Foster  v.  Persch,  68  N.  Y.  400. 

11  Swift  v.  Pierce,  13  Allen,  136  ;  Champion  v.  Doly,  31  Wis.  190. 

12  Rmrgles  v.  Gatton,  50  111.  412  ;  Swift  v.  Pierce  (above). 
(  »  Foster  v.  Persch,  68  N.  Y.  400,  and  cases  above  cited. 


THE  FACT  OF  SALE.  303 

plaining  the  charge.  It  is  not  necessary  for  the  plaintiff  in  such 
a  case,  in  order  to  rebut  the  presumption  arising  from  the 
charge,  to  show  that  it  was  caused  by  mistake  or  fraud ;  but  any 
explanation  consistent  with  the  intention  to  give  credit  only  to 
another,  may  be  shown.1 

If  it  be  uncertain,  on  the  evidence,  whether  the  sale  was  on 
the  credit  of  one  or  another,  the  plaintiff,  or  his  agent  who  made 
the  sale,  may  testify  directly  that  he  did  so  on  the  credit  of  de- 
fendant,2 and  that  he  intended  to  give  credit  to  him,  although  he 
charged  another  on  his  books ; 8  but  evidence  of  the  declarations 
of  the  plaintiff  made  to  the  third  person,  or  otherwise,  in  the 
absence  of  the  defendant,  and  not  part  of  the  res  gestce,  is  not 
competent  in  plaintiff's  favor.4 

Evidence  that  one  of  such  persons  had  no  property  and  was  en- 
tirely irresponsible  is  inadmissible,  for  it  is  too  remote  to  raise  a 
presumption  that  the  sale  was  not  to  him.5  But  the  fact  that  the 
insolvency  was  communicated  to  plaintiff,  and  treated  by  him  as 
a  reason  for  refusing  to  sell  to  the  third  person,  is  competent.6 

16.  Identifying  the  thing  agreed  for.] — In  application  of  the 
principles  before  stated 7  respecting  oral  evidence,  it  is  to  be  o\y 
served  that  if  a  written  contract  or  bill  of  sale  specifies  the  thing 
sold,  oral  evidence  is  not  competent  to  show  that  it  was  not  in- 
tended to  pass  all  that  was  specified,8  nor  to  show  that  the  writ- 
ing is  not  satisfied  by  delivery  of  the  particular  lot  specified ; 9 
but  it  is  competent  (unless  inadequate  by  the  statute  of  frauds) 
for  the  purpose  of  showing  that  additional  articles  were  included 
in  the  transaction,  though  not  specified  in  the  writing.10 

17.  Quality  and  description] — In  applying  the  same  prin- 
ciples to  proof  of  the  quality  or  description  of  the  goods,  it  is 
well  settled  that  extrinsic  evidence  is  competent  to  show  what 
was  understood  by  persons  engaged  in  the  trade,  by  words  u  or  ab- 


1  Champion  v.  Doly,  31  Wis.  190.  As,  for  instance,  lhat  it  was  so  made  at  defend- 
ant's request  (James  v.  Spaulding,  4  Gray.  451),  or  at  the  request  of  the  third  person 
(Burkhalter  v.  Farmer,  5  Kane.  477),  or  for  temporary  purpose,  plaintiff  not  being 
informed  as  to  the  standing  of  the  principal  (Maryland  Coal  Co.  v.  Edwards,  4  Hun, 
482),  or  inadvertently,  the  charge  being  posted  from  the  order  book.  Fiske  v.  Allen, 
40  Super.  Ct.  (J.  &  S.)  76. 

s  Lee  v.  "Wheeler,  11  Gray,  236. 

8  Folsom  v.  Sheffield,  63  Me.  171 ;  Burkhalter  v.  Farmer,  6  Kans.  477. 

4  Whitney  v.  Durkin.  48  Cal.  462 ;  s.  P.  Moore  v.  Meacham,  10  N.  Y.  207. 

8  Green  v.  Disbrow,  56  N.  Y.  334,  rev'g  7  Lans.  381.  (Contra,  Miller  v.  Brown. 
47  Mo.  504,  B.  c.  4  Am.  R.  345 ;  Moore  v.  Meacham,  above.)  So  also  of  evidence  that 
defendant,  a  father,  had  paid  the  son's  debts  to  other  tradesmen.  Ib. 

«  See  Bronner  v.  Frauenthal,  87  N.  Y.  166,  affi'g  9  Bosw.  350.  Compare  pp.  240 
and  265  of  this  yol. 

I  Paragraphs  8  and  9. 

8  Ridgeway  v.  Bowman,  7  Gush.  268 :  Benj.  on  S.  §  202. 
»  Vailv.  Rice,  5  N.  Y.  155. 

10  Nedridek  v.  Meyer,  46  Mo.  600 ;  s.  p.  Pierce  v.  Woodward,  6  Pick.  206.  Com- 
pare  Cram  v.  Union  Bank,  1  Abb.  Ct.  App.  Dec.  461,  affi'g  42  Barb.  426. 

II  Such  as  "gas  fixtures,"  Downs  v.  Sprague,  1  Abb.  Ct.  App.  Dec.  550;  or  the 
"product"  of  hogs,  Stewart  v.  Smith,  50  HL  897. 


804  ACTIONS  FOR  PRICE  OF  GOODS,  <ko. 

breviations  used ; l  and  for  this  purpose  extrinsic  evidence  is  com- 
petent to  show  what  varieties  or  grades  are  included  in  the  mean- 
ing of  the  generic  term  used  ;2  what  manufacture  is  designated  by 
a  particular  brand  ; 8  that  an  article  designated  as  of  a  particular 
material — such  as  mahogany  furniture  or  horn  chains, — was  by 
usage  of  trade  so-called,  though  only  partly  of  the  material  indi- 
cated, and  that  the  parties  intended  such  article ;  that  the  usage 
of  measurement  of  the  size  of  the  articles  was  peculiar,  as  that 
in  selling  trees  as  of  a  certain  height  it  was  customary  not  to  in- 
clude the  green  top;5  or  that  the  qualifying  words  "with  all 
faults"  mean  all  that  are  not  inconsistent  with  the  identity  of 
the  goods  ; 6  and  the  like. 

The  fact  that  the  articles  delivered  were  such  as  to  satisfy  the 
contract  may  be  proved  by  testimony  to  their  quality,  or  by  opin- 
ions of  qualified  witnesses  that  they  corresponded  with  that 
which  the  contract  calls  for.  If  they  are  shown  not  to  have  cor- 
responded, and  to  have  been  rejected  on  that  account,  evidence  of 
a  usage  to  make  alterations  afterward  is  not  competent.7 

18.  Quantity.']  —  In  application  of  the  principles  already 
stated,8  as  to .  oral  evidence  explanatory  of  sales,  it  is  held  that 
parol  evidence  is  admissible  to  show  that  by  the  word  "  barrels," 
used  in  a  written  contract,  was  intended  vessels  of  a  certain  kind 
and  capacity,  and  not  a  measure  of  quantity,  and  that  the  parties 
contracting  had  reference  not  to  a  statute  barrel,  but  to  certain 
vessels  of  uniform  size  of  different  capacity  from  the  statute  bar- 
rel.9 So  extrinsic  evidence  of  defendant's  usage  to  sell  2,240  Ibs. 
to  the  ton,  instead  of  the  statute  number  of  2,000  Ibs.,  and  that 
the  contract  was  made  in  reference  to  his  usage,  is  competent.10 
So  under  a  contract  for  shingles  by  the  "  thousand,"  it  may  be 
shown  that,  by  usage  of  the  trade,  two  bundles  of  a  certain  size 
are  sold  as  a  thousand  without  regard  to  actual  count.11  So  where 

I  Dana  v.  Fiedler,  12  N.  Y.  40,  affi'g  1  E.  D.  Smith,  463. 

s  As,  for  instance,  whether  "  good  merchantable  hay "  includes  clover,  Fitch  v. 
Carpenter,  40  Barb.  40;  or  what  is  intended  by  "good  custom  cowhide  boots," 
Wait  v.  Fairbanks.  Brayt.  Vt.  77,  139 ;  or  whether  "  winter  strained  lamp  oil "  means 
sperm  oil  only,  or  whale  oil  as  well,  Hart  v.  Hammett,  18  Vt.  127;  Benj.  on  S.  §  213, 
n.  In  order  to  prove  what  article  was  intended  in  a  contract,  by  a  name  used  in 
commerce,  it  is  proper  to  ask  a  witness,  who  is  an  expert,  "  how  the  article  is  gener- 
ally known  in  the  market,  and  how  spoken  of  generally."  Pollen  v.  Le  Roy,  10  Bosw. 
88,  affi'd  in  80  N.  Y.  549. 

3  Pollen  v.  Le  Roy,  30  N.  Y.  649,  affi'g  10  Bosw.  88.     But  not  of  a  usa^e  to  ac- 
cept an  equal  or  better  brand  in  lieu  of  that  agreed  for.    Beals  v.  Terry,  2  Sandf.  127. 

4  Sweat  v.  Shumway,  102  Mass.  365,  s.  c.  8  Am.  R.  471. 
B  Barton  v.  McKelway,  22  N.  J.  165. 

6  Whitney  v.  Boardman,  118  Mass.  242;  Benj.  on  S.  §  213. 
1  Brown  v.  Foster,  113  Mass.  136  ;  Benj.  on-  S.  §  215. 

8  Paragraphs  8  and  9. 

9  Miller  v.  Stevens,  100  Mass.  518,  s.  c.  1  Am.  R.  189,  an'd  cases  cited;  Benj.  on  S. 
§  213,  n.     Evidence  of  a  usage  in  the  trade,  in  sales  by  quantity,  to  estimate  by  meas- 
use  of  one  barrel  in  every  ten,  taken  promiscuously,  is  competent  in  an  action  betweou 
members  of  the  trade.     Dalton  v.  Daniels,  2  Hilt.  472. 

10  Many  v.  Beekman  Iron  Co.  9  Paige,  188.   Compare  Hall  v.  Reed,  1  Barb.  ch.  800. 

II  Soutier  v.  Kellerman,  18  Mo.  (3  Bennett),  509,  s.p.  1  Greenl.  Ev.  §  281. 


THE  FACT  OF  SALE.  305 

the  contract  is  for  a  "  cargo,"  1  or  a  person's  "  crop," 2  or  for  a 
"  season,"  3  those  words  may  be  explained  by  parol.  But  if  the 
•writing,  properly  understood,  calls  for  a  certain  quantity,  evidence 
of  a  reservation  of  a  part  by  parol,  is  inadmissible.4 

If  the  contract  is  for  a  specific  parcel  or  lot  described  as  being 
of  a  certain  quantity,  "  more  or  less,"  evidence  of  a  usage  that 
"more  or  less"  is  limited  to  a  certain  percentage,  is  not  admis- 
sible ; 5  nor  is  evidence  that  the  parties'  understanding  was  that 
the  buyer  was  to  have  more  or  less  as  might  be  found  necessary 
to  make  up  a  cargo,  although  it  appeared  that  both  parties  knew 
that  the  goods  were  brought  for  that  purpose,  and  that  the 
amount  to  be  required  was  uncertain.6  If  the  contract  calls  for 
a  specified  quantity  merely,  "  more  or  less  "  according  to  the  dis- 
cretion of  a  designated  agent,  the  fair'  discretion  of  the  agent  is 
conclusive.7  A  bill-head  notice  restricting  claims  for  deficiencies 
is  not  relevant,  if  the  contract  was  complete  and  binding  before 
the  delivery  of  the  bill.8 

A  variance  between  pleading  and  proof,  as  to  the  quantity,  if 
it  does  not  mislead,  may  be  disregarded.9 

19.  Price  agreed.] — Abbreviations10  and  ambiguous  expres- 
sions u  as  to  price,  in  a  written  contract,  may  be  explained  by  parol. 
So  where  the  agreement  is  for  a  certain  advance  on  "  cost,"  extrin- 
sic evidence  is  competent  to  show  the  intent  of  the  parties  in  the 
use  of  such  a  term."  A  contract  which  was  void  by  the  statute  of 
frauds,  is  good  as  a  proposition  of  price,  and  governs,  if  the 
goods  were  subsequently  delivered  and  accepted  pursuant  to  it.13 
Where  the  testimony  is  conflicting  as  to  what  was  the  price 
agreed  upon  w  in  an  oral  sale,  or  as  whether  there  was  any  agree- 
ment as  to  price,15  it  is  competent  to  show  the  value  of  the  prop- 


I  Clark  v.  Baker,  11  Mete.  186;  Hay  v.  Leigh,  48  Barb.  393;  Rhoades  v.  Castner, 
12  Allen,  130;  Benj.  on  S.  §  215. 

II  Goodrich  v.  Stevens,  5  Lans.  230.     Compare  McDonald  v.  Longbottom,  1  E.  <fe 
E.  297,  987,  s.  c.  28  L.  J.  Q.  B.  293 ;  29  Id.  256. 

3  Myers  v.  Walker,  24  III.  133. 

4  Austin  v.  Sawyer,  9  Cow.  39. 

•  Vail  v.  Rice,  5  N.  Y.  155.     Compare  Sewall  v.  Gibbs,  1  Hall,  602;  Bacon  v.  Gil- 
man,  4  Lans.  456,  s.  o.  60  Barb.  640. 

'  Cabot  v.  Winsor,  1  Allen  (Mass.),  546  ;  1  Pars.  548. 
T  Brawley  v.  United  States,  96  U.  S.  (6  Otto),  168. 

8  Allen  v.  Schuchardt,  1  Am  L.  Reg.  N.  S.  13,  affi'd  in  1  Wall.  369. 

9  Potter  v.  Hopkins,  25  Wend.  417. 

10  Taylor  v.  Beavers,  4  E.  D.  Smith,  215 ;  Dana  T.  Fiedler,  12  N.  T.  40;  Benj.  on 
S.  §  213,  n. 

11  Cole  v.  Wendel,  8  Johns.  116. 

"  Gray  v.  Harper,  1  Story,  574,  STORY,  J. ;  Benj.  §  213,  n. ;  Herst  v.  De  Comeau, 
1  Sweeney,  690 ;  and  see  Buck  v.  Burk,  18  N.  Y.  337. 

13  Sprague  v.  Blake,  20  Wend.  61.    But  compare  Erben  v.  Lorillard,  19  N.  Y. 
299,  rev'g  23  Barb.  82. 

14  Moore  v.  Davis,  49  N.  H.  46,  8.  o.  6  Am.  R.  460,  and  cases  cited. 

15  Brown  v.  Cahalin,  3  Oreg.  46.     On  the  question  whether  an  auction  sale  at  it 
certain  figure  was  for  cents  or  dollars,  bystanders  who  were  present  as  bidders  may 
testify  to  their  understanding  of  the  bids.    Ives  y.  Tregent,  14  Bankr.  Reg.  60. 

20 


306  ACTIONS  FOR  PRICE  OF  GOODS,   Ao. 

erty  at  the  time  of  sale  as  tendirg  to  show  what  the  real  contract 
was.  Under  an  allegation  of  a  sale  of  goods  worth  a  specified 
sum,  plaintiff  may  prove  that  sum  to  have  been  agreed  on  as  the 
price.  At  common  law  it  was  the  better  opinion  that,  under 
an  allegation  of  goods  sold  for  money,  plaintiff  might  prove  a 
sale  for  anything  agreed  to  be  treated  as  cash,  or  a  sale  to  be  paid 
for  in  services  or  goods,  the  burden  being  on  plaintiff,  however, 
to  show  that  the  buyer  was  in  default  in  the  special  agreement.1 
Under  the  new  procedure  such  a  variance  is  to  be  disregarded, 
unless  it  has  misled  defendant  to  his  prejudice.  If  the  considera- 
tion was  an  evidence  of  debt  or  a  conveyance,  the  contents  of  it 
may  be  stated  for  the  purpose  of  proving  that  fact,  without  pro- 
ducing the  instrument.2 

The  fact  that  defendant  admitted  being  indebted,  when  pay- 
ment was  demanded,  is  not  sufficient  evidence  of  the  amount  of 
price,  unless  there  is  in  the  admission,  or  connected  with  it,  some- 
thing to  indicate  the  amount,  or  data  from  which  it  may  be  com- 
puted.3 So,  although  delivery  of  a  bill  of  the  goods,  and  the  mak- 
ing of  a  payment  on  account  without  objection,  gives  it  the  legal 
effect  of  an  account  stated ;  it  is  otherwise  if  there  be  evidence, 
that  when  the  defendant  made  the  payment  he  objected  to  the 
bill/ 

20.  Value. — Under  an  allegation  of  an  agreed  price,  if  there 
is  a  failure  to  prove  the  agreement  as  to  price,  evidence  of 
value  is  competent  for  the  purpose  of  a  recovery  of  what  the 
article  was  fairly  worth,5  but  not  to  sustain  a  recovery  beyond  the 
amount  alleged.6  And  even  in  those  jurisdictions  where  this  is 
regarded  as  a  variance,  evidence  of  value  is  relevant  on  the  ques- 
tion of  agreement,  if  the  evidence  of  agreement  is  conflicting. 
And  under  a  complaint  seeking  to  recover  what  the  thing  was 
justly  worth,  evidence  of  an  agreed  price  is  admissible ; 7  and  the 
agreement  for  price  controls,8  if  within  the  limit  marked  by  the 
allegation  of  value  and  demand  of  judgment.  If  the  contract  or 
order  proved  was  silent  as  to  the  price,9  or  if  there  was  no  assent 
as  to  price,10  the  law  implies  a  promise  to  pay  at  the  current 
market  rates,  or  the  fair  value.  Where  the  party's  shop  books 
are  competent  in  his  own  favor,11  the  price,  if  stated  in  the  entry, 
is  prirna  facie  evidence  in  his  favor,  of  the  value  also.12 


1  COWEN.  J.,  Clark  v.  Fairchild,  22  Wend.  683. 

•  Reynolds  v.  Kelly.  1  Daly,  283. 

•  Douglas  v.  Davie,  2  McCord  (So.  C.),  218  ;  Hanson  v.  McKenney,  2  Bay,  412. 
4  Jacques  v.  Elmore,  7  Hun,  675. 

«  Bussdorf  v.  Schmidt,  55  N.  Y.  319. 

6  See  Trimble  v.  Stilwell,  4  E.  D.  Smith,  612. 

T  Fells  v.  Vestvali,  2  Keyes,  152. 

•  See  Ludlow  v.  Dole,  62  N.  Y.  617,  affi'g  1  Hun,  71,  4  Supra.  Ct.  (T.  A  C.)  666. 

•  Konitzky  v.  Meyer,  49  N.  Y.  671. 

10  Booth  v.  Bierce,  38  N.  Y.  463,  rev'g  40  Barb.  114. 

11  See  paragraph  39. 

"  The  Potomac,  2  Black,  681 ;  1  GreenL  Ev.  §  118,  p.  160,  n. 


THE  FACT  OF  SALE.  307 

The  value  of  merchandise  which  has  no  regular  market  value, 
and  the  price  of  which  must  depend  on  circumstances  peculiar  to 
the  single  transaction,  and  the  purchasers,1  is  to  be  ascertained 
by  the  probabilities  of  the  case,  founded  on  proof  of  facts  which 
in  the  ordinary  transaction  of  business  would  affect  the  mind  of 
a  dealer  in  similar  articles  in  determining  a  price  to  be  asked  or 
given.2  In  doubtful  cases  and  in  the  absence  of  better  evidence, 
the  actual  cost  of  the  thing  to  the  seller  is  relevant  to  the  ques- 
tion of  its  value,  at  least  as  evidence  against  him  as  in  the  nature 
of  an  admission  of  value,  especially  if  the  thing  have  no  regular 
market  value.3  So  the  price  named,  by  an  agent  for  selling, 
when  offering  goods,  is  competent  evidence  of  value  as  against 
his  principal.4  But  as  against  evidence  of  an  agreed  price,  a 
mere  admission  of  less  value  cannot  avail.5 

Comparison  of  values  between  the  thing  in  question  and 
others  of  different  quality  which  are  not  involved  in  the  litiga- 
tion is  not  allowable  for  the  purpose  of  calculating  the  value  of 
the  one  in  question.6  A  witness  cannot  testify  that  a  different 
article  was  worth  a  specified  sum,  and  that  the  one  in  question 
was  superior  or  inferior.  And  upon  the  same  principle  it  is  not 
allowable  to  arrive  at  the  value  by  testimony  that  the  thing  in 
question,  with  certain  alterations  or  differences,  would  be  worth 
a  specified  sum,  thereupon  making  allowance  for  the  difference ; 
nor  that  it  was  worth  a  different  sum  at  another  date,  thereupon 
making  allowance  for  the  lapse  of  time.7 

The  three  chief  elements  in  the  proof  of  value  are,  the  in- 
trinsic qualities  of  the  particular  thing  sold  ;  its  usual  price,  or, 
if  there  be  none,  a  valuation  of  it ;  and  the  qualifications  of  the 
witness  called  to  testify  to  either  of  these  points.  The  intrinsic 
qualities,  and  the  usual  price  or  proper  valuation  of  a  thing  of 
such  qualities,  may  be  proved  by  the  same  or  by  different  wit- 
nesses. 

21.  Market  value. — The  question  of  market  value  is  more 
frequently  contested  in  cases  of  actions  for  breach  of  executory 


1  Aa  in  the  case  of  military  accouterments  usually  bought  only  by  government. 
As  to  "  fancy  prices,"  in  case  of  animal  pets  and  the  like,  see  3  Abb.  N.  Y.  Dig.  New 
ed.  81 ;  Bennett  v.  Drew,  S  Bosw.  355. 

8  Sturm  v.  Williams,  38  Super.  Ct.  (J.  <fe  S.)  S23,  843.  So  held  on  a  question  of 
overvaluation  in  insuring. 

3  Id. ;  and  see  Smith  v.  Griffith,  3  Hill,  333,  342  ;  8.  P.  Wells  v.  Kelsey,  37  N.  Y. 
143,  s.  o.  4  Abb.  Pr.  N.  S.  234,  rev'g  38  Barb.  242. 

4  Cliquot's  Champagne,  3  Wall.  140,  148;  Banks  v.  Gidrot,  19  Geo.  421.     * 

8  Davis  v.  Shields,  24  Wend.  322,  rev'd  on  another  point  in  26  Id.  341 ;  Have- 
meyer  v.  Cunningham,  35  Barb.  615,  s.  c.  22  How.  Pr.  87. 

6  See  Gouge  v.  Roberts,  63  N.  Y.  619,  s.  p.  Blanchard  v.  N.  J.  Steamboat  Co.  69 
N.  Y.  300,  affi'g  3  Supm.  Ct.  (T.  <fc  C.)  771 ;  Color  Printing  Attacht.  Co.  v.  Brown, 
37  Super.  Ct.  (J.  <fe  S.)  433. 

*  This  is  one  of  the  cases  where,  in  the  present  state  of  our  law,  the  processes  by 
which  witnesses  arrive  at  their  opinions  are  not  allowed  to  be  given  to  the  jury,  on 
direct  examination.  The  case  of  comparison  of  handwriting  is  another.  How  far  it 
is  allowable  on  cross-examination  is  not  well  settled. 


308  ACTIONS  FOR  PRICE  OF  GOODS,  Ac. 

contracts  or  of  warranties,  but  the  rules  for  proving  it  may  be 
most  conveniently  stated  here,  in  connection  with  the  general 
question  of  proof  of  value. 

To  constitute  a  market  value,  it  must  appear  that  similar 
articles  have  been  bought  and  sold  in  the  way  of  trade,  in  suffi- 
cient quantity  or  frequency.1  If  the  contract  or  conduct  of  the 
parties  fixed  a  day,  so  that  the  right  of  recovery,  strictly  consid- 
ered, turns  on  the  then  market  value,  the  evidence  should  be 
directed  to  the  market  value  on  that  precise  day,2  and  not  extend 
to  the  ordinary  market  value  at  other  times.8  But  if  there  were 
no  sales  then,4  or  if  the  sales  had  are  shown  to  have  been  at 
fictitious  prices,  or  at  prices  unnaturally  inflated  or  depressed  by 
artificial  combination  for  the  purpose  of  fixing  a  false  price,6  evi- 
dence of  prices  before  and  after  the  day  within  a  reasonable  limit 
resting  in  judicial  discretion,6  is  competent  for  the  purpose  of 
inferring  the  value  on  the  precise  day ;  and  it  is  no  objection  to 
the  application  of  this  principle  that  it  admits  evidence  of  sales 
in  the  market  made  after  suit  brought.7  The  proper  limit  of 
time  is  to  be  determined  by  the  principle  of  requiring  the  best 
evidence  the  circumstances  permit.  In  case  of  commercial  mer- 
chandise having  constant  market,  the  limit  is  shorter  than  in  the 
case  of  less  salable  goods.8  This  excluding  rule  is  not  so  strictly 
applied  in  Actions  for  price  of  goods  sold  and  delivered  at  succes- 
sive dates,  where  it  does  not  appear  that  the  market  price  varied 
during  the  general  period  of  the  witness'  conversance  with  it.9 

If  the  contract  or  the  conduct  of  the  parties  fixed  a  place,10  by 
the  market  rates  of  which  the  value  is  to  be  ascertained,  the  evi- 
dence should  be  confined  to  the  market  value  at  that  place,  and 
not  extend  to  the  value  in  other  markets.11  But  if  there  were  no 
sales  there,  evidence  of  the  price  at  places  not  distant,  or  in  other 


I  Harris  v.  Panama  R.  R.  Co.  58  N.  Y.  660.     So  held  in  an  action  against   a 
carrier.  > 

*  Dana  v.  Fiedler,  12  K  T.  40,  affi'g  1  E.  D.  Smith,  463. 

3  Cahen  v.  Platt,  69  N.  Y.  348,  352 ;  Belden  v.  Nicolay,  4  E.  D.  Smith,  14. 

4  Dana  v.  Fiedler,  and  Cahen  v.  Platt  (above). 

6  Kountz  v.  Kirkpatrick,  72  Penn.  St.  376,  s.  c.  13  Am.  R.  687.  Bnt  the  probable 
effect  on  prices,  of  throwing  on  the  market  so  large  a  quantity  as  that  contracted  for, 
is  not  relevant.  Dana  v.  Fiedler  (above). 

6  Dana  v.  Fiedler  (above). 

1  But  the  motives  and  interest  of  the  parties,  and  other  circumstances  of  the  sale, 
may  of  course  be  inquired  into  and  considered  by  the  jury  in  determining  the 
weight  to  be  given  to  such  evidence.  Kingsbury  v.  Moses,  45  Jf.  H.  222. 

b  Thus  where  sales  of  such  merchandise  within  two  or  three  weeks  of  the  precise 
day  are  shown  to  have  been  had,  the  market  price  running  through  two  or  three 
months  should  not  be  admitted.  Dana  v.  Fiedler  (above).  On  the  other  hand,  in 
the  case  of  second-hand  household  goods,  the  price  they  brought  at  auction  within 
three  months  is  relevant.  Crounse  v.  Fitch,  1  Abb.  Ct.  App.  Dec.  475.  But  if  any- 
thing occurred  in  the  interim  materially  affecting  the  value,  it  is  competent  for  the 
adverse  party  to  show  it.  Id. 

9  Kerr  v.  McGuire,  28  N.  Y.  446,  8.  o.  28  How.  Pr.  27. 

10  See  Cahen  v.  Platt,  69  N.  Y.  348. 

II  Id.,  and  cases  cited.    Except  when  proper  as  corroborative.    Gordon  v.  Bowers, 
16  Penn.  St.  226. 


THE  FACT  OF  SALE.  309 

controlling  markets  may  be  given,  not  for  the  purpose  of  estab- 
lishing the  market  price  of  such  other  place,  but  for  the  purpose 
of  showing  indirectly,  in  the  absence  of  direct  evidence,  the 
market  price  at  the  place  of  delivery ; l  and  hence,  in  connection 
with  market  value  at  other  places,  evidence  of  the  expense  of 
transportation  between  such  places  is  relevant.2  Upon  the  same 
principle,  if  the  plaintiff's  proof  of  market  value  at  the  precise 
place  is  uncertain,  evidence  of  the  market  value  in  an  adjoining 
town  easily  and  speedily  reached,  is  competent.8 

The  market  value  at  a  given  time  and  place  may  be  proved 
by  evidence  of  actual  sales  then  and  there  of  merchandise  of  the 
same  quality;4  and  a  single  sale5  is  relevant  and  admissible  in 
the  absence  of  better  evidence,  but  not  always  alone  sufficient  to 
establish  the  market  value.6  For  the  purpose  of  proving  the 
rates  of  a  foreign  market,  statements  and  declarations  of  strangers 
to  the  action,  engaged  in  that  market,  and  made  in  the  ordinary 
course  of  their  business — for  example,  merchants'  letters  offer- 
ing their  goods  at  a  price — are  competent  evidence  of  the  market 
value  at  the  time  the  declaration  was  made,  without  proof  of  the 
death  of  the  declarant.7 

22.  Prices  current.'] — The  price  list  or  price  current  issued  by 
a  merchant  or  his  agent  in  the  ordinary  course  of  business,8  or 
corrected  by  him  for  a  newspaper,9  is  competent  evidence  of 
market  value  as  against  himself.  In  the  absence  of  better  avail- 
able evidence,  regular  prices  current  or  market  reports,  published 
in  course,  in  a  commercial  journal  pursuant  to  the  professional 
duty  of  the  journalist  to  ascertain  constantly  from  those  engaged 
in  the  market  the  actual  current  rates,  and  tabulate  and  publish 
them  for  the  information  and  guidance  of  the  commercial  world, 
are  competent prima  facie  evidence  of  the  contemporaneous  mar- 
ket price,  on  production  of  the  newspaper  or  file,  preliminary 
proof  of  these  conditions,  and  of  the  identity  of  the  paper,  being 
given.10  Without  some  extrinsic  evidence  of  the  sources  of  the 
information,  or  the  mode  in  which  the  prices  current  were  made 
up,  the  publication  is  incompetent.11 


1  Id.,  and  cases  cited ;  Harris  v.  Panama  R.  R.  Co.  58  N.  Y.  660. 

2  Wemple  v.  Stewart,  22  Barb.  154,  and  cases  cited. 

3  Siegbert  v.  Stiles,  39  Wis.  533. 

4  See  Lawton  v.  Chase,  108  Mass.  238.     Compare  Roe  v.  Hanson,  8  Lans.  304. 
Gill  v.  McNamee,  42  N.  Y.  45  ;  Dixon  v.  Buck,  4  Barb.  TO. 

*  See  Crounse  v.  Fitch,  1  Abb.  Ct.  App.  Dec.  475. 

6  Graham  v.  Maitland,  6  Abb.  Pr.  N.  S.  327,  s.  c.  37  How.  Pr.  307;  1  Sweeny,  149. 

7  Fennerstein's  Champagne,  3  Wall.  149;  1  Greenl.  Ev.  §  120. 

8  Cliquot's  Champagne,  8  Wall.  140. 

•  Henkle  v.  Smith,  21  111.  238. 

10  Whelan  v.  Lynch,  60  N.  Y.  469,  474;    1  Whart.  Ev.  638,  §  674.     So  on  the 
question  of  what  was  the  market  value,  in  France,  of  the  champa<jne  of  a  particular 
maker,  the  price  current  of  another  maker,  prepared  and  furnished  there  in  the  usual 
course  of  business,  is  relevant,  and  its  effect,  in  connection  with  other  evidence  of 
value,  is  a  question  for  the  jury.     Cliquot's  Champagne,  3  WalL  114. 

11  Wheian  v.  Lynch  (above). 


310  ACTIONS  FOR  PRICE  OF  GOODS,  <fco. 

A  witness  cannot  testify  to  value  or  market  price  whose 
knowledge  is  derived  merely  from  examining  newspaper  prices 
current.1  But  if  the  witness  has  a  knowledge  of  the  value  from 
other  proper  sources,  it  is  no  objection  to  his  testimony  that  it  is 
based  in  part  upon  such  prices  current,2  or  even  upon  letters  and 
invoices  received  by  him  in  the  usual  course  of  his  business.3 

23.  Opinions  of  witnesses  as  to  quality  and  value.] — Ques- 
tions of  value  are  subject  to  the  general  rule  that  in  matters  re- 
quiring special  experience  or  knowledge,4  not  presumably  pos- 
sessed by  all  the  jurors,  a  witness  shown  to  be  peculiarly  qualified 
by  such  experience  or  knowledge  may  testify  to  his  opinion 5  on 
a  question  of  fact ;  and  a  witness  who  has  such  experience  or  knowl- 
edge with  reference  to  the  value  of  things  of  the  kind  of  that  in 
question6 — such  as  a  dealer,7  salesman,8  or  book-keeper9  in  the 
trade — may  express  his  opinion  of  values  of  things  of  the  same 
class  as  that  in  question,  even  though  he  has  not  seen  the  partic- 
ular thing  itself.  But  a  witness  having  only  the  ordinary  expe- 
rience of  life,  and  none  in  the  business  in  which  the  articles  are 
dealt  in,10  or  made  or  used,11  and  not  having  bought  or  sold,  and 
having  no  special  means  of  information  as  to  market  rates,12  is  not 
qualified.  The  mere  fact  that  he  has  once  bought  or  sold  the 
very  article  in  question  does  not  necessarily  qualify  him  to  ex- 
press an  opinion  on  its  value ;  although  the  price  he  paid  or  re- 
ceived may  be  competent  evidence.13 


*  Harris  v.  Ely,  Seld.  Notes,  No.  1,  35,  s.  c.  1  Liv.  Law  Mag.  145. 

9  Whitney  v.  Thacher,  117  Mass.  527.     Compare  Sisson  v.  Cleveland  <fe  Toledo  R. 
.  R.  Co.  14  Mich.  489;  Cleveland  &  Toledo  R.  R.  Co.  v.  Perkins,  17  Id.   296  ;  Laurent 
v.  Vaughan,  30  Vt.  90. 

3  Alfonso  v.  United  States,  2  Story,  421. 

4  For  instance,  an  ordinary  witness  may  testify  to  the  fact  that  plants  were  dead ; 
an  expert,  to  his  opinion  as  to  what  killed  them.     Stone  v.  Frost,  6  Lans.  440. 

6  It  is  no  objection  to  receiving  the  opinion,  that  the  witness  is  a  party  testifying 
in  his  own  behalf.    Dickenson  v.  Fitchburgh,  13  Gray,  546,  555. 
8  Clark  v.  Baird,  9  N.  Y.  183,  196. 

*  Bush  v.  Westchester  Fire  Ins.  Co.  2  Supm.  Ct.  (T.  <fe  C.)  629. 
8  Id. 

*  Kerr  v.  McGuire,  28  N.  Y.  446,  s.  c.  28  How.  Pr.  27. 

10  Teerpenning  v.  Corn  Exch.  Ins.  Co.  43  N.  Y.  279 ;  Bush  v.  Westchester  Fire 
Ins.  Co.  (above). 

11  Winter  v.  Burt,  31  Ala.  33. 

12  See  Whelan  v.  Lynch,  60  N.  Y.  469. 

13  Compare  Chambovet  v.  Cagney,  35  Super.  Ct.  (J.  &  S.)  474,  489  ;  Smith  v.  Hill, 
22  Barb.  656 ;  Watson  v.  Bauer,  4  Abb.  Pr.  N.  S.  273.    There  is  much  difference  of 
opinion  and  practice  in  reference  to  the  degree  of  knowledge  or  experience  which 
will  qualify  the  witness.     Some  anomalous  rulings  are  seen  to  be  ill-considered  when 
it  is  remembered,  that  if  the  question  is  not  on  the  quality  of  the  article,  but  on  the 
value  of  articles  of  a  given  quality,  conversance  with  the  market  rates  is  the  qualifi- 
cation ;  if  there  is  no  regular  market  value,  conversance  with  other  things  of  the  kind, 
and  their  uses,  fitness,  or  cost,  is  the  qualification ;  while,  on  the  other  hand,  if  the 
jury  may  be  supposed  conversant  with  the  kind  of  article  and  its  ordinary  values,  the 
object  of  inquiry,  though  in  form  a  question  as  to  value,  may  be  re-ally  as  to  the  grade 
or  condition  of  the  particular  thing  at  the  time  of  sale.     In,  this  class1  of  cases  a  wit- 
ness, who  has  in  common  with  the  jury  only  an  ordinary  knowledge  of  values,  may 
by  reason  of  his  inspection  of  a  particular  thing  which  ordinary  knowledge  enables 


THE  FACT  OF  SALE.  311 

To  testify  to  the  quality  of  a  particular  thing  it  is  presump- 
tively enough  that  the  witness  has  long  been  a  maker  of  or  dealer 
in  such  articles,  or  otherwise  so  engaged  as  to  be  practically  fa- 
miliar with  the  qualities  involved  in  the  inquiry,1  even  though  he 
does  not  know  the  market  prices ; 2  but  he  must  have  seen  the 
thing  within  a  reasonable  time  of  the  date  to  which  evidence  of 
value  is  to  be  addressed,  a  limit  varying  in  the  judicial  discretion 
of  the  court,  according  to  the  permanent  or  perishable  character 
of  the  thing ; 3  and  in  case  of  a  varied  lot  of  merchandise,  the  wit- 
ness must  have  made  a  sufficient  examination  in  detail  to  speak 
specifically  of  the  various  parcels  or  grades.* 

After  the  qualities  or  grade  on  which  value  depends  have 
been  proven,  a  witness  qualified  by  special  experience  er  knowl- 
edge to  testify  to  the  intrinsic  value  of  the  particular  article,5  or 
to  the  market  price  of  such  articles,  (as  the  case  may  require),  may 
testify  to  its  value,  although  he  has  not  seen  the  article.6  Such 
testimony  may  be  founded  on  the  witness  having  heard  or  read 
all  the  testimony  which  has  been  given  by  the  party  on  the  facts 
of  quality,  grade,  etc.,  on  which  value  or  price  depends ;  in  which 
case  the  question  may  be :  "  Assuming  that  the  goods  were  as 
described  by  plaintiff  [or  other  testimony  heard  or  read  by  the 
witness],  what  were  they  worth  ? " 7  Or  it  may  be  called  forth  by 
an  hypothetical  question,  embracing  all  the  same  facts  which  may 
fairly  be  assumed  to  be  sufficiently  in  evidence.8 

A  witness  to  market  values  must  be  shown  to  be  conversant 
with  prices  at  the  market  in  question,9  but  he  need  not  be  a  resi- 
dent there.10  His  testimony  is  not  necessarily  made  incompetent 
by  the  fact  that  his  knowledge  of  sales  and  prices  was  derived 
from  inquiry  in  the  trade,11  or  by  examinatation  of  invoices  and  ac- 


one  to  value,  be  competent  to  express  his  opinion  of  its  value  as  the  direct  and  natu- 
ral way  of  describing  his  judgment  of  its  grade  and  condition.  In  this  point  of  view 
Smith  v.  Hill  and  Watson  v.  Bauer  are  sounder  guides  than  Chambovet  v.  Cagney 
(all  above  cited),  and  the  ruling  iu  Nickley  v.  Thomas,  22  Barb.  652,  more  satisfac- 
tory than  Low  v.  Conn.  <fec.  R.  R.  Co.  45  N.  H.  370,  §  1.  See  paragraphs  20  and  21. 
1  Hoe  v.  Sanborn,  36  N.  Y.  93,  s.  c.  3  Abb.  Pr.  N.  S.  189;  35  How.  Pr.  197;  Jef- 
ferson ville,  <fec.  R.  R.  Co.  v.  Lanahan,  27  Ind.  171. 

*  See  Beecher  v.  Denniston,  13  Gray,  354. 

3  See  Judson  v.  Easton,  58  N.  Y.  664,  affi'g  1  Snpm.  Ct  (T.  &  C.)  598. 

4  Brown  v.  Elliott,  4  Daly,  329,  333,  and  cases  cited. 
s  Sturm  v.  Williams,  38  Super.  Ct.  (J.  &  S.)  323,  844. 

8  Mish  v.  Wood,  34  Penn.  St.  451 ;  Orr  v.  Mayor,  <fec.  of  N.  Y.  64  Barb.  106 ;  and 
see  Draper  v.  Saxton,  118  Mass.  428.  Contra,  where  the  matter  is  not  one  for  expert 
testimony.  Hook  v.  Stowell,  80  Geo.  418,  422;  Board  v.  Kirk,  11  N.  II.  397;  and 
see  Sunderlin  v.  Wyman,  1  Supm.  Ct.  (T.  &  C.)  adden.  17.  It  is  not  error  to  allow 
the  expert  who  is  familiar  with  the  particular  thing  to  designate  the  similar  article 
he  has  known  sold  in  general  terms,  as  "  like  "  the  thing;  in  controversy,  instead  of 
describing  it  and  leaving  the  jury  to  judge  of  its  similarity.  Hachett  v.  Boston,  Ac, 
R.  R.  Co.  35  N.  H.  390,  398. 

'  See  McCollum  v.  Seward,  62  N.  Y.  816. 

8  See  Jackson  v.  TS.  Y.  Central  R.  R.  Co.  2  Supm.  Ct.  (T.  <fe  C.)  653. 

•  Greeley  v.  Stilson,  27  Mich.  153 ;  but  compare  Lawton  v.  Chase,  108  Mass.  238. 
10  Alfonso  v.  United  States,  2  Story,  421. 

»  Lush  v.  Druse,  4  Wend.  313;  Cliquot's  Champagne,  3  "Wall.  143. 


312  ACTIONS  FOR  TRICE  OF  GOODS,  Ac.  ^ 

counts ; l  nor  bj  the  fact  that  his  general  experience  and  knowl- 
edge is  not  aided  by  knowledge  of  sales  on  the  very  day  in  ques- 
tion ; 2  nor  is  it  made  incompetent  by  the  fact  that  nis  knowledge 
of  market  value  is  derived  mostly  from  sales  on  credit,  for  by 
cross-examination  the  difference  in  price  between  cash  and  credit 
sales  may  be  ascertained.8  In  cases  where  there  is  a  market  value, 
the  usual  mode  of  proving  it  is  by  a  general  question  as  to  value 
or  price  at  the  particular  time  and  place,  without  reference  to 
actual  sales ;  but  in  such  cases  inquiries  as  to  particular  sales  are 
admitted  on  cross-examination,  and  for  the  purpose  of  testing  the 
accuracy  and  extent  of  the  witness'  knowledge.4 

24.  Time  for  performance  or  payment.] — If  the  time  for  de- 
livery or  payment  is  fixed  by  the  terms  of  the  writing,  evidence 
of  a  contemporaneous  oral  stipulation  for  a  different  time  is  in- 
competent.5 If  by  not  designating  any  time  in  their  writing,  the 
parties  have  made  a  contract  which  by  implication  of  law  allows 
a  reasonable  time,  oral  evidence  of  a  contemporaneous  stipulation 
fixing  a  date  is  incompetent ; 6  but  the  circumstances  and  conver- 
sations of  the  parties  at  the  time  the  contract  was  entered  into 
may  be  proved  for  the  purpose  of  showing  what  they  regarded 
as  a  reasonable  time.7  Upon  the  same  principle  if  the  writing 
names  no  place  of  delivery,  the  law  fixes  it,  and  oral  evidence  of  a 
contemporaneous  stipulation  for  a  different  place  is  incompetent.8 
So  if  the  terms  of  the  writing  contemplate  a  single  quantity  or 
delivery,  oral  evidence  is  not  competent  to  show  a  contempora- 
neous understanding  of  the  parties  that  on  successive  delivery  in 
parcels  payment  should  be  made  for  each  parcel  as  delivered.9  So 
if  the  writing  calls  for  delivery  of  a  specified  quantity  of  mer- 
chandise in  a  month  or  year,  or  in  each  of  several  successive  periods 
without  other  limitation,  extrinsic  evidence  is  not  competent  to 
show  that  it  was  intended  by  the  parties  that  the  delivery  within 
any  period  should  be  regulated  in  time  and  quantity  by  the  exi- 
gencies of  the  purchaser's  business.10 

Upon  the  question  whether  the  sale  was  entire,  the  circumstance 


1  Alfonso  v.  United  States,  2  Story,  421. 

8  Norman  v.  Ilsley,  22  Wise.  27 ;  Belden  v.  Nicolay,  4  E.  D.  Smith,  14. 

8  Judson  v.  Easton,  58  N.  Y.  664,  affi'g  1  Supm  Ct.  (T.  <fe  C.)  598.  See  as  to  sales 
In  exchange  for  things  in  action,  or  at  an  inflated  estimate,  Sturm  v.  Williams,  38 
Supm.  Ct.  (J.  <fe  S.)  323. 

4  Dana  v.  Fiedler,  1  E.  D.  Smith,  463,  474.     Com  pare  paragraph  21  (abov<-). 

6  Parol  evidence  that  by  the  custom  of  merchants,  the  words  "  to  arrive  by  the 
15th  of  Nov."  meant  "  deliverable  on  or  before  the  15th  of  Nov."  held  incompetent. 
Rogers  v.  Woodruff,  23  Ohio  St.  632,  s.  c.  13  Am.  R.  276;  see  also  Stewart  v. 
Sender,  4  Zab.  N.  J.  96. 

6  Greaves  v.  Ashlin,  3  Camp.  426  ;  Halliley  v.  Nicholson,  1  Price,  404  ;  Cocker 
V.  Franklin  Hemp  <fe  Flax  Manuf.  Co.  3  Sumn.  530. 

1  Cocker  v.  Franklin  Hemp,  <fec.  Co.  (above). 

8  La  Farge  v.  Rickert,  5  Wend.  187,  and  ca,ses  cited. 

9  Baker  v.  Higgins,  21  N.  Y.  897.     Compare  Winne  v.  McDonald,  39  Id,  238; 
Gault  v.  Brown,  48  N.  H.  183,  s.  c.  2  Am.  R.  210. 

10  Curtiss  v.  Howell,  39  N.  Y.  211. 


THE  FACT  OF  SALE.  313 

that  the  bargains,  though  for  different  lots  of  the  same  kind  of 
property,  lying  at  different  places,  were  all  made  on  the  same 
day,  is  entitled  to  some  weight.1  So  is  the  fact  that  all  were  in- 
cluded in  one  bill.2 

Where  the  contract  omits  to  fix  any  time  for  payment,  the 
presumption  is  that  the  delivery  and  payment  are  to  be  concur- 
rent acts.3  If  a  sale  on  credit  is  proved,  evidence  of  a  usage  to 
give  notes  is  competent,  and  if  knowledge  of  it  may  be  imputed 
to  defendant,  it  will  be  presumed  that  the  parties  contracted 
with  reference  to  such  usage,  there  being  nothing  in  the  contract 
to  the  contrary.4  If  a  term  of  credit,  or  payment  in  negotiable 
paper,  or  the  like,  was  agreed  for,  the  seller  may  recover  imme- 
diately, regardless  of  the  stipulation,  on  proof  that  the  defend- 
ant, on  being  requested  to  pay  the  amount  due,  or  give  his  notes 
at  long  periods,  or  make  sume  arrangement  in  reference  to  the 
debt,  absolutely  refused  to  perform,5  or  that  defendant  induced 
plaintiff  to  give  the  credit  by  fraud.6 

25.  Conditions    and    warranties.'] — Where   the    obligations 
are  concurrent,  either  who  seeks  to  enforce  the  obligation  of  the 
other  must  prove  performance  of  his  own,  or  an  offer  to  per- 
form.7   But  under  a  stipulation  to  do  an  act  if  called  for,  or  when 
or  as  directed  by  the  other,  the  burden  is  on  the  latter  to  prove 
that  he  called  for  or  directed  the  act.8    Where  there  is  a  com- 
plete actual  delivery  of  goods  sold  on  a  condition,  the  burden  is 
on  him  who  claims  that  the  condition  was  not  waived  by  delivery, 
of  showing  that  fact.9    If  plaintiff's  evidence  shows  a  warranty 
he  must  also  show  that  the  thing  corresponded  to  it,  or  that  de- 
fendant, by  failing  seasonably  to  object,  or  otherwise,  waived  it. 
The  mode  of  this  proof  is  stated  in  connection  with  warranties. 

26.  Options.'] — It  is  not  competent  for  one  sued   upon  his 
written  contract,  to  show  a  parol  agreement  made  prior  or  con- 
temporaneously with  it,  that  he  might  countermand  it  subse- 
quently if  he  chose,  and  that  he  did  so.     Parol  evidence  that  the 
commencement  of  the  obligation  was  suspended,  might  be  received, 
that  is  to  say,  of  a  condition  precedent,  but  not  of  a  defeasance 
or  condition  subsequent.10    But  a  mere  memorandum,  unsigned, 

1  Biggs  v.  Whisking,  25  Eng.  L.  &  "Eq.  257  (compare  Swift  v.  Opdyke,  43  Barb. 
274). 

1  Id.     Compare  Gardner  v.  Clark,  21  N.  Y.  399  ;  Mount  v.  Lyon,  49  N.  Y.  652. 

3  Tipton  v.  Feitner,  20  N.  Y.  423.     Otherwise,  perhaps  where  the  seller  does  not 
undertake  to  deliver,  as  in  a  contract  for  sand  to  be  excavated  and  carried  away 
within  a  year.     Brehen  v.  O'Donnell,  34  N.  J.  Law,  408. 

4  Salmon  Falls  Manuf.  Co.  v.  Goddard,  14  How.  U.  S.  446. 

6  Lee  v.  Decker,  6  Abb.  Pr.  N.  S.  392;  Wills  v.  Simmonds,  8  Hun,  189,  and  cases 
cited;  Hochster  v.  De  La  Tour,  2  Ell.  <fe  B.  678.  And  see  Snoot's  case,  15  Wall.  36. 

•  Wei^and  v.  Sichel,  4  Abb.  Ct.  App.  Dec.  592,  affi'g  34  Barb.  84 ;  Roth  v.  Pal- 
mer,  27  Barb.  652,  and  cases  citi'd. 

'  Dunham  v.  Pettee,  8  N,  Y.  508. 

8  H ollister  v.  Bender,  1  Hill,  150 ;  West  v.  Newton,  1  Duer,  277. 

9  Smith  v.  Lynes,  5  N.  Y.  41,  rev'g  3  Sandf.  203. 

10  Wemple  v.' Knopf,  16  Minn.  440,  u.  c.  2  Am.  R.  147. 


314  ACTIONS  FOR  PRICE  OF  GOODS,  <ko. 

though  indicating  a  sale,  may  be  explained  by  parol  evidence 
that  it  was  a  sale  on  return,  or  a  delivery  to  an  agent  to  sell.1 
Not  so  of  a  written  contract.2  But  under  an  optional  contract, 
for  which  writing  is  required,  the  option  may  be  exercised  by 
parol  notice.8  An  optional  contract  for  future  sale  is  not  pre- 
sumed to  be  a  gaming  contract,  but  the  burden  is  on  him  who 
impeaches  it  to  show  the  illegal  intent.4 

27.  Subsequent  modification.] — At  common  law,  the  fact  that 
the  contract  was  in  writing  does  not  exclude  oral  evidence  of  a 
subsequent  modification,  if  the  instrument  was  not  under  seal ; 5 
and  even  if  under  seal,  a  subsequent  waiver  of  a  stipulation  as  to 
time  may  be  proven  as  an  estoppel.6  If  the  statute  of  frauds 
requires  a  writing,  the  modification  sought  to  be  proved  must  be 
evidenced  by  writing  as  well  as  the  original  contract.7  A  party 
alleging  a  modification  of  a  written  agreement  to  have  been  made 
by  conduct  on  the  other  side  amounting  to  a  substitution  of 
another  arrangement,  must  clearly  show  not  only  his  own  under- 
standing as  to  the  new  terms,  but  that  the  other  party  had  the 
same  understanding.8 

28.  Delivery  or  offer."] — In  an  action  by  a  seller  of  goods  sold 
to  be  paid  for  on  delivery,  plaintiff  must  prove,  not  only  that 
the  buyer  failed  to  pay,  but  that  he  himself  offered  to  deliver  the 
goods.  The  obligations  of  the  parties  to  such  a  contract  being 
concurrent,  whichever  one  seeks  to  enforce  it  must  show  a  tender 
of  performance  on  his  part.  Until  that  be  shown,  he  is  himself 
in  default.9  If  he  proves  a  delivery  at  the  place  agreed,  and  that 
there  remained  nothing  further  for  him  to  do,  he  need  not  show 
an  acceptance  by  the  buyer,10  unless  the  order  or  contract  was 
not  strictly  complied  with  by  plaintiff.11 

Delivery  may  be  proved  by  evidence  of  an  admission  by  the 
buyer  of  the  correctness  of  the  account  against  him,  there  being 
no  dispute  on  the  trial  as  to  the  amount ; n  and  from  evidence  that 

1  Errico  v.  Brand,  9  Hun,  654. 

a  Marsh  v.  Wickham,  14  Johns.  167;  and  see  Depew  v.  Keyser,  3  Duer,  835. 

'Brown  v.  Hall,  5  l.ans.  177. 

4  Story  v.  Solomon,  71  N.  Y.  420,  affi'g  6  Daly,  531. 

6Benj.  on  S.  §  216. 

6  Hadden  v.  Dimmick,  16  Abb.  Pr.  K  S.  140 ;    Fleming  v.  Gilbert,  3  Johns.  628; 
Townsend  v.  Empire  Stone  Dressing  Co.  6  Duer,  208. 

7  Hickman  v.  Haynes,  L.  R.    10  C.  P.  598,  605,  s.  c.  14  Moak's  Eng.  447,  453  ; 
Swain  v.  Semens,  9  Wall.  271,  and  cases  cited.     Contra,  Cummings  v.  Arnold,  5  Mete. 
486 ;  Gault  v.  Brown,  48  N.  H.  183 ;  and  see  Benj.  on  S.  §  216,  and  notes.     On  the 
ground  that  the  terms  of  a  sealed  agreement  cannot  be  varied  by  a  subsequent 
parol  contract,  so  as  to  authorize  a  suit  on  the  sealed  agreement,  which  puit  without 
the  parol  contract,  could  nut  be  sustained ;  it  has  been  held  that  the  existence  of  the 
sealed  agreement,  in  such  a  case,  is  no  bar  to  a  suit  on  the  parol  contract.     Sinard 
V.  Patterson,  3  Blackf.  353,  357. 

8  Utley  v.  Donaldson,  94  U.  S.  48,  and  cases  cited. 

9  Dunham  v.  Pettee,  8  K  Y.  4  Seld.  508 ;  4  E.  D.  Smith,  600. 
10  Nichols  v.  Morse,  100  Mass.  523. 

"  Corning  v.  Colt,  5  Wend.  253. 

18  N.  Y.  Ice  Co.  v.  Parker,  21  How.  Pr.  302. 


PERFORMANCE,  Ac.  315 

he  denied  having  received  part  of  the  goods,  it  may  be  inferred 
that  he  received  the  other  articles  mentioned  in  the  bill ; l  and 
his  admission  that  he  had  had  the  goods,  is  sufficient  evidence  of 
delivery,  to  go  to  the  jury,  though  it  appear  they  were,  in 
fact,  delivered  to  another  person,2  especially  if  by  his  authority.3 
So  his  promise  to  pay  a  draft  which  had  been  drawn  on  him  for 
the  price  of  the  goods  is,  with  other  evidence  tending  to  show 
delivery,  competent  evidence  of  delivery.4  An  order  drawn  by 
defendant  for  the  delivery  of  the  goods  to  the  bearer,  or  to  a  per- 
son shown  to  have  had  possession  of  the  order,  is,  when  pro- 
duced from  the  possession  of  the  drawee,  and  its  execution  proved, 
prima  facie  evidence  that  he  delivered  the  goods.5  If  the 
order  is  in  favor  of  a  specified  person,  the  receipt  of  such  person 
is  competent  against  the  drawer.6  Delivery  cannot  be  made  out 
by  proof  of  a  usage  to  treat  as  a  delivery  that  which  is  not  in 
law  a  delivery.7  Delivery  if  shown  is  presumed,  in  the  absence 
of  evidence  to  the  contrary,  to  be  in  fulfillment  of  the  contract ; 
but  evidence  is  competent  that  it  was  made  for  the  purpose  of 
allowing  examination  of  the  goods,  and  in  such  case,  evidence 
that  this  was  the  usual  course  of  dealing  is  competent,  though  it 
would  not  be,  in  the  absence  of  anything  else  to  qualify  legal 
effect  of  a  delivery.8  If  the  circumstances  relied  on  as  constitut- 
ing delivery  or  acceptance  are  equivocal,  the  person  who  per- 
formed either  act  may  testify  to  his  intent  in  doing  it.9 

Evidence  of  discrepancy  in  size  or  weights  of  packages  is  met 
by  showing  that  the  buyer  waived  it  by  receiving  them  with 
knowledge.10  If  the  sale  was  subject  to  inspection  of  a  third  per- 
son, there  should  be  evidence  of  his  determination,11  and  in  the 
form  contemplated  by  the  contract ;  but  this  may  be  dispensed 

with  by  a  waiver.13    Inspection  duly  had  under  such  a  contract  is 

1     •      i<? 
conclusive.18 

29.  Delivery  through  carrier, .] — Evidence  of  the  shipping 
of  goods  ordered  by  defendants,  and  the  mailing  of  the  bills  of 
lading  to  defendants,  and  that  the  bills  were  not  returned,  and 
that  at  the  terminus  the  carrier's  servant  delivered  merchandise 


1  Power  v.  Root,  3  E.  D.  Smith,  70. 

*  Griffin  v.  Keith,  1  Hilt.  58. 

1  Monroe  v.  Hoff,  5  Den.  360. 

4  Patterson  v.  Stettauer,  40  Super.  Ct.  (J.  <fe  S.)  54. 

6  Alvord  v.  Baker,  9  Wend.  823.     Contra,  Blounf  v.  Starkey,  1  Tayl.  N.  C.  110, 
8.  c.  2  Hayw.  75. 

9  Rawson  v.  Adams,  17  Johns.  130. 

7  Suydam  v.  Clark,  2  Sandf.  133  ;  and  see  Smith  v.  Lynes,  3  Id.  203  ;  5  N.  T.  41. 

8  Haskins  v.  Warren,  115  Mans.  514. 

•Hale  v  Taylor,  45  N.  H.  405;  Southwestern  R.  R.  Co.  v.  Rowan,  43  Geo.  411. 
Compare  Folsom  v.  Batchelder,  2  Fost.  (N.  H.)  47. 

10  Fitch  v.  Carpenter,  40  Barb.  40. 

11  McAndrews  v.  Santee,  7  Abb.  Pr.  N.  S.  408,  8.  o.  57  Barb.  193;  Stephens  v. 
Santee.  49  N.  Y.    35,  rev'g  51  Barb.  532. 

11  Clinton  v.  Brown,  41  Barb.  226 ;  Gillespie  v.  Carpenter,  1  Robt.  65,  8.  c.  25 
How.  Pr.  203;  Delafield  v.  De  Grauw,  9  Boew.  1 ;  1  Abb.  Ct,  App.  Dec.  600. 

13  Severcool  v.  Farewell,  17  Mich.  808.  Otherwise  of  mere  official  inspection. 
Clintsman  v.  Northrop,  8  Cow.  45;  Williams  v.  Merle,  41  Wend.  80. 


316  ACTIONS  FOR  PRICE  OF  GOODS,  <fcc. 

such  as  is  described,  to  defendants,  and  that  they  paid  the  freight 
bills  without  objection,  is  prima  facie,  and,  if  unexplained,  suf- 
ficient evidence  of  delivery.1  If  the  seller  sent  the  goods  in  a 
manner  directed  by  the  buyer,  his  mistake  in  addressing  them 
will  not  defeat  his  right  to  recover,  unless  there  be  some  evidence 
that  the  loss  was  attributed  to  the  error ;  in  other  words,  that  the 
error  was  material.2  If  the  mode  of  transportation  was  not  fixed 
by  the  contract,  evidence  of  usage  is  competent  on  the  question 
of  the  duty  of  the  seller  in  respect  to  taking  and  forwarding  a 
bill  of  lading.8 

30.  Tender."] — An  averment  of  tender  (when  it  is  an  act  in  pais, 
not  part  of  the  contract)  simply  affirms  that  the  party  had  done 
all  in  his  power,  toward  fulfilling  his  obligation  ;  and  under  this 
averment,  proof  that  the  other  party  had  prevented  or  dispensed 
with  some  of  the  legal  requisites  of  a  formal  tender,  is  admissible.4 
Evidence  that  the  person  making  the  tender  found  at  the  place  of 
business  of  the  other  party  a  person  answering  to  the  name,  who 
said  he  was  the  man,  and  admitted  the  contract  to  be  his,  but  re- 
fused to  pay  the  money,  is  competent  to  go  to  a  jury  upon  the  ques- 
tion of  identity,  and  sufficient  to  uphold  a  verdict  in  the  absence  of 
all  evidence  tending  to  raise  any  suspicion  of  mistake  or  collusion.5 
Evidence  of  a  refusal 6  or  delaration  of  inability,7  either  by  the 
buyer8  as  to  receiving  or  paying,  or  by  the  seller9  as  to  delivery, 
made  to  the  other  party1"  on  his  due  demand,11  dispenses  with 
proof  of  formal  tender. 

31.  Packing  and  freight."] — In    the   absence  of   agreement 
there  is  no  implied  promise  to  pay  for  the  packing  done  for  the 
purpose  of  making  delivery  as  agreed,  even  though  the  goods 
were  put  into  the  buyer's  cases  or  bags.18    But  evidence  of  usage 
is  competent  for  the  purpose  of  showing  which  party  is  charge- 
able with  expenses  of  packing,  wrappers  or  cases,  and  freight.13 

32.  The  passing  of  the  titled} — The  question  whether  the  prop- 

1  Cooper  v.  Coates,  21  Wall.  110.     If  delivery  to  the  carrier  is  full  performance, 
receipt  by  the  buyer  need  not  be  shown.     62  N.  Y.  272. 
2Garretson  v.  Selby,  37  Iowa,  629,  s.  c.  18  Am.  R.  14. 

3  Johnson  v.  Stoddard,  lOOMr.ss.  306;  Putnam  v.  Tillotson,  13  Mete.  517.     Com- 
pare  Magrudvr  v.  Gage,  33  Md.  344. 

4  Holmes  v.  Holmes,  9  N.  Y.  525,  affi'g  12  Barb.  137.     Compare  5  Duer,  336. 

5  Howard  v.  Holbrook,  9  Bosw.  237,  s.  c.  23  How.  Pr.  64. 

6  Dana  v.  Fiedler,  1  E.  D.  Smith,  463. 

7  Wheeler  v.  Garcia,  40  N.  Y.  584,  affi'g  2  Robt.  280. 
8Bungev.  Koop,  5  Robt.  1. 

"Wheeler  v.  Garcia  (above). 

10  Otherwise  of  a  mere  declaration  to  a  stranger.   McDonald  v.Williams,  1  Hilt.  365. 

11  Wheeler  v.  Garcia  (above).     As  to  a  refusal  deliberately  made  in  anticipation  of 
the  time  for  a  demand,  and  with  intent  that  it  may  be  acted  on,  eee  17  Q.  B.  127,  s.  c. 
15  Jur.  877,  6  Eng.  L.  <fe  Eq.  230;  2  El.  &  B.  678,  s.  c.  17  Jur.  972,  20  En<^.  L.  <fe  Eq. 
157 ;  42  N.  Y.  246,  61  Id.  362,  69  Id.  293 ;  16  Abb.  Pr.  N.  S.  428,  1  Abb.  New  Cas.  93. 

12  Cole  v.  Kerr,  20  Vt.  21.     Contra,  Burr  v.  Williams,  23  Ark.  244. 

13  Robinson  v.  United  States,  13  Wall.  363 ;  Howe  v.  Hardy,  106  Mass.  329 ;  Beni 
on  S.  §  698. 


PERFORMANCE,  Ac.  317 

erty  had  passed  at  any  given  time  is  one  of  intention,  which,  if 
not  expressed,  is  to  be  collected  from  all  the  circumstances,  and 
no  single  circumstance  is  necessarily  conclusive  in  all  cases,  but  the 
conclusion  to  be  drawn  must  depend  on  a  balance  of  the  various 
circumstances  on  one  side  and  the  other.1  The  following  rules 
are  a  guide  in  ascertaining  the  intention : a 

1.  Where,  by  the  agreement,  the  seller  is  to  do  anything  to  the 
goods  for  the  purpose  of  putting  them  into  that  state  in  which 
the  buyer  is  bound  to  accept  them  (or,  as  it  is  sometimes  worded, 
into  a  deliverable  state),  the  performance  of  these  things  must,  in 
the  Absence  of  circumstances  indicating  a  contrary  intention,  be 
taken  to  be  a  condition  precedent  to  the  vesting  of  the  property.3 

2.  Where  anything  remains  to  be  done  to  the  goods  for  the 
purpose  of  ascertaining  ,the  price,  as  by  weighing,  measuring,  or 
testing  the  goods,  where  the  price  is  to  depend  on  the  quality  or 
quantity  of  the  goods,  the  performance  of  these  things  must 
also  be  a  condition  precedent  to  the  transfer  of  the  property,  al- 
though the  particular  goods  be  ascertained,  and  they  are  in  the 
state  in  which  they  ought  to  be  accepted.4 

3.  Where  the  buyer  is  by  the  contract  bound  to  do  anything 
as  a  consideration,  either  precedent  or  concurrent,  on  which  the 
property  depends,  the  property  will  not  pass  until  the  condition 
be  fulfilled,  even  though  the  goods  may  have  been  actually*  deliv- 
ered into  the  possession  of  the  buyer.5 

4.  The  giving  of  earnest  does  not  pass  the  property  in  the 
subject  matter  of  the  sale,  where  the  completed  bargain  if  proved 
in  writing,  or  in  any  other  sufficient  manner,  would  not  have 
equally  altered  the  property.6 

On  the  other  hand,  if  tne  express  contract  or  the  acts  of  the 
parties  manifest  a  clear  intent  to  vest  the  title  immediately  in 
the  buyer,  its  passing  is  not  postponed  by  the  fact  that  the  seller 
undertook  to  make  a  delivery,7  or  procure  necessary  authority  for 
the  shipment,8  or  even  that  there  had  been  no  actual  separation 
of  the  thing  sold  from  an  entire  mass  of  which  it  was  part.9 


1  A  stipulation  for  "  cash  on  bill  of  lading  "  would,  in  the  absence  of  other  cir- 
cumstances, be  sufficient  evidence  that  title  was  not  to  pass  before  payment ;  but 
may  be  countervailed  by  such  circumstances  as  that  the  good3  were  packed  in  the 
buyer's  sacks,  that  part  payment  had  been  made  in  earnest,  and  that  the  goods  were 
deliverable  free  on  board.  Ogg  v.  Shuter,  L.  R.  IOC.  P.  159,  s.  o.  11  Moak  Ens?.  316. 

4  See  Benj.  on  S.  235  ;  Blackb.  on  S.  151 ;  The  Elgee  Cotton  Cases,  22  Wall.  180, 
188. 

3  Id. ;  Anderson  v.  Morice,  L.  R.  10  C.  P.  609,  618,  rev'g  11  Eng.  Rep.  262,  s.  c. 
14  Moak's  Eng.  465,  463;  Ganson  v.  Madigan,  15  Vt.  144. 

4  The  Elgee  Cotton  Cases  (above) ;  and  see  Kein  v.  Tapper,  52  N.  Y.  550,  affi'g 
83  Super.  Ct.  (1  J.  AS.)  465. 

8  Elgee  Cotton  Cases  (above). 
•Id. 

7  Terry  v.  Wheeler,  25  N.  Y.  520 ;  and  see  Stiles  v.  Rowland,  32  Id.  309  ;  Brad- 
ley  v.  Wheeler,  44  N.  Y.  495,  affi'g  4  Rob.  18. 

8  Waldron  v.  Romaine,  22  N.  Y.  368. 

»  Kimberly  v.  Patchin,  19  N.  Y.  330;  Russell  v.  Carrington,  42  N.  Y.  118. 


318  ACTIONS  FOR  PRICE  OF  GOODS,  <ko. 

On  the  question  of  the  intent  of  the  parties  in  the  acts  per- 
formed by  them,  theii;  declarations,  part  of  the  res  gcstce,  are  com- 
petent,1 and  so  is  the  testimony  of  each  to  his  understanding  at 
the  time  of  the  transaction,  if  such  understanding  does  not  con- 
flict with  law.2  In  the  absence  of  express  proof  of  the  terms  of 
the  contract,  evidence  is  admissible  of  the  course  of  business  in 
former  dealings  between  the  parties,  of  the  same  character,  in  order 
to  show  whether,  in  the  acts  done  under  the  sale  in  question,  there 
was  an  intent  to  pass  title.3 

33.  Delivery  to  satisfy  the  statute  of  frauds.] — Where  de- 
livery is  relied  on  for  the  purpose  of  proving  a  valid  contract, 
Tinder  the  statute  of  frauds,  in  the  absence  of  a  writing  or  part 
payment,  stricter  proof  may  be  required.  Mere  words  of  delivery, 
though  the  thing  were  present  and  pointed  out,  will  not  suffice.4 
The  delivery  of  a  bill  of  lading  or  other  written  evidence  of 
property  and  dominion  is  not  enough,  unless  it  is  shown  or  may 
be  inferred  that  both  parties  intended  that  it  should  pass  the 
property.  If  it  was  obtained  from  the  seller  without  intent  on 
his  part  to  deliver  it,5  or  left  with  the  buyer  without  intent  on 
his  part  to  accept  the  goods  thereby,6  the  statute  is  not  satisfied. 
Delivery  by  the  seller  to  a  third  person  pursuant  to  the  buyer's 
direction  is  enough,7  unless  the  buyer  had  a  right  of  examination 
before  acceptance,8  and  even  then  is  enough,  it  such  third  person 
was  authorized  by  him  to  accept  so  as  to  conclude  him.9 

Evidence  of  a  delivery  to  a  general  carrier  not  selected  by  the 
buyer  is  not  enough ;  although  it  might  be  if  there  were  a  valid 
contract  otherwise  proved.10  Evidence  of  delivery  to  a  carrier 
designated  for  the  purpose  by  the  buyer  is  enough,  if  coupled 
with  evidence  that  the  buyer  had  previously  accepted  the  goods,11 
or  that  the  carrier  had  express  authority  to  accept  so  as  to  con- 
clude as  to  quality ; u  otherwise  not. 

Symbolical  delivery  of  bulky  articles  may  be  proved  by  any 
act  importing  a  surrender  on  one  side  and  acceptance  on  the 


1  See  Clark  v.  Rush,  19  Cal.  893. 

2  Prescott  v.  Locke,  51  N.  H.  94,  s.  c.  12  Am.  R.  55.    Compare  Foley  v.  Mason, 
6  Md.  37 ;  Benj.  on  S.  §  213. 

3  Lelar  v.  Brown,  15  Penn.  St.  215.     So  held  in  trespass  for  seizing  the  goods  as 
the  sellers.     Compare  Richarda  v.  Millard,  56  N.  Y.  574. 

4  Shindlerv.  Houston.  1  N.Y.  261. 

6  Brand  v.  Focht,  1  Abb.  Ct.  App.  Dec.  185,  s.  c.  5  Abb.  Pr.  K  S.   225,  affi'g  6 
Robt.  426 ;  30  How.  Pr.  813. 

8  Quintard  v.  Bacon,  99  Mass.  185;  and  see  Rodgers  v.  Phillips,  40  N.  Y.  619. 

7  Dyer  v.  Forest,  2  Abb.  Pr.  282. 

8  See  Stone  v.  Browning,  51  N.  Y.  211,  reVg  49  Barb.  244;  again  68  N.  Y. 

9  Allard  v.  Greasert,  61  N.  Y.  1. 

10  Rodgers  v.  Phillips,  40  N.  Y.  519. 

11  Cross  v.  O'Donnell,  44  N.  Y.  661. 

11  Allard  v.  Greasert,  61  N.  Y.  1 ;  Grimes  v.  Van  Vechten,  20  Mich.  410.  Deliv- 
ery to  carrier,  if  sufficient  at  common  law,  is  enough  under  a  contract  made  and  to 
be  performed  in  another  State,  unless  the  statute  of  frauds  of  that  State  is  proved  as 
a  fact  Wilcox  Silver  Plate  Co.  v.  Green,  9  Hun,  347. 


PERFORMANCE,  Ac.  319 

other,1  such  as  delivering  a  schedule  of  them,2  or  the  keys  of 
the  repository,3  with  that  intent. 

It  is  not  essential  that  a  delivery  to  satisfy  the  statute  be 
shown  to  have  been  contemporaneous  with  the  oral  agreement. 
A  delivery  even  several  months  afterward  may  be  proved.4 

Any  acts  of  the  parties  indicative  of  ownership  by  the  buyer 
may  be  given  in  evidence  by  the  seller  to  show  the  receipt  and 
acceptance  of  the  goods.  Conduct,  acts  and  declarations  are  all 
competent.5  An  attempt  on  the  part  of  the  buyer  in  good  faith, 
immediately  on  receipt  and  examination  of  the  goods,  to  com- 
municate to  the  seller  a  message  declining  to  accept,  is  competent 
as  a  part  of  the  res  gestce,  and  material  as  qualifying  the  act  of 
receiving  and  retaining  the  goods.6  In  whatever  way  the  fact  is 
proved,  the  evidence  must  show  both  delivery  and  acceptance  of 
the  thing  sold,  or  some  part  of  it,  and  that  they  were  intended 
by  the  parties  to  effect  a  final  and  complete  change  of  property.7 
If  the  circumstances  be  such  that  the  buyer  is  not  hnally  pre- 
cluded from  objecting  that  the  goods  do  not  correspond  with  the 
contract,  they  are  not  enough.8 

34.  Part  payment  to  satisfy  the  statute  of  frauds.] — Upon 
the  same  principles  mere  words  of  agreement,  however  effectual 
they  might  be,  independent  of  the  statute,  to  establish  an  accord 
and  satisfaction  or  payment  by  application  of  indebtedness,  cannot 
satisfy  the  statute.9    There  must  be  an  act  of  payment  or  written 
evidence.10    But  an  actual  payment  made  for  the  purpose  of  bind- 
ing the  parties,  though  not  made  at  the  time  of  the  oral  agree- 
ment, is  a  renewal  of  it,  and  effectual.11 

35.  Various  rules  admitting  documents  otherwise  incompe- 
tent.']— There  are  several  principles  of  growing  importance  in 
the  present  state  of  the  law,  under  which  entries  or  memoranda 
which  are  not  in  themselves  competent,  are  admissible  as  auxiliary 
to  oral  testimony. 

36.  Contemporaneous  'memoranda.] — When  a  witness  has  tes- 
tified that  he  made  a  memorandum  of  a  transaction  had  in  his 


I  Stanton  v.  Small,  8  Sandf.  230. 
8  Dixon  v.  Buck,  42  Barb.  70. 

*  Parker  v.  Jervis,  3  Abb.  Ct.  App.  Dec.  449 ;  Gray  v.  Davis,  10  N.  Y.  6  Seld.  285. 

4  McKnight  v.  Dunlop,  6  N.  Y.  637. 

6  Where  the  goods  were  liquors,  and  labels  intended  to  be  put  on  the  bottles  were 
sold  with  them  as  a  part  of  the  contract : — Held,  the  delivery  and  acceptance  of  the 
labels  was  evidence  to  goto  the  jury  of  acceptance  of  all  under  the  statute  of  frauds, 
in  connection  with  a  letter  from  defendants  admitting  the  existence  of  a  contract  and 
implying  that  the  liquors  had  been  sold.  Garfield  v.  Paris,  96  U.  S.  (6  Otto),  557. 

8  Caulkins  v.  Hellman,  47  N.  Y.  449. 
.    T  Hewes  v.  Jordan,  39  Md.  472,  s.  o.  17  Am.  R.  578. 

s  Id. 

'  Mnttice  v.  Allen,  3  Abb.  Ct.  App.  Dec.  248,  rev'g  33  Barb.  543. 

10  Brabin  v.  Hyde,  32  N.  Y.  519,  rev'g  30  Barb.  265. 

II  Bissell  v.  Balcom,  39  N.  Y.  275,  rev'g  40  Barb.  98 ;  Allis  v.  Read,  45  N.  Y.  142. 


320  ACTIONS  FOR  PRICE  OF  GOODS,  <fco. 

presence,  the  memorandum  may  be  read  in  evidence,1  if  it  was 
read  to  or  by  the  parties  and  assented  to  as  embodying  their 
agreement,  or  certain  terms  of  it,  or  if  the  making  of  it  was  part 
o?  the  res  gestc/B  of  an  act  of  the  witness  already  properly  in 
evidence.2  But  if  neither,  the  mere  fact  that  it  was  a  contempor- 
aneous memorandum  does  not  render  it  competent.3 

37.  Memoranda  refreshing  memory.'] — A  witness  whose  re- 
collection is  not  sufficient  to  enable  him  to  answer  a  question 4 
may,  notwithstanding  he  is  under  examination  at  the  time,  refresh 
his  memory  by  referring  to  a  writing  or  other  record  or  docu- 
ment 5  as  a  memorandum,  in  the  following  cases : 

1.  If  the  memorandum  was  made  by  himself  (or  by  another 
person  at  his  dictation),6  at  the  time  of  the  transaction  concerning 
which  he  is  questioned,  or  so  soon  afterward  that  the  judge  con- 
siders it  likely  that  the  transaction  was  at  that  time  fresh  in  his 
memory ; 7  or  if  made  by  any  other  person,  and  read  by  the  witness 
within  the  same  limits  as  to  time,  and  if,  when  he  read  it,  he  knew 
it  to  be  correct.8  If  the  witness  testifies  that  he  knew  the  writing 
to  be  correct  at  the  time  he  made  or  read  it,9  the  competency  of 
testimony  made  by  its  aid  is  not  impaired  by  the  fact  that  he  re- 
lies not  on  his  memory  of  the  fact  itself,  but  on  his  confidence  in 
the  accuracy  of  the  memorandum.10 

A  memorandum  which  is-  proper  under  this  rule,  and  is 
used  accordingly,  becomes  competent,  and  may  be  read  as  evidence 
of  the  facts  testified  to  from  it,11  if  it  be  the  original  entry,  not  a 
copy,12  and  if  the  witness'  memory,  after  being  refreshed,  does 
not  enable  him  to  testify  to  the  facts  without  the  memorandum.13 
It  is  not  error,  however,  to  allow  a  copy  made  by  the  witness  from 
his  original  entry,  or  reproduced  by  him  in  substance,  from  mem- 
ory, after  the  loss  of  the  original,  to  be  read  to  the  jury,  not  as 
evidence  of  the  facts  contained  in  it,  as  in  case  01  an  original 
entry,  but  as  a  statement  in  detail  of  what  the  witness  has  testi- 
fied to  directly.14 


1  Lathrop  v.  Bramhall,  64  N.,Y.  372. 

2  See  p.  228  of  this  vol. 

3  Flood  v.  Mitchell,  68  N.  Y.  507  ;  Moore  v.  Meacham,  10  N.  Y.  207. 

4  The  use  of  memoranda  to  refresh  memory  is  confined  to  cases  where  the  wit- 
ness'memory  is  at  fault  without  it.      Young  v.  Catlett,  6  Duer,  437;  Sackelt  v. 
Spencer,  29  Barb.  180.     He  should  be  allowed  time.     Key  v.  Lynn,  4  Litt.  338,  340. 

5  Any  memorandum  (Guy  v.  Mead,  22  N.  Y.  462),  even  such  as  his  marks  on  a 
board.     See  Marcly  v.  Shults,  29  N.  Y.  851,  where,  however,  the  memorandum 
offered  was  excluded  on  other  grounds. 

6  Filkins  v.  Baker,  6  Lans.  518;  or  from  his  memoranda,  and  subject  to  his  im- 
mediate supervision;  Krom  v.  Levy,  1  Hun,  173. 

I  Steph.  Dig.  Ev.  Art.  136.  •  8  Id, 

9  Lewis  v.  Ingersoll,  3  Abb.  Ct.  App.  Dec.  55 ;  Van  Buren  v.  Cockburn,  14  Barb. 
181. 

10  Cole  v.  Jessup,  10  N.  Y.  96 ;    9  Barb.   395,  8.  c.  10  How.  Pr.  515;   Filkins  v. 
Baker,  6  Lans.  518. 

II  Halsey  v.  Sinsebagh,  15  N.  Y.  485. 

15  Marcly  v,  Shults,  29  N.  Y.  348;  and  see  49  N.  Y.  316. 

13  Id.    Id. 

14  McCormick  v.  Pennsylvania  Central  R.  R.  Co.  49  N.  Y.  316. 


ACCOUNTS  AND  MEMORANDA.  321 

Hence  in  an  action  for  goods  sold,  a  witness  who  testifies  that 
he  made  correct  original  entries  of  the  transaction,  and  he  has  for- 
gotten the  transaction,  may  be  shown  his  original  entries,  and  read 
them  as  evidence.1  The  correctness  of  the  entries  may  be  shown 
either  by  his  testimony  of  his  own  knowledge,  or  his  testimony 
that  he  entered  correctly  what  others  told  him,  if  such  others 
are  produced  and  testify  that  they  gave  him,  correctly,  facts 
within  their  own  knowledge.3 

2.  Original  memoranda  made  contemporaneously  with  the  fact,8 
— usually  such  as  accounts,  bills  of  parcels,  and  the  like, — although 
not  shown  to  have  been  made  by  the  witness,4  and  copies  or  ab- 
stracts made  by  him  from  his  inspection  of  such  memoranda,5  may 
be  referred  to  by  him  while  on  the  stand,  if  his  memory,  refreshed 
by  them,  enables  him  to  testify  from  recollection  of  the  original 
facts,  independent  of  his  confidence  in  the  accuracy  of  the  mem- 
oranda.6   He  is  not  in  such  case  to  read  from  the  memorandum, 
nor  does  the  memorandum  become  admissible  in  corroboration.7 

3.  In  cases  requiring  many  details  of  date,  quantity,  &c.,  it  is 
common  practice  to  allow  a  witness  to  consult,  but  not  to  read 
from,  memoranda  made  by  him  of  facts  within  his  own  knowl- 
edge, to  which  he  cannot  speak  in  sufficient  detail  without  such 
aid,  although  the  memoranda  were  made  in  preparation  ftfr  trial. 
But  such  memoranda,  if  not  within  the  preceding  rules,  are  not 
admissible  in  evidence,8  unless  they  are  of  a  character — such  as 
maps,  diagrams  or  tabular  statements — reasonably  necessary  to 
render  the  testimony  intelligible,  and  are  proven  to  be  correct. 

Any  thing  referred  to  by  a  witness  to  refresh  memory  must, 
if  required,  be  shown  to  the  adverse  party ;  and  he  may  cross- 
examine  the  witness  thereupon,9  but  is  not  bound  to  put  the  paper 
in  evidence.10 

'Philbin  v.  Patrick,  3  Abb.  Ct.  App.  Dec.  605 ;  S,  P.  9  Hun,  347,  and  cases  cited. 
It  is  not  necessary  that  the  memorandum  be  a  formal  account.  Any  record,  however 
rude,  made  to  mark  the  event  or  as  an  aid  to  memory,  may  serve.  See  Marcly  v. 
Shults  (above). 

4  Payne  v.  Hodge,  7  Hun,  612.  It  has  been  recently  held  in  Shear  v.  Van  Dyke, 
10  Hun,  528,  in  extension  of  this  rule,  that  a  witness  having  testified  that  a  quantity, 
which  he  had  now  forgotten,  lie  had,  at  the  time  of  delivery,  reported  correctly  to 
another,  the  other  might  be  called  and  testify  what  the  quantity  was  thus  reported; 
that  is  to  say,  a  human  memory  may  serve  as  a  book  of  original  entries,  $•<>,  where 
a  temporary  memorandum,  made  by  a  witness  who  had  since  forgotten  what  was 
written,  had  been  destroyed  by  another  witness  who  in  the  course  of  duty  transcribed 
it  in  more  permanent  form,  the  latter  was  permitted  to  produce  his  copy  and  testify 
to  what  he  transcribed.  Adams  v.  People,  8  Hun,  654. 

3  This  contemporaneous  character  is  not  always  strictly  to  be  required. 

4  Sturm  v.  Atlantic  Ins.  Co.  38  Super.  Ct.  (J.  <fe  S.)  286,  296,  318;  Huffv.  Ben- 
nett, 6  N.  Y.  337. 

•  Rowland  v.  Sheriff  Willetts,  5   Sandf.  221 ;  and  see  Sturm  v.  Atlantic  Ins.  Co. 
(above). 

•  Wilde  v.  Hexter,  50  Barb.  448. 

7  Russell  v.  Hudson  River  R.  R.  Co.  17  N.  Y.  134.     Compare  note  14,  above. 

•  Stuart  v.  Binuse,  7  Bosw.  195. 

»  Peck  v.  Lake,  3  Lans.  136;  Steph,  Dig.  Art.  137;  Tibbetts  v.  Stornberg,  66 
Barb.  201.  10  Peck  v.  Lake  (above). 


322  ACTIONS  FOR  PRICE  OF  GOODS,  «fco. 

38.  Memoranda  made  by  a  third  person  in  the  usual  course 
of  business.] — An  entry  or  memorandum,  whether  in  a  book  or  in 
any  other  form,1  made  in  the  usual  course  of  business,  and  at  or 
about  the  time  of  the  transaction,  by  a  person  not  a  party  to  the 
action,  who  is  shown  to  have  had  means  of  personal  knowledge3 
of  the  fact  recorded,  is  competent  evidence  of  such  fact ; 

1 .  If  the  person  who  made  it  is  produced,  and  verifies  the 
handwriting  as  his  own,8  and  testifies  that  it  was  so  made,  and 
correct  when  made,  although  he  may  have  no  present  recollection 
whatever  of  the  transaction ; 4  or, 

2.  If  the  person  who  made  it  is  dead,  and  his  signature  or  hand- 
writing is  proved,  and  he  does  not  appear  to  have  had  any  interest 
to  falsify.4      If  living,  though  he  be  without  the  jurisdiction,  he 
must  be  produced.5 

It  is  not  necessary  that  the  person  should  have  been  under  an 
absolute  duty  to  make  the  entiy;  it  is  enough  if  it  was  the 
natural  concomitant  of  the  transaction  to  which  it  relates,  and 
usually  accompanies  it.6 

39.  Shop  books  and  other  Accounts  of  a  party  offered  in  his 
own  favor :] — The  statutes  allowing  parties  to  testify  have  revolu- 
tionized the  practice,  by  making  the  party  the  witness  and  allow- 
ing him  commonly  to  use  his  book  as  a  memorandum  to  refresh 
his  memory;7  but  the  rule  admitting  his  account  as  primary 
evidence,  with  certain  preliminary  proof,  is  still  in  force ; 8  and  it 


1  Livingston v.  Arnoux,  56N.Y.  518.  Notacopy.  James  v.Wharton,  3 McLean, 492. 

a  The  entries  are  not  admissible  under  this  rule  if  made  on  information  received 
from  a  third  person,  although  communicated  by  him  in  the  course  of  duty ;  Thomas 
v.  Price,  30  Md.  483;  White  v.  Wilkinson,  13  La  Ann.  359;  even  though  the  person 
who  made  the  entry  testify  that  his  informant  (not  shown  to  be  deceased)  saw  and 
corrected  it.  In  such  case  the  latter  should  be  produced.  See  Gould  v.  Conway.  59 
Barb.  355;  Chenango  Bridge  Co.  v.  Lewis,  63  Id.  111.  The  informant  not  hav- 
ing adopted  the  entry  as  his  own,  the  mere  fact  that  lie  is  dead  does  not  admit  the 
entry  made  by  the  witness  on  his  information.  Brain  v.  Price,  11  Mees  <fc  W.  773. 
As  to  the  effect  of  ignorance  of  some  of  the  entries,  see  Burke  v.  Wolfe,  88  Super. 
Ct.  (J.  &  S.)  263. 

3  Gilchrist  v.  Brooklyn  Grocers'  Asso.  59  N.  T.  499. 

4  Price  v.  Torrington,  Salk,  285,  s.  c.  1  Smith's  L.  C.  390  ;  Merrill  v.  Ithaca,  Ac.  R. 
R.  Co.  16  Wend.  586.     The  rule  applies,  although  the  entries  were  only  of  each  order 
in  gross,  without  stating  the  items.     Gilbert  v.  Sage,  57  N.  Y.  639,  affi'g  5  Lans.  287. 

5  Ocean  Nat.  Bank  v.  Carll,  55  N.  Y.,  440 ;  again,  9  Hun,  239,  and  cases  cited. 
In  some  States  permanent  insanity,  in  others  permanent  absence  from  the   State,  is 
equivalent  to  death  for  this  purpose.    For  instances,  see  1  Smith's  L.  Cas.  139 ;  note 
to  Price  v.  Torrington 

8  Fisher  v.  Mayor,  <fec.  of  N.  Y.  67  N.  Y.  77;  Morrow  v.  Ostrander,  13  Hun,  219. 
It  haa  lately  been  held  that  in  a  conflict  of  evidence  as  to  whether  the  witness  per- 
formed an  alleged  act,  his  book,  testified  to  by  him  to  be  a  complete  record  of  all  his 
transactions  of  the  nature  of  that  alleged,  is  admissible,  for  the  purpose  of  inferring 
from  the  absence  of  an  entry  of  the  alleged  transaction,  that  it  did  not  occur.  Mor- 
row v.  Ostrander,  13  Hun,  219. 

Alterations,  <fec.  seriously  impair  the  credit  of  the  entry,  Gilchrist  v.  Brooklyn 
Grocers'  Asso.  59  N.  Y.  499,  but  do  not  necessarily  render  it  incompetent.  Adams  v. 
Coulliard.  102  Mass.  167. 

7  Henry  v.  Martin,  1  Weekly  Cas.  (Pa.)  277 ;  Barnet  v.  Steinbnch,  Id.  335. 

f  Stroud  v.  Tilton,  4  Abb.  Ct.  App.  Dec.  324 ;  Burke  v.  Wolfe,  38  Super.  Ct 
(J.  A  S.) 


ACCOUNTS  AND  MEMORANDA.  323 

is  convenient  to  rely  upon  it  in  some  cases  where  the  right  to 
read  the  account,  as  having  refreshed  the  witness's  memory,  may 
be  doubtful.1  It  is  not  essential  under  this  rule  to  produce  the 
party  himself  as  a  witness,  even  since  the  disqualification  of 
parties  has  been  removed.2 

The  general  rule  is  that  in  actions  for  goods  sold  (and  some 
others),  not  founded  on  special  contract,3  the  party's  books  of 
account  are  admissible  in  evidence  for  the  consideration  of  the 
jury,  in  his  own  favor,  upon  due  preliminary  proof  ;  1.  That  they 
are  his  books  of  account  kept  in  the  regular  course  of  business ; 

2.  That  there  was  a   course  of  dealing   between  the  parties; 

3.  That  some  article  or  service  charged  was  actually  furnished ; 

4.  That  the  party  had  no  clerk  or  book-keeper  ;  5.  That  he  kept 
fair  and  honest  accounts.4 

In  more  detail  observe :  1.  The  record  must  be  shown  to  have 
been  the  party's  account,  kept  in  the  regular  course  of  business. 
Formal  book-keeping  is  not  important.  The  record  derives  what- 
ever respect  it  receives,  from  the  fact  that  it  it  is  the  personal 
record  of  the  party,  kept  according  to  his  usage  and  degree  of 
intelligence,  for  the  purpose  of  preserving  the  memory  of  moneys 
due  him  for  goods  or  labor.5  The  account  is  not  to  be  excluded 
because  kept  in  ledger  form,  so  that  the  charges  against  defendant 
are  on  a  separate  page  from  those  against  others ; 6  although  entries 
scattered  through  an  account  in  the  journal  or  day-book  form 
are  more  cogent  evidence.  But  if  shown  not  to  be  the  book  of 
original  entries,  it  is  not  competent  without  producing  or  account- 
ing for  those  entries.7  If  it  appear  either  from  the  books  them- 


1  The  value  and  importance  of  the  party's  account  are  asserted  in  Butler  v.  Corn- 
wall Iron  Co.  22  Com.  360,  and  denied  in  Larue  v.  Rowland,  7  Barb.  107,  and  Tomlin- 
son  v.  Borst,  30  Id.  46. 

*  Tomlinson  v.  Borst,  30  N.  Y.  42.     This  is  the  New  York  Rule.     In  those  juris- 
dictions where  the  suppletory  oath  of  the  party  himself  is  required,  the  general  rule 
is,  that  if  part  of  the  transaction  was  done  by  one  partner,  and  part  by  another,  as 
where  one  delivered  the  goods  and  another  made  the  entries,  ench  may  testify  to  his 
own  share  in  the  transaction.  •  If  the  person  who  kept  the  books  is  dead,  the  supple- 
tory oath  may  be  made  by  the  executor  or  administrator  speaking  to  the  best  of  his 
knowledge  and  belief;  and  testifying  also  that  the  books  came  to  his  hands  as  the 
genuine  and  only  account  books  of  the  deceased ;  but  in  such  case,  there  must  also 
be  proof  of  the  handwriting  of  the  deceased.     If  the  person  who  kept  the  books  is 
insane,  the  question  of  insanity  being  one  for  the  judge,  the  books  are  admissible  on 
the  like  suppletory  oath  of  the  committee  or  guardian,  with  proof  also  of  handwriting. 

8  Merrill  v.  Ithaca,  &c.  R.  R.  Co.  16  Wend.  686;  Contra,  Cummings  v.  Nichols, 
13  N.  H.  420. 

•  Vosburgh  v.  Thayer,  12  Johns.  461 ;  Stroud  v.  Tilton,  4  Abb.  Ct.  App.  Dec.; 
Knight  v.  Cumington,  6  Hun,  100;  Foster  v.  Coleman,  1  E.  D.  Smith,  86;  and  see 
further,  1  Smith's  L.  Cas.  142;  1  Greenlf.  Ev.  §  118;  1  Whart.  Ev.  §§  678,  tfrc.  700. 

5  Thus  a  notched  stick  kept  for  this  purpose  was  admitted  in  Rowland  v.  Burton, 
2  Harr.  (Del.)  288 ;  scraps  of  paper  in  Smith  v.  Smith,  4  Id.  632,  633;  Taylor  v. 
Tucker,  1  Geo.  231.     But  these  are  exceptional  cases.     See  Hall  v.  Glidden,  89 
Me.  445 ;  Jones  v.  Jones,  21  N.  H.  219.     On  the  other  hand,  a  pocket  memorandum 
book  has  been  excluded.     Richardson  v.  Emery,  23  N.  H.  (3  Fost)  220;  Thayer  v. 
Been,  2  Hill  (So.  Car.) 

6  Faxon  v.  Hollis,  13  Mass.  428.     A  tabular  form  may  be  admissible.     Mathes  T. 
Robinson,  8  Mete.  269.    And  alterations  are  suspicious.    Lloyd  v.  Lloyd,  1  Redf.  398 

1  Vilmar  v.  Schall,  35,  Super.  Ct.  (J.  <fc  S.)  67. 


\ 

324  ACTIONS  FOR  PRICE  OF  GOODS,   Ac. 

selves,  or  extrinsic  evidence,1  that  they  are  a  part  of  a  system  of 
books  involving  others  which  may  be  necessary  to  a  complete 
view  of  the  state  of  accounts,2  the  others  must  be  produced  or 
accounted  for.8  Thus  where  the  ledger  is  relied  on,  a  day-book 
shown  to  have  been  kept  must  be  produced.4  The  charge  should 
be  made  under  an  existing  right  to  charge,  not  merely  in  anticip- 
ation of  such  a  right,5  and  must  appear  to  have  been  made  for 
the  purpose  of  charging,6  for  specific  things,7  the  person  upon 
whose  credit  the  transaction  was  had,8  as  distinguished  from  me- 
moranda of  orders,  or  deliveries,  or  of  things  to  be  subsequently 
done.9 

2.  There  must  have  been  some  course  of  dealing  between  the 
parties.  A  single  sale,  though  of  more  than  one  article,  is  not 
enough  to  constitute  that  relation  between  the  parties  which 
allows  the  books  to  be  admitted.10 

3  Independent  evidence  that  some  article  or  service  charged 
was  furnished,  is  indispensable.11  Proof  of  this  prior  to  the  time 
covered  by  the  account  is  insufficient.12  One  article  delivered  and 
one  item  of  work  done,  as  charged,  satisfy  this  requirement.13 

4.  The  rule  we  are  now  considering  does  not  apply  to  admit  ttie 
books  of  a  party  to  the  suit,  if  they  were  kept  by  a  regular  clerk 
or  book-keeper,14  whose  business  it  was  to  notice  sales  and  enter 
them  in  the  books : 15  such  entries  are  admissible  under  other 
rules  already  stated.  But  the  books  of  daily  entries  made  by 
the  party  himself  are  not  rendered  incompetent  by  the  fact  that 
his  servant,  porter  or  messenger  noted  in  temporary  form  the 
deliveries  made  by  him,  and  reported  them  to  the  party,  who, 
upon  such  information,  or  copying  from  the  temporary  memo- 
randa, made  the  entries  in  question.16  If  there  were  partners,  it  is 

I  Pendleton  v.  "Weed,  17  N.  Y.  72  ;  see  also,  Schenck  v.  Wilson,  2  Hilt.  92. 

3  As  for  instance  where  a  journal  is  produced,  and  it  bears  marks  indicating  that 
the  entries  have  been  posted  into  a  ledger.  Prince  v.  Sweet,  2  Mass.  569.  Compare 
Hervey  v.  Hervey,  15  Me.  357. 

3  And  the  testimony  of  a  witness  that  the  reference  in  the  book  produced,  to 
others  not  produced,  was  a  mistake,  does  not  justify  the  admission  of  the  former 
alone.     Lame  v.  Rowland,  7  Barb.  107. 

4  McCormick  v.  Elston,  16  111.  204. 

6  Heughley  v.  Brewer,  16  Serg.  &  R.  133.  And  should  bear  some  date,  though 
not  necessarily  the  day.  Cumminers  v.  Nichols,  13  N.  H.  420. 

6  Lynch  v.  Petrie,  1  Nott.  &  Me.  130 ;  Walter  v.  Bolman,  8  Watts,  544. 

7  Hughes  v.  Hampton,  2  Const.  745. 

*  Rogers  v.  Old,  6  Serg.  &  R.  454.  Mistake  in  the  person  may  be  explained. 
Schettler  v.  Jones,  20  Wis.  412. 

9  Fairchild  v.  Dennison,  4  Watts  Pa.  258;  Bradley  v.  Goodyear,  1  Day  Ct.  104; 
Terrill  v.  Beecher,  9  Conn.  344. 

10  Corning  v.  Ashley,  4  Den.  354. 

II  Morrill  v.  Whitehead,  4  E.  D.  Smith,  239.      . 

»  Conklin  v.  Stawler,  8  Abb.  Pr.  395,  s.  c.  2  Hilt.  422. 

13  Linnell  v.  Sutherland,  11  Wend.  568. 

'*  Gould  y.  Conway,  59  Barb.  355;  MeriU  v.  Ithaca,  <tc.  R.  R.  Co.  16  Wend.  587.  " 
15  Sickles  v.  Mather,  20  Wend.  72. 

14  Within   reasonable  limit  of  time  for  the  keeping  of  such  accounts,  see  Id. ; 
Stroud  v.  TUton,  4  Abb.  Ct.  App.  Dec.  324  ;  Hauptman  y.  Catlin,  1  E.  D.  Smith,  729. 


ACCOUNTS  AND  MEMORANDA.  325 

enough  to  produce  the  one  who  kept  the  book  ;  but  if  he  is  dead, 
the  book  may  be  admitted  on  the  oath  of  the  other,  if  he  can 
testify  to  his  knowledge  of  the  correctness  of  the  entries.1 

5.  To  show  that  the  party  kept  fair  and  honest  books,  the  tes- 
timony of  one  witness  is  enough,  who  has  dealt  with  the  party, 
and  settled  with  him  by  his  account ; 8  but  he  should  be  not  an 
employee,  but  a  customer,3  or  a  witness  to  settlement  by  custo- 
mers.4 A  settlement  by  the  ledger  is  enough,  though  the  witness 
did  not  see  the  day-books.5  The  evidence  of  fair  and  honest 
accounts  should  be  directed,  in  part  at  least,  to  the  period  covered 
by  the  dealings  in  question.6 

The  competency  of  an  account  under  these  rules  is  a  prelim- 
inary question  for  the  court.7 

An  account  offered  in  evidence  under  these  rules  should  be 
submitted  to  the  judge  for  inspection.8  But  if  the  books  are 
shown  to  have  been  lost  or  destroyed,  secondary  evidence  of 
their  contents  may  be  received.9  Without  laying  a  foundation 
for  secondary  evidence,  a  copy  is  not  admissible.10  Abbrevia- 
tions u  and  symbols 12  may  be  explained  by  parol,  by  testimony 
other  than  that  of  the  party  himself.18  The  party  may  explain  by 
stating  his  usage,  not  by  stating  a  secret  intent.  The  fact  that  the 
book  has  been  mutilated  in  a  part  not  appearing  to  be  material  to 
the  issue,  such  as  having  leaves  torn  out,  etc.,  does  not  make  it 
incompetent,  but  goes  to  its  credit.14  But  apparent  alterations  or 
erasures  in  a  part  material  to  the  cause  must  be  explained  before 
the  account  can  be  admitted.15  Any  fact  showing  the  books  un- 
worthy of  credit  may  be  proved,  such  as  bad  method  of  book- 
keeping ;  or  bad  business  character  of  the  party ;  or  erasures, 


1  Krom  v.  Levy,  1  Hun,  172 ;  and  see  Butler  v.  Cornwall  Iron  Co.  22  Conn.  360. 

3  Beattie  v.  Qua,  15  Barb.  137. 

a  Hamptman  v.  Catlin,  1  E.  D.  Smith,  729. 

4  McAllister  v.  Real,  4  Wend.  483.     Or  any  witness  who  can  prove  actual  accu- 
racy.    WOODRUFF,  J.  in  Foster  v.  Coleman,  1  E.  D.  Smith,  85. 

6  Stroud  v.  Tilton,  4  Abb.  Ct.  App.  Dec. 
8  Foster  v.  Coleman,  1  E.  D.  Smith,  .85. 

I  Larue  v.  Rowland,  7  Barb.  107.     Objections  to  its  admissibility  must  be  made 
on  the  trial,  or  cannot  be  considered  on  appeal.     Peck  v.  Richmond,  2  E.  D.  Smith, 
380 ;  Brahe  v.  Kimball,  5  Sandf.  237.     W  here  the  books  of  a  party  are  read  in  evi- 
dence for  him  without  objection,  they  are  evidence  by  consent,  and  are  to  be  weighed 
by  the  jury.     Brahe  v.  Kimball.  5  Sandf.  237. 

8  It  cannot  be  proved  by  deposition  without  production  in  court.     Churchill  v. 
Fulliam,  8  Iowa,  45. 

9  Holmes  v.  Marden,  12  Pick.  169.     And  see  Hilderbrant  v.  Crawford,  6  Lans. 
600 ;  Prince  v.  Smith,  4  Mass.  455. 

10  Reddington  v.  Gilman,  1  Bosw.  235. 

II  Curnen  v.  Crawford,  4  Serg.  &  R.  3. 

15  Rowland  v.  Burton,  2  Harr.  (Del.)  288. 

13  Cummings  v.  Nichols,  13  N.  II.  420.  His  own  testimony  for  this  purpose  ought 
to  be  received  if  it  goes  to  show  habitual  usage,  not  merely  a  secret  intent  on  the 
particular  case. 

u  Jones  v.  Dekay,  2  Penn.  955  N.  J.  (Ed.  of  1836,  p.  695).  • 

15  Churchman  v.  Smith,  6  Whart.  106. 


326  ACTIONS  FOR  PRICE  OF  GOODS,  &o. 

mutilations,  etc.1  But  not  the  general  bad  moral  character  of  the 
party.8 

An  account  properly  in  evidence  under  this  rule  is  com- 
petent evidence  of  the  facts  of  sale,  of  the  dates,3  of  the  price  or 
value,4  and  of  the  delivery ; 5  but  not  evidence  of  any  other  mat- 
ter than  the  issue  of  debt  and  credit  between  the  parties.6 

Pass  looks,  kept  by  one  party  and  written  up  by  the  other, 
are  competent,  irrespective  of  whether  the  entries  were  original 
memoranda,  or  copies.7 

40.  When  using  part  of  an  account  admits  the  rest.~\ — If  a 
party  uses  books  of  account  against  his  adversary,  he  makes  them 
evidence  for  the  adversary  on  the  same  subject.     They  are  like 
any  declaration  or  admission  by  writing  or  orally  ;  if  part  is  used, 
the  whole  qualifying  the  same  matter  is  admissible.     He  cannot 
offer  his  books  in  evidence,  to  establish  some  things,  under  the 
restriction  that  they  should  not  be  received  to  prove  others,  to 
show  which  they  were  equally  competent.8    After  they  have 
been  introduced  in  evidence,  -they  are  available  as  the  property  of 
both  parties,  as  evidence,  and  he  who  adduced  them  cannot  with- 
draw them  from  the  consideration  of  the  .jury,  without  consent 
of  the  adverse  party.9    Hence  when  one  party  has  used  the  ac- 
count to  establish  credits  in  his  favor,  it  is  competent  for  the 
other  plaintiff  to  read  from  the  same  books,  entries,  although 
they  were  made  by  himself,  which  show  that  those  credits  have 
been  exhausted  by  counter-charges  of  debit,  made  at  about  the 
same  time  and  afterward.10 

41.  Memoranda  as  part  of  the  res  gestse.] — In  connection  with 
the  last  few  paragraphs  reference  should  be  had  to  the  rule  ad- 
mitting entries  and  declarations  as  part  of  the  res  gestce  of  an  act 
already  properly  in  evidence,  a  rule  which  has  been  sufficiently 
illustrated  elsewhere.11 

42.  Admissions  and  promises  to  pay.~\ — In  proving  oral  admis- 
sions, etc ,  the  witness  must  state  the  facts,  and  the  conversation 
in  substance  at  least;  and  not  his  own  conclusion  derived  there- 
from.13 An  admission  or  declaration  made  by  a  party  in  writing 13 


I  Lame  v.  Rowland,  7  Barb.  107. 
*  Tomlinson  v.  Bort,  30  Barb.  42. 
8  Sickles  v.  Mather,  20  Wend.  72. 

4  Morrill  v.  Whitehead,  4  E.  D.  Smith,  239. 
6  See  also  paragraphs  4  and  28. 

6  Batchelder  v.  Sanborn,  22  N.  H.  (2  Fost.)  325,  rev's  cases. 

7  Burke  v.  Wolfe,  38  Super,  a.  (J.  <fe  S.)  263. 

8  I'endleton  v.  Weed,  17  N.  Y.  72;  Winans  v.  Sherman,  3  H31,  74.     But  he  may 
contradict  items.     \Valden  v.  Sherburne,  15  Johns.  409. 

9  Clinton  v.  Rowland,  24  Barb.  634,  and  cases  cited. 

10  Dewey  v.  Hotchkiss,  30  N.  Y.  497.     Detached  items  in  accounts,  however,  are 
not  necessarily  so  connected  that  the  one  drags  in  the  other.   1  Whart.  Ev.  591,  §  620. 
"Pages  170,  245,  2^,  264,  269,  275;  and  see  Arms  v.  Middleton,  23 Barb.  571. 

II  Parsons  v.  Disbrow,  4  E.  D.  Smith,  547. 

13  Even  though  dictated  to  plaintiffs  agent,  and  unsigned  by  defendant.     Wollen- 
weber  v.  Ketterlinus,  17  Penn.  St.  389. 


SALE  BY  AUCTION.  327 

is  competent  against  him,  without  calling  him.  If  a  memorandum 
of  defendant's  admission  was  made  by  plaintiff  or  his  agent,  it 
need  not  be  produced,  unless  it  was  communicated  to  defendant.1 
Upon  the  question,  whether  a  transaction  was  a  sale  or  not,  it  is 
competent  to  prove  an  entry  made  by  the  plaintiff  in  his  books, 
of  the  transaction  as  a  sale,  if  accompanied  by  proof  that  the 
entry  was  subsequently  read  to  the  defendant,  and  he  admitted 
its  correctness.2  The  existence,  and  defendant's  knowledge  of  the 
demand  being  shown  by  other  evidence,  defendant's  acknowl- 
edgment of  an  indebtedness  is  presumed  to  have  referred  to  the 
demand  proven,  in  the  absence  of  proof  that  other  demands  ex- 
isted, to  which  the  acknowledgment  might  apply.3  A  promise 
"to  settle,"  if  made  in  reference  to  a  demand  of  a  liquidated 
amount,  is  equivalent  to  a  promise  to  pay.4  On  a  promise  to  pay 
in.  a  contingency,  though  indefinite — such  as  to  pay  when  able 
— plaintiff  should  show  that  the  contingency  has  occurred.5  • 

The  admissions  and  declarations  of  defendant's  agent  are 
competent  only  when  shown  to  have  been  made  by  him  at  the 
time  of  making  the  agreement  about  which  he  was  employed,  or 
while  acting  within  the  scope  of  his  authority.6  Upon  proof  that 
defendant  referred  plaintiff  or  his  agent  to  a  third  person  for  infor- 
mation,7 the  admissions  and  declarations  of  the  latter,  ms.de  pur- 
suant to  the  reference  to  him,  are  competent  against  defendant.8 

An  admission  of  a  distinct  fact,  such  as  the  correctness  of  an 
account  presented  to  the  party,  may  be  proved  against  him, 
though  made  during  a  negotiation  for  settlement,  and  coupled 
with  an  offer  to  allow  the  account  on  a  condition ; 9  and  after  the 
correctness  of  the  items  has  thus  been  proved,  the  account,  and 
entries  and  vouchers  concerning  the  items,  are  admissible.10 

43.  Auction  sales J] — An  auctioneer  suing  in  his  own  name 
need  not  prove  that  he  has  a  special  property  or  interest,  for  that 
follows  from  his  position  as  an  auctioneer.11 

Under  the  statute  of  frauds,  as  applicable  to  auctions,12  one 
who  has  to  prove  compliance  with  the  statute  must  produce  or 
account  for  the  memorandum,13  and  show  that  it  was  made  by  the 


1  Parsons  v.  Disbrow,  1  E.  D.  Smith,  547. 

*  Tanner  v.  Parshall,  4  Abb.  Ct.  App.  Dec.  356,  s.  c.  5  Abb.  Pr.N.  S.  373;  and  35 
How.  Pr.  472. 

3  McNamee  v.  Tenny,  41  Barb.  495.   Sugar  v.  Davis,  13  Ga.  462.     The  sufficiency 
of  this  evidence,  txlone,  is  questionable. 

4  Barker  v.  Seaman,  61  N.  Y.  648. 
4  2  Abb.  N.  Y.  Di<jf.  2d  ed.  209. 

6  Vail  v.  Judson,  4  E.  D.  Smith,  165. 
1  Allen  v.  Killin^er,  8  Wall.  480. 

8  Folsom  v.  Batchelder,  2  Post.  (8;  H.)  47. 

9  Bartlett  v.  Tarbox,  1  Abb.  Ct.  App.  Dec.  120. 

10  Id. 

11  Minturn  v.  Main,  7  N.  Y.  220. 

18  2  N.  Y.  R.  S.  136,  §  4  (3  R.  S.  6th  ed.  143). 
13  Davis  v.  Robertson,  1  Mill  (So.  Car.)  71. 


328  ACTIONS  FOR  PRICE  OF  GOODS,  Ac. 

auctioneer  or  his  clerk  at  the  time  of  the  sale,1  that  is  to  say,  before 
other  business  intervened  after  the  auction,  so  that  nothing  was 
left  to  memory.3  In  case  of  a  continued  sale  of  many  parcels,  it 
is  sufficient  to  prove  that  the  memorandum  was  kept  complete 
as  to  everything  but  subscription,  as  the  sale  progressed  from 
day  to  day,  and  was  subscribed  (where  necessary)  immediately 
upon  the  close  of  the  sale.8 

The  memorandum  must  show  everything  necessary  to  estab- 
lish the  existence  of  the  contract  without  having  recourse  to  ex- 
trinsic evidence.4  For  the  purpose  of  making  out  the  facts  re- 
quired by  the  statute  of  frauds,  the  printed  terms  of  sale  or  other 
separate  papers  cannot  be  used,  unless  referred  to  in  the  memo- 
randum which  was  subscribed,6  or  unless  physically  annexed  at 
the  time  of  sale.6  A  coincidence  in  the  contents  of  separate 
papers  is  not  enough  to  connect  them ; 7  nor  is  evidence  that  the 
papers  were  actually  intended  by  the  parties  to  be  read  together.8 
A  mistake  in  the  given  name  of  the  buyer  may  be  corrected  by 
parol,  if,  rejecting  the  erroneous  words  or  letters,  enough  re- 
mains to  identify  the  person  by,  with  the  aid  of  extrinsic  evi- 
dence.9 And  the  identity  of  the  property  may  be  ascertained  if 
the  memorandum  contains  the  means  of  identification  by  aid  of 
extrinsic  evidence.10 

The  written  or  printed  terms  of  sale  cannot  be  varied  by 
evidence  of  the  parol  declarations  of  the  auctioneer.11  The  quantity 
or  amount  of  property  offered  in  a  lot  may  be  proved  by  parol  ;** 
and  so  may  the  fact  that  misdescriptions  in  the  catalogue  were 
publicly  corrected.13  But  the  rules  excluding  oral  evidence  to  ex- 
plain or  vary  the  contract,  which  have  already  been  stated  in  the 
case  of  other  modes  of  contract  under  the  statute  of  frauds,  apply 
to  sales  by  auction. 

44.  Sales  through  a  "broker '.] — The  broker's  authority  must  be 
shown,14  if  his  entry  or  memorandum  is  relied  on  as  the  evidence 
of  the  sale ;  but  it  need  not  be  in  writing.13  If  it  appears  that  he 


J  Frost  v.  Hill,  3  "Wend.  386  ;  Price  v.  Durin,  56  Barb.  647 ;  Hicks  v.  "Whitmore, 
12  Wend.  648;  Walker  v.  Herring,  21  Gratt.  679,  s.  c.  8  Am.  R.  616. 
5  Hicks  v.  Whitmore  (above);  Goelet  v.  Cowdrey,  1  Duer,  140. 
8  Price  V.  Durin,  56  Earb.  647. 
4  First  Bapt.  Ch.  v.  Bigelow,  16  Wend.  31,  and  cases  cited. 

*  Norris  v.  Blair,  39  Ind.  90,  s.  c.  10  Am.  R.  135. 

•  Tallmnn  v.  Franklin,  14  N.  Y.  588,  rev'g  3  Duer,  395. 

7  So  held  of  a  mere  coincidence  ot  d.ites,  between  the  catalogue  containing  terms 
of  sale  of  specified  lots  for  a  day  narnerl,  and  a  memorandum  of  sale  of  a  lot  by  the 
catalogue  number.     Peirce  v.  Corf,  L.  R.  9  Q.  B.  210,  s.  c.  8  Moak  Eng.  316 ;   and 
see  First  Ch.  v.  B'gelow,  16  Wend.  82. 

8  Johnson  v.  Buck,  85  N.  J.  838,  s.  c.  10  Am.  R.  243,  and  cases  cited. 

9  Pinckney  v.  Hagadorn,  1  Duer,  1*7. 

10  Tellman  v.  Franklin,  14  N.  Y.  684,  rev'g  3  Duer,  395. 

11  Shelton  v.  Livius,  2  Ci-ompt.   &  J.  411;    Wright  v.  Deklyne,  Pet.  C.  C.  199 
Compare  Hadley  v.  Clinton,  13  Ohio  St.  502. 

12  Wright  v.  Deklyne  (above). 

18  Eden  v.  Blake,  13  M.  <fe  W.  614. 

14  Moses  v.  Banker,  7  Uobt.  441. 

16  Merritt  v.  Clason,  12  Johns.  102,  affi'd  in  14  Johns.  484. 


SALE  BY  BROKER.  329 

was  employed  by  one  party,  the  question  whether  he  was  also 
agent  for  the  other,  is  usually  one  of  fact ;  and  the  presumption 
that  he  was,  if  any  such  arises  from  his  character  of  broker,  is 
repelled  by  evidence  that  the  other  party  had  another  agent  or 
broker  in  the  transaction.1  Although  his  original  authority  was 
only  from  one,  his  authority  to  bind  the  other  may  be  shown  by 
the  ratification  by  the  latter  of  his  act.2 

In  respect  to  the  mode  of  proving  the  contract,  especially 
where  the  statute  of  frauds  requires  a  memorandum,  the  follow- 
ing rules  are  guides : 

1.  The  broker's  entry  in  his  book,  subscribed  by  him,8  satisfies 
the  statute.     If  authorized,  it  constitutes  the  contract  between  the 
parties,  and  is  binding  on  both.4    And  it  need  not  be  shown  that  he 
communicated  it  to  the  defendant,5  if  it  be  shown  that  he  was  au- 
thorized to  make  it  by  defendant.6    And  if  communicated,  a  vari- 
ance in  the  terms  as  communicated,  does  not  impair  its  validity.7 

2.  If  the  broker  subscribed'  such  an  entry,  bought  and  sold 
notes,  delivered  by  him,  do  not  constitute  the  contract.8 

3.  The  bought  and  sold  notes,  when  they  correspond  with 
each  other  and  state  all  the  terms  of  the  contract,  are  complete 
and  sufficient  evidence  to  satisfy  the. statute,  even  though  there 
be  no  entry  in  the  broker's  book,  or,  what  is  equivalent,  only  an 
unsigned  entry.9 

4.  Though  the  broker  made  such  an  entry,  if  he  did  not  subscribe 
it,  and  did  not  deliver  a  note,  the  terms  of  the  contract  may  be 
proved  by  parol  if  the  statute  of  frauds  can  be  otherwise  satisfied.10 

5.  Either  a  bought  or  sold  note  alone  may  satisfy  the  statute  ; n 
and  though  both  are  shown  to  have  been  delivered,  the  plaintiff  need 
only  produce  the  one  delivered  to  him,  unless  a  variance  appears.12 


I  Dilworth  v.  Bostwick,  1  Sweeney,  688,  Monell,  J. 

8  Hankins  v.  Baker,  46  N.  Y.  666.  It  may  be  proved  by  evidence  that  he  sent  a 
note  of  the  bargain  to  the  buyer,  who  kept  it  without  objection  until  called  on  to 
fulfill  the  contract,  when  he  objected  merely  on  the  ground  that  the  broker  did  not 
sign  it,  Thompson  v.  Gnrdiner,  1  C.  P.  Div.  777,  s.  c.  18  Moak's  Eng.  328  ;  or  sent  a 
warehouse  order,  which  he  retained,  and  upon  which  he  authorized  an,  effort  to  sell 
the  goods.  Hankins  v.  Baker  (above). 

3  Davis  v.  Shields,  26  Wend.  341. 

4  Sivewright  v.  Archibald,  17  Q.  B.  115,  s.  c.  20  L.  J.  N.  S.  Q.  B.  529 ;  Benj.  on  S. 
§  290,  etc.  (Contra,  1  Tayl.  Ev.  416.    Stephen  Pays  tlia  question  is  unsettled.    Steph. 
Dig.  Ev.  Art.  64,  n.)    Unless  apparently  made  only  for  another  purpose.   Gallagher 
v.  Waring,  9  Wend.  28.     A  memorandum  made,  for  his  own  convenience  of  charges, 
by  a  broker  who  merely  brought  together  the  parties  who  contracted,  is  not  the  con- 
tract.   Aguirre  v.  Allen,  10  Barb.  74,  affi'd,  on  other  points,  in  7  N.  Y.  (3  Seld.)  548. 

6  Mcrritt  v.  Clason,  12  Johns.  102;  14  Id.  484;  Sivewright  v.  Archibald  (above). 

6  See  Davis  v.  Shields,  26  Wend.  341,  350. 

7  Sivewright  v.  Archibald  (above). 

8  Same  authorities  and  same  conflict. 
•  Id. 

10  Waring  v.  Mason,  18  Wend.  425. 

II  This  conclusion  seems  supported  by  the  doctrine  of  Butler  v.  Thompson,  92 
U.  S.  (1  Otto),  416;  and  Parton  v.  Crofts,  16  C.  B.  N.  S.  11  (recognized  in  42  N.  Y. 
620);  Hankins  v.  Baker,  46  N.  Y.  666. 

»  Durrell  v.  Evaus,  1  U.  &  C.  174,  s.  c.  31  L.  J.  Ex.  837 ;  1  Tayl.  Ev.  416. 


330  ACTIONS  FOR  PRICE  OF  GOODS,  Ac. 

6.  "Where  one  note  only  is  offered  in  evidence,  the  party 
sought  to  be  charged  has  a  right  to  offer  the  other  note,  or  the 
subscribed  entry  in  the  book,  to  prove  a  variance.1 

7.  If  the  bought  and  sold  notes  correspond  with  each  other, 
but  vary  from  the  subscribed  entry  in  the  book,  the  jury  may 
find  that  the  acceptance  by  the  parties  of  the  bought  and  sold 
notes  constituted  a  new  contract  modifying  that  which  was  en- 
tered in  the  book. 

8.  If  the  bought  and  sold  notes  differ  with  each  other  in  sub- 
stance,2 and  there  is  no  subscribed  entry  showing  the  terms  of  the 
contract  in  the  broker's  book,  the  papers  do  not  satisfy  the  re- 
quirement of  the  statute.8 

The  understanding  of  a  mere  mutual  agent,  not  a  broker,  as  to 
the  terms  of  sale,  unless  communicated  by  him  to  one  party,  and 
acceded  to,  or  not  objected  to,  by  the  other,  is  not  evidence  of  a 
contract  which  will  bind  both.4 

If  the  broker  was  agent  for  only  one  of  the  parties,  parol  evi- 
dence is  competent  to  show  that  the  contract  he  actually  made 
with  the  other  was  not  truly  stated  in  the  memorandum.5  If  he 
was  agent  for  both  parties  such  parol  evidence  is  not  competent ; 6 
but  it  may  be  shown  by  parol  that  the  terms  stated  in  the  memo- 
randum exceeded  his  authority.7  If  all  the  terms  appear  on  the 
notes,  the  question  whether  the  transaction  was  a  sale  or  for 
some  other  purpose,  may  be  determined  by  the  aid  of  a  separate 
writing  though  addressed  to  a  third  person,  if  subscribed  by  the 
party  to  be  charged.8 

45.  Demand?] — The  fact  that  the  contract  fixed  a  time  and 
place  for  payment,  does  not  require  plaintiff  to  prove  demand  be- 
fore suit ; 10  but  if  the  contract  is  so  expressed  as  to  make  demand 
a  condition  precedent,11  or  the  price  was  payable  in  specific  arti- 
cles, to  be  furnished  by  the  debtor,  a  demand  and  refusal  must 
be  shown,12  unless  the  contract  is  so  expressed  as  to  put  him  in 
default  without  them.     And  where  the  defendant  is  entitled  to 
a  reasonable  time  to  comply  with  a  demand,  the  demand  must  be 
made  a  reasonable  time  before  suing.13 

46.  Interest.'] — Unless  a  credit  is  proven,  a  sale  is  presumed  to 


1  Sivewright  v.  Archibald  (above). 

1  Variances  may  be  explained  by  parol  to  be  not  material.     Bold  v.  Rayner,  1 
Mees.  &  W.  343 ;  Kempson  v.  Boyle,  3  Hurlst.  &  C.  763. 

*  Sivewright  v.  Archibald  (above). 

4  Fiedler  v.  Tucker   13  How.  Pr.  9,  Mitchell,  J. 
6  See  Davia  v.  Shields,  26  Wend.  341. 

•  Coddington  v.  Goddard,  16  Gray,  436. 
'  Id. ;  Peltier  v.  Collins,  8  Wend.  459. 

8  Peabody  v.  Speyers,  56  N.  Y.  230. 

8  See  also  pp.  265  and  281  of  this  vol. 

10  Locklin  v.  Moore,  57  N.  Y.  360,  affi'g  6  Lans.  307. 

"Id. 

»  Smith  v.  Tiffany,  36  Barb.  23 ;  Hunt  v.  Westervelt,  4  E.  D.  Smith,  226. 

13  Boutwell  v.  O'Keefe,  82  Barb.  434,  439. 


NON-PAYMENT.  333 

have  been  for  cash,1  and  if  it  be  shown  that  the  price  was  fixed, 
either  by  the  contract 2  or  by  the  buyer  promising,  on  receiving 
information  of  the  amount,  that  lie  would  pay,3  interest  is  recover- 
able from  the  time  of  demand. 

A  draft  drawn  by  plaintiff  upon  defendant  for  the  price, 
which  he  refused  to  accept,  is  equivalent  to  a  demand  of  pay- 
ment for  this  purpose.4 

Where  there  is  a  general  usage  in  the  particular  trade  or 
branch  of  business,  or  among  merchants  of  the  place,  to  charge 
and  allow  interest,  parties  having  knowledge  o±  the  usage  are 
presumed  to  contract  in  reference  to  it.5  Evidence  that  the  buyer 
was  one  of  the  seller's  customers,  and  that  plaintiff  always 
charged  interest  after  a  certain  time,  is  prima  facie  enough.6 

47.  Non-payment.'} — Unless  the  contract  is  special,  plaintiff 
need  not  allege 7  or  prove 8  non-payment ;  but  the  sale  and  deliv- 
ery being  proved  or  admitted,  the  burden  is  on  defendant  of 
proving  payment  if  he  rely  on  that  fact.9  Negotiable  paper  of 
the  buyer,10  or  of  his  agent,11  or  of  either  of  several  joint  buyers,12 
received  by  the  seller,  for  price,  whether  at  the  time  of  the  sale 
or  at  any  other  time,  or  negotiable  paper  of  any  other  person w 
received  by  the  seller  after  the  sale,  at  a  time  when  the  price  may 
be  regarded  as  a  pre-existing  debt,14  is  presumed  not  to  have  been 
received  in  payment.  Negotiable  paper  of  another  than  the 
buyer  or  his  agent,  received  at  the  time 15  of  sale  and  delivery,  it 
is  presumed  was  received  in  payment.16 

These  presumptions  may  be  rebutted  by  evidence  of  an  ex- 
press agreement  to  the  contrary,17  even  though  a  receipt  was 
passed  acknowledging  that  the  paper  was  given  in  payment.18 


1  Pollock  v.  Ehle,  2  E.  D.  Smith,  541. 

2  Beers  v.  Reynolds,  11  N.  Y.  97,  affi'g  12  Barb.  288. 

8  Pollock  v.  Ehle  (above). 

4  Cooper  v.  Coatee,  21  Wall.  111. 

6  Esterly  v.  Cole,  3  N.  Y.  602. 

'  Reab  v.  McAllister,  8  "VVend.  109,  affi'g,  4  Id.  483.  The  admission  of  evidence 
of  the  usage  does  not  become  improper,  because  the  party  fails  subsequently  to  fur- 
nish the  necessary  proof  that  the  other  had  knowledge  of  the  usage.  Esterly  v.  Cole 
(above);  but  compare  Trotter  v.  Grant,  2  Wend.  413;  Wood  v.  Hickok,  2  Id.  501 ; 
and  cases  cited  under  paragraph  9,  above. 

I  Salisbury  v.  Stinson,  10  Hun,  242. 

•  Id;  Buswell  v.  Poineer,  37  N.  Y.  312. 

9  Id. ;  Id. 

10  Murray  v.  Gouverneur,  2  Johns.  Cas.  438. 

11  Porter  v.  Talcott,  1  Cow,  859 ;  Davis  v.  Allen,  3  N.  Y.  168 ;  Higby  v.  N.  Y.  <fe 
Harlem  R.  R.  Co.  3  Bosw.  497.  s.  c.  7  Abb.  Pr.  259. 

"  See  Bates  v.  Rosecrans,  37  N.  Y.  409,  s.  c.  4  Abb.  Pr.  N.  S.  276,  affi'g  23  How. 
Pr.  98. 

13  Vail  v.  Foster,  4  N.  Y.  312 ;  Smith  v.  Applegate,  1  Daly,  91. 

14  See  Gibson  v.  Tobey,  46  N.  Y.  637;  53  Barb.  191. 

15  Gibson  v.  Tobey,  46  N.  Y.  637;  53  Barb.  191.  and  cases  cited. 

16  Noel  v.  Murray,  13  N.  Y.  167,  afl.'g  1  Duer,  385;  see  also  Darnall  v.  More- 
house,  46  N.  Y.  64,Vev'g  36  How.  Pr.  611. 

II  Young  v.  Stahelin,  34  N.  Y.  258;  Steamer  St.  Lawrence,  1  Black,  622,  532. 

18  So  held  of  a  receipt  attached  to  a  bill  of  parcels,  acknowledging  that  the  seller 


332  ACTIONS  FOR  PRICE   OF  GOODS,  Ac. 

Such  an  agreement  may  be  inferred  from  circumstances,  such,  for 
instance,  as  that  the  buyer  guaranteed  the  paper.1  But  the  fact 
that  the  buyer  did  not  indorse  the  paper  does  not  raise  a  pre- 
sumption that  there  was  no  agreement  to  take  it  in  payment/ 

If  negotiable  paper  given  did  not  amount  to  payment  under 
these  rules,  the  seller  must  produce  and  offer  to  surrender  it  at 
the  trial,8  or  prove  that  it  is  lost  or  destroyed.4  If  he  produces  it 
for  cancellation,  the  fact  that  it  had  meanwhile  been  held  by  an- 
other does  not  avail.5 

Evidence  that  the  seller  agreed,  as  part  of  the  contract  of  sale, 
to  receive  negotiable  paper  of  a  third  person  in  payment,6  unless 
he  agreed  to  take  the  risk,7  does  not  preclude  him  from  refusing 
a  tender  of  it,  if  the  insolvency  of  the  makers  became  known  there- 
after and  before  delivery.8  In  such  case  he  may  recover  the  price. 
Otherwise,  if  it  was  not  known  to  either  party  till  after  delivery.9 
Evidence  that,  after  the  sale,  he  expressly  accepted  the  note  as  pay- 
ment of  the  pre-existing  debt,  does  not  preclude  him  from  proving 
that  the  maker  was  then  insolvent,  and  that  he  was  ignorant  of  the 
fact ;  and  thereupon  he  may  recover  the  price.10 

II.  DEFENDANT'S  CASE. 

48.  Denial  of  Contract.] — Under  a  general  denial,11  or  denial 
of  the  making  of  the  contract  alleged,12  evidence  is  admissible  that 
the  goods  were  delivered  under  a  special  contract  which  was  sub- 
stantially and  materially  different  from  that  alleged,  and  was  un- 
performed by  plaintiff.13  The  rules  as  to  contradicting  an  appa- 
rent written  agreement  of  sale  have  already  been  stated.14  If  the 
seller  has  testified  as  a  witness  to  prove  his  sale,  he  may  be  iin- 


has  "  received  payment  by  note."  Buswell  v.  Poineer,  37  N.  Y.  312,  s.  c.  4  Abb.  Pr. 
N.  S.  244;  35  How.  Pr.  447.  Otherwise  of  a  receipt  "  on  account,  without  recourse." 
Graves  v.  Friend,  5  Sandf.  568 ;  Bee  also  Richard  v.  Wellington,  66  N.  Y.  808. 

1  Butler  v.  Haight,  8  Wend.  535.  Even  though  the  guaranty  was  void,  for  not 
expressing  a  consideration  (Monroe  v.  Hoff,  5  Den.  360),  for  it  shows  the  intent 
equally  well. 

a  Whitbeckv.  Van  Ness,  11  Johns.  409. 

3  Holmes  v.  D'Camp.  1  Johns.  34;  Burdick  v.  Green,  15  Johns.  247. 

4  Id. 

5  Patterson  v.  Stettauer,  40  Super.  Ct.  (J.  &  S.)  69. 
'  Benedict  v.  Field,  16  N.  Y.  595. 

7  Id.     (And  even  then  if  he  was  induced  to  do  so  by  fraud.     Pierce  v.  Drake,  1 5 
Johns.  475.) 
«  i,^ 

9  Des  Arts  v.  Leggett,  16  N.  Y.  582. 

10  Roberts  v.  Fisher,  43  N.  Y.  159. 

11  Manning  v.  Winter,  7  Hun,  482. 

12  Wheeler  v.  Billings,  38  N.  Y.  263;  Hawkins  v.  Borland,  14  Cal  412;  Marsh  v. 
Dodge,  66  N.  Y.  533,  rev'g  4  Hun,  278. 

la  Manning  v.  Winter  (above).  If  the  answer  sets  up  that  defendant  was  to  pay 
when  he  could,  the  burden  of  the  proof  is  upon  him  to  make  out  the  defense.  Johnson 
v.  Plowman,  49  Barb.  472. 

14  See  paragraphs  8,  9,  <fec. ;  Lent  v.  Hodgman,  15  Barb.  274;  Groot  v.  Story,  44 
Vt.  200;  George  v.  Foy,  19  N.  H.  644. 


DEFENDANT'S  CASE.  333 

peached  on  cross-examination  by  asking  if  lie  has  not  offered  to 
sell  again.1 

49.  Set-off  against  Plaintiff's  Agent.~\ — To  let  in  the  state  of 
the  accounts  between  defendant  and  an  alleged  agent  of  plaintiff, 
with  whom  defendant  dealt  as  if  he  were  the  principal,  it  should 
be  shown  that  the  plaintiff  had  intrusted  the  alleged  agent  with 
the  possession  of  the  goods,  that  such  person  had  sold  them  as  his 
own,  in  his  own  name  ;  that  defendant  dealt  with  him  as,  and  be- 
lieved him  to  be,  the  principal  in  the  transaction,  and  that  before 
he  was  undeceived  the  set-off  accrued.     It  is  not  necessary  for  de- 
fendant to  show  that  he  had  no  means  of  knowing  that  such  per- 
son was  only  in  appearance  the  owner.2    The  fact  that  the  alleged 
agent  charged  the  defendant  a  commission,  and  the  fact  that  in 
the  invoice  rendered  to  defendant  he  did  not  charge  him  as  pur- 
chaser from  him,  but  for  goods  bought  by  his  order  and  on  his 
account,  are  relevant ;  but  not  conclusive  against  letting  in  the 
state  of  the  accounts  between  the  defendant  and  the  agent.3 

50.  Denial  of  agency  binding  Defendant^ — Under  a  general 
denial  defendant  may  contest  the  authority  of  a 'person  who  is 
claimed  to  have  bought  as  his  agent,  and  may  show  that,  the 
agency,  if  once  existing,  had  been  revoked,  and  that  plaintiff  had 
notice  of  such  revocation.4    Evidence  of  the  way  in  which  the  al- 
leged agent  carried  on  business  is  competent  for  that  purpose.5 
But  if  the  existence  of  agency  is  admitted,  excess  of  authority  is 
not  provable  unless  alleged  in  the  answer.6    If  it  appear  that  the 

foods  were  purchased  on  credit  by  a  known  agent,  for  use  of  a 
nown  principal,  the  presumption  is  that  the  credit  was  given  to 
the  principal,  and  he  can  rebut  this  by  affirmative  evidence  that  it 
was  given  exclusively  to  the  agent.7  This  fact  must  appear 
clearly.8  The  fact  that  the  alleged  agent  has  not  recognized  the 
claim  as  his  debt,  is  not  competent  in  favor  of  defendant.9 

51.  Plaintiff  an  agent  for  Defendant."] — If  it  appear  that 
plaintiff  was  the  agent  of  defendant  to  buy,  he  must  prove  that  he 
made  a  full  disclosure  to  plaintiff  of  the  fact  that  he  was  the 
owner  of  the  goods  charged,  or  the  nature  of  his  adverse  interest 
in  the  transaction.10    It  is  not  enough  to  prove  that  he  made  such 


1  Knight  v.  Forward,  63  Barb.  311. 

8  Borries  v.  Imperial  Ottoman  Bk.  L.  R.  9  C.  P.  38,  8.  c.  7  Moak's  Eng.  138. 

8  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  698,  a.  c.  3  Moak's  Eng.  R.  217. 

4  Heir  v.  Grant,  47  N.  Y.  278. 

5  Id. 

6  See  Merchant's  Bank  v.  Griswold,  9  Hun,  561. 

'  Butler  v.  Evening  Mail  Ass.  61  N.  Y.  634,  rev'g  34  Super.  Ct.  (J.  &  S.)  58. 

8  Meeker  v.  Claghorn,  44  N.  Y.  849. 

9  Turner  v.  See,  57  N.  Y.  667.     Compare  Springer  v.  Droscb,  32  Ind.  486,  8.  c.  2 
Am.  R.  356. 

10  Conkey  v.  Bond,  36  N.  Y.  427,  8.  c.  3  Abb.  Pr.  N.  S.  415,  affi'g  34  Barb.  276; 
Dunne  v.  English,  L.  R.  18  Eq.  Cas.  624 ;  10  Moak's  Eng.  837.     For  this  purpose  the 
testimony  of  the  agent  is  not  alone  enough  to  countervail  that  of  the  principal  to  the 
contrary,  if  their  credibility  appears  equal.     Duiiuo  y.  English  (above). 


334  ACTIONS  FOR  PRICE  OF  GOODS,  <fcc. 

statements  as  should  put  the  principal  on  inquiry.1  Agency  and 
failure  to  disclose  interest  being  shown,  the  facts  that  the  agent 
acted  without  compensation,  and  without  intent  to  defraud,  and 
made  no  false  representations,2  or  acted  according  to  a  usage  of 
trade,  not  shown  to  be  known  to,  and  assented  to  by  the  defend- 
ant,3 are  not  material.  The  fact  that  plaintiff  made,  or  assented  to 
a  charge  for  commissions,  is  conclusive  against  him  to  show  that 
to  some  extent  the  relation  of  principal  and  agent  existed.4 

52.  Defendant  Not  the  Buyer,  but  agent  for  another^ — Un- 
der a  general  denial,  defendant  may  show  that,  in  making  an  oral 
contract  sued  on,  he  acted  as  agent  for  another,  and  on  Ins  credit, 
plaintiff  knowing  of  the  agency  ; s  and  for  this  purpose  defendant 
may  prove  the  relations  between  himself  and  his  alleged  princi- 
pal ; "  but  the  subsequent  admissions  of  the  latter,  that  he  was  the 
real  debtor,  if  not  part  of  the  res  gestce  of  an  act  properly  in  evi- 
dence, are  not  competent  against  the  plaintiff.7    If,  however,  the 
contract  was  in  writing,  and  defendant  appears  in  it  as  principal, 
parol  evidence  cannot  be  admitted  for  the  purpose  of  exonerating 
him,  even  though  he  should  propose  to  show,  if  allowed,  that  he 
disclosed  his  agency  and  mentioned  the  name  of  his  principal  at 
the  time  the  contract  was  executed ; 8  or  even  that  he  was  known 
to  the  other  party  to  be  an  auctioneer  or  broker,  who  is  usually 
employed  in  selling  or  buying  property  as  agent,9  or  an  attorney 
for  a  party  named  on  the  record.10 

53.  By  bidding  at  Auction.'] — "Where  a  buyer  at  auction  de- 
fends on  the  ground  of  by  bidding,  the  burden  of  proof  is  on  him 
to  prove  the  fraud  ;  but  if  there  be  proof  that  the  fraud  was 
practiced  for  the  purpose  by  the  auctioneer,  it  is  not  essential  that 
he  should  prove  that  the  owner  knew  of  it.11    But  it  should  ap- 
pear that  defendant  was  actually  misled  ;  though  this  may  be  in- 
ferred by  the  jury  from  the  intent  to  mislead,  and  the  nature  of 
the  method  pursued.12 

54.  Rescission.'] — When  the  maker,  or  seller,  of  an  article 
takes  it  back  after  delivery,  because  the  price  remains  unpaid,  the 
legal  presumption  is  that  the  sale  is  rescinded,  unless  there  is 


1  Dunne  v.  English  (above). 

I  Conkey  v.  Bond  (above). 

3  Robinson  v.  Mollett,  L.  R.  7  Ho.  of  L.  802,  s.  o.  14  MoaVs  Eng.  177. 

4  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  598,  s.  c.  3  Moat's  Eng.  217. 

6  Merritt  v.  Briggs,  57  N.,Y.  651. 

8  McDougall  v.  Hess,  68  N.  Y.  620;  Fuller  v.  Wilder,  61  Me.  625. 

7  Wilson  v.  Sherlock,  36  Me.  295.     Compare  Black  v.  Richards,  2  Stew.   <fe  P. 
(Ala.)  338. 

8  Nash  v.  Towne,  5  "Wall.  703 ;  Higgins  v.  Senior,  8  Mees.  A  W.  844 ;  Babbett  y. 
Young,  51  Barb.  466.    Except,  perhaps,  where  he  or  his  principal  waa  a  public 
officer,  and  known  to  be  dealing  as  such.     Walker  v.  Christian,  21  Gratt.  (Va.)  291. 

8  Mills  v.  Hunt,  20  Wend.  431 ;  McComb  v.  Wright,  4  Johns.  Ch.  659. 
10  Chappell  v.  Dann,  21  Barb.  17. 

II  Curtis  v.  Aspinwall,  114  Mass.  187,  s.  o.  19  Am,  R.  832. 
"Id. 


DEFENDANT'S   CASE.  335 

eome  evidence  to  show  an  intent  to  take  it  for  the  purpose  of  re- 
Bale  on  the  buyer's  account,  or  otherwise  not  to  discharge  the  debt 
for  the  price.1  Even  if  a  modification  or  rescission  of  an  executory 
contract  may  be  proved  by  parol,  notwithstanding  the  statute  of 
frauds,  still,  after  a  sale  has  been  executed,  the  taking  back  is  a 
new  contract  within  the  meaning  of  the  statute,  and  its  terms 
must  be  proved  by  the  statute  evidence.2  Evidence  of  the  insol- 
vency of  the  buyer,  and  notice  of  it  given  by  him,  coupled  with 
the  facts  that  after  such  insolvency  no  steps  were  taken  indicat- 
ing an  intention  to  stand  by  the  contract,  and  that  time  for  sev- 
eral installments  passed  without  delivery  or  payment,  will  sustain 
an  inference  that  the  seller  had  a  right  to  conclude  that  the  insol- 
vent had  abandoned  the  contract,  and  if  he  did  so  conclude,  had 
a  right  to  abandon  it  himself.3  Where  the  seller  has  been  de- 
frauded, lapse  of  time  without  rescinding  is  some  evidence  that 
he  has  determined  to  affirm  the  contract ;  and  when  the  lapse  of 
time  is  great,  it  may  be  treated  as  sufficient  evidence  to  show  that 
he  has  so  determined.4 

A  general  agent  to  buy  (though  in  a  particular  business  only), 
is  presumed  to  have  had  power  to  rescind.5  Otherwise,  ol  a 
special  agent. 

55.  ^Recoupment.'] — The  breach  of  a  valid  agreement  between 
the  same  parties,  which  might  itself  be  the  subject  of  a  cross  ac- 
tion against  the  plaintiff,  may  always  be  given  in  evidence  (under 
proper  pleading),  either  in  mitigation  of  damages  or  in  bar  of  an 
action  on  the  agreement  of  which  it  formed  either  the  whole  or 
part  of  the  consideration.     If  the  stipulation  on  plaintiff's  part 
was  a  condition  precedent  to  defendant's  obligation,  evidence  of 
its  breach  is  generally  admissible  under  a  general  denial;  but 
otherwise  should  be  pleaded  by  defendant.6 

56.  Defects  in  title,  quantity  or  quality^ — If  delivery  or  ac- 
ceptance is  in  issue  on  the  pleadings,  evidence  that  the  thing  ten- 
dered did  not  correspond  with  the  contract,   or  that  plaintiff 
could  not  give  title,   will  be  admissible,  though  not  specially 
pleaded ;  but  if  acceptance  is  admitted,  or  proved,  and  a  price 
fixed  by  contract  is  relied  on  by  plaintiff,  evidence  of  deficiency 
in  quality  is  not  admissible,  unless  set  up  in  the  answer.7    If  the 


1  Sloan  v.  Van  "Wyck,  4  Abb.  Ct.  App.  Dec.  250,  nffi'g  47  Barb.  634,  and  rev'g  36 
Id.  335. 

*  Blanchard  v.  Trim,  38  N.  Y.  228.     Compare  9  Wall.  272,  and  p.  314  of  this  vol. 
8  Morgan  v.  Bain,  L.  R.  10  C.  P.  15,  s.  c.  11  Moak*s  Eng.  220,  and  cases  cited. 

Compare  Freeth  v.  Burr,  L.  R.  C.  P.  208,  s.  o.  9  Moak"s  Eng.  393. 

4  Clough  v.  London  &  North  Western  R.  Co.  L.  R.  7  Exch.  26,  35,  s.  c.  1  Moak's 
Eng.  148,  158. 

*  NELSON.  Ch.  J.     Anderson  v.  Coonley,  21  "Wend.  279;  and  see  Dillon  v.  Ander 
son,  43  N.  Y.  231. 

*  The  lending  cases  areReab  v.  McAllister,  8  Wend.  110;   Batterman  v.  Pierce,  3 
Hill.  171;  Harrington  v.  Stratton,  22  Pick.  510.     Compare  Seymour  v.  Davis,  2 
Sandf.  239. 

1  McCormick  v.  Sarson,  1   Sweeney,  161,  B.  c.  38  How.  Pr.   190;  Fetberly  v. 
Burke,  64  N.  Y.  646. 


336  ACTIONS  FOR  NOT  ACCEPTING  GOODS,   Ac. 

plaintiff  sues  on  a  quantum  memit,  evidence  of  deficiency  in 
quality  is  admissible,  if  alleged,  even  though  acceptance  under  a 
contract  fixing  a  price  be  proved.1  If  the  defendant  sets  up  war- 
ranty, or  false  representation,2  either  directly,  or  by  denying  that 
there  was  a  purchase  except  upon  terms  specified  in  the  answer,* 
the  burden  is  on  him  to  prove  the  defense. 

The  mode  of  proving  defects  is  stated  below. 

57.  Deceit.'] — -The  rules  regulating  the  mode  of  proof  of  false 
representations  are  substantially  the  same  as  in  an  action  for 
damages.4 

58.  Inconsistent  remedies.'] — The  pendency  of  replevin  by  the 
same  plaintiff  to  recover  the  goods,  goes  in  bar  of  an  action  sub- 
sequently brought  for  the  price.5    The  pendency  of  a  mechanic's 
lien  foreclosure,  for  the  same  goods,  against  the  same  defendant, 
is  also  a  defense.6 

59.  Wager  contract.'] — Unless  the  terms  of  the  contract  show 
the  contrary,  it  is  presumed  that  delivery  was  intended.7    The 
burden  is  on  defendant8  to  show  that  neitner  party9  intended  de- 
livery.    What  was  said  at  the  time  of  contracting  is  competent  ;10 
and  a  party  may  be  asked  what  was  his  intent.11    The  buyer's 
lack  of  means  to  pay,12  if  known  to  the  seller,18  or  the  fact  that 
both  were  endeavoring  to  make  "  a  corner  "14  is  relevant :  but  the 
seller's  lack  of  the  property,  though  known  to  the  buyer,15  or 
that  one  party  made  wager  contracts  with  other  persons,16  is  not. 

HI.   ACTION  AGAINST  BUYER,  FOR  DAMAGES  FOR  NOT  ACCEPTING. 

60.  General  principles.'] — Plaintiff  may  be  put  to  proof  of 
the  contract,  the  performance  of  all  conditions  precedent  on  his 
part,  the  refusal  to  receive,  and  the  amount  of  damage.17     The 
rules  already  stated  as  to  the  mode  of  proof  of  these  facts  are  in 
general  applicable.     Indeed,  under  a  complaint  alleging  sale  and 
delivery,  plaintiff  may  recover  on  proof  of  sale  and  wrongful 


1  Moffett  v.  Sackett,  1.8  N.  Y.  622. 
*  Dorr  v.  Fisher,  1  Cush.  271. 

3  Goodwin  v.  Hirsch,  37  Super.  Ct.  (J.  &  S  )  503. 

4  See  paragraph  68,  Ac.,  and  the  Chapter  on  ACTIONS  FOR  DECEIT. 

5  Morris  v.  Rexford,  18  N.  Y.  552.     Compare  Kinney  v.  Kiernan,  49  N.  Y.  164. 
8  Ogden  v.  Bodle,  2  Duer,  611. 

'  Story  v.  Salomon,  71  N.  Y.  420,  nffi'g  6  Daly,  638. 

8  Bigelow  v.  Benedict,  70  N.  Y.  206,  affi'g  9  Hun,  429;  Clarke  v.  Foss,  7  Biss.540. 

»  Gregory  v.  Wendell,  40  Mich.  432,  s.  c.  9  Cent.  L.  J.  76 ;  Warren  v.  Hewitt, 46 
Geo.  601 ;  Clark  v.  Fosa  (above) ;  Pizley  v.  Boynton,  79  III  851 ;  Ramsey  v.  Berry, 
65  Me.  570. 

10  Caisard  v.  Hinman,  6  Bosw.  14. 

11  Yerkes  v.  Salomon,  11  Hun,  471. 

12  Kilpatrickv.  Bonsall,  72  Penn.  St.  155. 

13  In  re  Green,  7  Bill.  338. 
"  Exp.  Young,  6  Bias.  53. 

15  Rumsey  v.  Berry  (above). 
18  Gregory  v.  Wendell  (above). 
"  Rose.  N.  P.  495. 


ACTIONS  FOR  NON-DELIVERY.  337 

refusal  to  accept,  if  defendant  is  not  misled  to  his  prejudice,  for 
the  variance  is  amendable.1 

61.  Readiness  to  perform.'] — Where  delivery  and  payment 
were  to  be  concurrent  acts,  an  averment  that  at  the  time  and 
place  fixed  plaintiff  was  ready  and  willing  to  deliver,  &c.,  is 
enough ; 2  and  under  this  allegation,  if  put  in  issue,  plaintiff  must 
show  that  he  had  the  article  ready  for  delivery,  and  that  it  cor- 
responded with  that  contracted  for,8  and  either  that  he  offered  to 
deliver,  or  that  defendant  dispensed  with  delivery,  or  made  it  an 
idle  and  useless  form  to  attempt  to  deliver.  The  averment  in- 
volves the  ability  of  the  plaintiff  to  deliver.4  Evidence  that  a 
sufficient  quantity  of  goods  were  at  the  place  fixed  for  delivery, 
without  proving  that  they  were  plaintiff's  property,5  or  that  he  had 
a  right  to  sell  them,6  is  not  enough  to  show  performance.  Excuse 
for  oreach  is  not  admissible  under  an  allegation  of  performance. 
But  if  the  defendant  notified  his  intention  to  refuse,  and  forbade 
the  plaintiff  to  deliver  goods  ordered  to  be  made,  then  plaintiff  need 
not  proceed  to  complete  the  contract  on  his  part,  and  may  show 
this  under  an  allegation  of  refusal  to  accept,  although  the  goods 
were  not  ready  for  delivery,  and  could  not  be  delivered  ;  for  the 
plaintiff  is  thereby  discharged  from  proceeding  further ;  and  such 
a  notice  to  the  plaintiff  will  support  an  allegation  that  the  de- 
fendant prevented  and  discharged  the  plaintiff  from  supply- 
ing the  goods  and  executing  the  contract.7  To  support  an  alle- 
gation of  plaintiffs  readiness  to  manufacture  articles  ordered  by 
defendant,  it  is  enough,  in  the  first  instance,  to  show  that  de- 
fendant had  countermanded  the  manufacture  while  in  progress 
and  after  delivery  of  some,  and  had  notified  his  refusal  to  accept 
any  more.8 

IY.  ACTION  AGAINST  SELLER  FOE  NON-DELIVERY. 

02.  General  Principles.'] — The  general  principles  which  apply 
to  the  various  facts  to  be  proved  are  already  stated.  It  only  remains 
to  notice  some  rules  specially  applicable  in  this  class  of  actions. 

63.  Orders,  and  Acceptance.] — Evidence  that  defendant,  in 
acknowledging  the  receipt  of  an  order,  added  qualifications  as  to 
undertaking  to  fill  it,  rebuts  the  presumption  of  assent  raised  by 
retaining  the  order,  and  throws  on  plaintiff  the  b.urden  of  show- 
ing that  he  communicated  to  defendant  his  assent  to  any  new 


1  See  paragraph  1. 
1  Rose.  N.  P.  510. 
8  Boyd  v.  Lett,  1  C.  B.  222. 

4  Id.  citing  Lawrence  v.  Knowles,  6  N.  C.  899;  De  Medina  v.  Norman,  9  M.  <fe  W 
820  ;  Spotswood  v.  Barrow,  1  Exch.  804. 
§  Cobb  v.  Williams,  7  Johns.  24. 

•  See  Nixon  v.  Nixon,  21  Ohio  St.  114. 

7  Rose.  N.  P.  611,  citing  Cortv.  Ambergate  Ry.  Co.  17  Q.  B.  127,  144. 

•  Id.  citing  also  Baker  v.  Farminger,  L.  J.  28  Ex.  130.     See  also  paragraph  30. 

22 


338  ACTIONS  FOR  NON-DELIVERY,  Ao. 

conditions  thus  made.1  The  holder,  by  assignment,  of  an  order 
on  defendant,  may  recover,  on  parol  evidence,  that  defendant  had 
verbally  accepted  the  order  when  in  the  hands  of  the  payee,  and 
that  the  latter's  assignee  had  stipulated  to  and  had  duly  performed 
the  conditions  of  it.2  A  variance  in  the  consideration  is  not  ma- 
terial, unless  shown  to  have  misled  defendant  to  his  prejudice.8 

64.  Readiness  to  perform^ — Under  an  agreement  to  deliver 
at  a  particular  place,  for  payment  on  delivery,  the  buyer  must  al- 
lege* and  prove5  readindss  and  willingness  to  receive  and  pay  at 
that  place,  or  show  that  so  doing  was  waived  or  prevented  by 
some  act  of  the  seller  ; 6  and  this  is  so  whether  the  defendant  was 
at  the  place  ready  to  deliver  or  not.7    But  he  need  not  prove  ten- 
der and  demand.®    Any  satisfactory  evidence  that  plaintiff  was 
able  and  willing  to  fulnll  the  terms  of  the  contract,  on  his  part,  is 
sufficient.9    If  the  seller  refused  to  deliver,  and  put  it  out  of  his 
power  to  do  so,  it  is  unnecessary  for  the  buyer  to  offer  to  pay  the 
unpaid  price  before  suing ; 10  and  if  having  put  it  out  of  his  own 
power  ever  to  perform,  he  disavows  and  repudiates  the  contract, 
this,  although  done  before  the  time  for  performance,  is  a  breach 
without  further  demand.11 

Under  an  allegation  of  defendant's  non-delivery,  evidence  of 
his  tender  properly  refused  by  plaintiff,  is  admissible,  unless  de- 
fendant shows  he  was  actually  misled.12 

65.  Object  of  buying.'] — Plaintiff  may  prove  that  defendants 
were  informed  that  the  object  of  the  order  was  to  enable  plaintiff 
to  fill  a  contract  made  by  him  with  others,  and  that  defendants 


1  Briggs  v.  Sizer,  30  N.  Y.  647.  * 

*  Bailey  v.  Johnson,  9  Cow.  115.     But  a  written  acceptance  of  a  written  order  for 

mere  delivery  of  goods  is  not  a  sale,  but  a  promise  to  deliver  on  request;  and  so  to 

be  declared  on.     Bur  rail  v.  Jacot,  1  Barb.  165. 

3  See,  for  instance,  Meriden  Britannia  Co.  v.  Zingsen,  4  Robt.  312,  affi'd  in  48  N.  Y. 
247.     At  common  law,  evidence  of  a  sale,  and  payment  by  a  sight-draft,  duly  paid, 
will  support  a  declaration  of  a  sale  for  so  much  "  in  hand  paid."    Nash  v.  Towne,  5 
Wall.  690. 

4  Clark  v.  Dales,  20  Barb.  42. 

5  Topping  v.  Root,  5  Cow.  404;  Vail  v.  Rice,  5  N.  Y.  155;  Bronson  v.  Wiman,  8 
Id.  182. 

8  Cornwell  v.  Haight,  8  Barb.  327.  In  strictness,  such  waiver  or  prevention  ia 
not  appropriate  evidence  under  an  allegation  of  readiness.  Crandall  v.  Clark,  7  Barb. 
169,  171  ;  Cherrey  v.  Newby,  11  Tex.  457.  But,  properly,  it  is  a  question  of  vari- 
ance, to  be  disregarded  or  amended,  unless  defendant  is  misled. 

1  Porter  v.  Rose,  12  Johns.  209. 

8  Coonley  v.  Anderson,  1  Hill,  519;  Crosby  v.  Watkins,  12  Cal.  85.     Compare 
Dunham  v.  Pettee,  8  N.  Y.  (4  Seld.)  508.     According  to  the  English  authorities,  a 
demand  of  the  goods  is  sufficient  evidence  that  the  plaintiff  was  ready  and  willing  to 
pay.     Wilks  v.  Atkinson,  1  Marsh.  412;  Levy  v.  Herbert,  Lord,  7  Taunt.  318;  and 
this,  though  the  demand  may  be  by  the  plaintiff's  servant ;  Squier  v.  Hunt,  3  Price, 
68,  cited  in  Rose.  N.  P.  517. 

9  Vail  v.  Rice,  5  N.  Y.  155. 

10  Hawley  v.  Keeler,  63  N.  Y.  114,  affi'g  62  Barb.  231. 

11  Sears  v.  Conover,  4  Abb.  Ct  App.  Dec.  179 ;  contra,  Daniels  v.  Newton,  114 
Maes.  530,  B.  c.  19  Am.  R.  384. 

13  Seaman  v.  Low,  5  Barb.  337. 


BREACH  OF  WARRANTY.  339 

contracted  in  reference  to  that  fact,  as  evidence  affecting  the  rule 
of  damages.1 

66.  Defendant's   Case — Only  an  Agent.'] — If    the    nominal 
seller,  in  contracting,  did  not  disclose  his  principal,  he  may,  if  he 
disclosed  the  fact  that  he  was  acting  as  agent,  exonerate  nimself 
from  liability  by  showing  a  payment  over  to  his  principal,  or 
other  special  circumstances  rendering  it  inequitable,  as  between 
the  parties,  to  hold  him  responsible.2 

67.  Intermediate  destruction  of  thing  sold.'] — Under  an  execu- 
tory contract  of  sale,  the  presumption  is,  in  the  absence  of  evidence 
of  a  different  intent,  that  the  parties  contemplated  the  continued 
existence  of  the  thing  sold,  until  the  time  for  delivery,  so  that  if 
it  is  destroyed  by  accident  before  delivery,  without  the  seller's 
fault,  he  is  not  liable  for  failure  to  fulfill.3 

V.  ACTIONS  AND  DEFENSES  ARISING  ON  BREACH  OF  WARRANTY. 

68.  Grounds  of  the  action.'] — For  a  false  warranty  the  action 
may  be  either  on  contract  or  for  deceit.4     If  warranty,  as  distin- 
guished from  a  mere   representation,5  is   alleged   and  proved, 
acienter  need  not   be   averred,   nor  proved  if   averred ; 6  but 
plaintiff  may  recover  on  proof  of  the  false  warranty,  express  or 
implied,  if  alleged  as  his  cause  of  action,  although  allegations  of 
fraud  are  unproved.7    If  the  complaint  is  so  framed  as  to  make 
fraud  the  cause  of  action,  a  warranty  being  alleged  as  the  means 
of  the  fraud,  the  warranty  should  be  proved ; 8  and  plaintiff  can- 
not abandon  the  charge  of  fraud  and  recover  on  mere  false  war- 
ranty.'   A  recovery  for  fraud  alone,  however,  may  be  sustained.10 
If  the  complaint  sets  forth  only  a  warranty,  recovery  for  fraud 
alone  is  not  allowable.11 

69.  Pleading.'] — "Warranty,  if  relied  on,   must  be  alleged,13 
even  though  it  be  implied  by  law  ; 13  but,  under  an  allegation  not 
stating  whether  the  warranty  was  express  or  implied,  proof  of 


I  Messraore  v.  N.  Y.  Shot  &  Lead  Co.  40  N.  Y.  422. 

*  Morrison  v.  Currie,  4  Duer,  79  ;  and  cases  cited. 

3  Dexter  v.  Norton,  47  N.  Y.  62,  affi'g  65  Barb.  272.     Compare  52  Id.  96. 

4  Schuchardt  v.  Aliens,  1  Wall.  368,  and  cases  cited. 

*  Quintard  v.  Newton,  6  Robt.  72. 

4  Schuchardt  v.  Aliens  (above);  Case  v.  Boughton,  11  Wend.  106;  Holman  v. 
Dord,  12  Barb.  336. 

'  Ledwich  v.  McKim,  53  N.  Y.  307,  affi'g  35  Super.  Ct.  (J.  &  S.)  304 ;  Ross  v. 
Terry,  63  N.  Y.  613.  Contra,  now  by  N.  Y.  Code  Civ.  Pro.  8  549. 

8  Snell  v.  Moses,  1  Johns.  96  ;  and  see  Perry  v.  Aaron,  Id.  129. 

*  Rosa  v.  Mather,  51  N.  Y.  108,  rev'g  47  Barb.  582. 

10  Indianapolis,  <fcc.  R.  R.  Co.  v.  Tyng,  63  N.  Y.  653,  affi'g  2  Hun,  311. 

II  Fisher  v.  Fredenhall,  21  Barb.  82.     For  other  illustrations,  and  the  reasons  of 
these  distinctions,  see  pp.  272,  273,  and  285  of  this  voL 

"  Diefendorff  v.  Gage,  7  Barb.  18. 
13  Prentice  v.  Dike,  6  Duer,  220. 


340  ACTIONS  AND  DEFENSES  ON 

either  is  admissible,  and  sufficient.1  Evidence  of  a  warranty  is 
not  to  be  excluded  because  the  language  proved  does  not  strictly 
follow  the  allegation  ; 2  and  if  there  be  a  substantial  variance,  an 
amendment  should  be  allowed,  unless  the  adverse  party  has  been 
misled  to  his  prejudice. 

70.  Warranty  of  things  in  action.'] — On  a  transfer  of  nego- 
tiable paper,  or  things  in  action,  for  a  valuable  consideration, 
there  is,  unless  circumstances  raise  a  contrary  presumption,  an 
implied  warranty,  not  only  of  title,  but  of  genuineness,  and  that 
there  is  no  defense  arising  out  of  the  seller's  own  act,3  and  that 
he  has  no  knowledge  of  any  fact  which  makes  it  worthless,  such 
as  usury,4  payment,  insolvency  of  the  maker,6  &c.     There  is,  how- 
ever, no  implied  warranty  as  to  legal  validity,  beyond  this.6 

71.  Warranty  of  titled. — On  a  sale  of  chattels  in  the  seller's 
possession,  a  warranty  of  title  is  implied,7  unless  the  circum- 
stances are  such  as  to  give  rise  to   a  contrary  presumption.8 
Where  the  seller  is  not  in  possession  of  the  chattel  at  the  time  of 
sale,  a  warranty  of  title  is  not  implied.     It  should  only  be  implied 
where  good  faith  requires  it.9 

72.  Express  warranty  I\ — To  constitute  an  express  warranty, 
there  must  be  some  expression  by  the  seller  amounting  to  an  un- 
equivocal affirmation,  relied  on  by  the  buyer,  that  the  goods  are 
of  some  certain  quality.     It  is  not  enough  to  prove  mere  expres- 
sions of  opinion.10    But  it  is  not  necessary  that  the  word  "  war- 
rant "  should  be  used.     Any  affirmation  amounting  to  it  is  suffi- 
cient.11   No  particular  phraseology  is  necessary.     Any  distinct  as- 
sertion of  the  quality  of  the  thing,  made  by  the  seller  as  an  in- 


1  Hoe  v.  Sanborn,  21  N.  Y.  552;  Hannum  v.  Richardson,  48  Vt.  508,  s.  o.*21 
Am.  R.  162. 

2  Oneida  Manuf.  Soc.  v.  Lawrence,  4  Cow.  440;  Hastings  v.  Lovering,  2  Pick.  214. 
Contra,  Summers  v.  Vaughan,  35  Ind.  323;  s.  c.  9  Am.  R.  741. 

3  Delaware  Bank  v.  Jarvis,  20  N.  Y.  226. 

4  Fake  v.  Smith,  7  Abb.  Pr.  N.  S.  106. 

5  Brown  v.  Montgomery,  20  N.  Y.  287. 

8  The  authorities  are  not  agreed.  Compare  Ross  v.  Terry,  63  N.  Y.  615;  and 
Otis  v.  Cullum,  92  IT.  S.  (2  Otto),  447.  According  to  the  latter  case,  the  only  lia, 
bility,  ex  contractu,  is  for  title  and  genuineness;  and  any  other  liability  is  in  tort  for 
bad  faith.  On  an  assignment  of  a  judgment  for  value,  without  disclosing  payments, 
there  is  an  implied  warranty  that  it  is  unpaid.  Furniss  v.  Ferguson,  15  N.  Y.  437  ; 
84  Id.  485  ;  but  not  that  it  will  not  be  reversed.  Glass  v.  Reed,  2  Dana  (Ky.)  168. 

7  Calye's  Case,  1  Smith's  L.  Cas.  241,  342 ;  Burt  v.  Dewey,  40  N.  Y.  283,  rev'g  31 
Barb.  540;  Hoe  v.  Sanborn,  21  N.  Y.  552. 

8  As  where  the  seller  merely  sells  such  right  as  he  has,  without  either  having  or 
undertaking  to  give  actual  or  constructive  possession,  Id. ;  or  is  a  pawnbroker,  sell- 
ing unredeemed  pledges.     Morley  v.  Attenborough,  3  Exch.  500. 

9  McCoy  v.  Artcher,  3  Barb.  323  ;  Edick  v.  Crim,  10  Id.  445  ;  Hopkins  v.  Grin- 
nell,  28  Barb.  533 ;  Scranton  v.  Clark,  39  N.  Y.  220,  affi'g  39  Barb.  273. 

10  Swett  v.  Colgate,  20  Johns.  196;  1825,  Oneida  Manuf.  Soc.  v.  Lawrence,  4  Cow. 
440. 

11  Whitney  v.  Sutton,  10  Wend.  412;  1835,  Cook  v.  Mosely,  13  Id.  277;  Wilbur 
v.  Cartwright,  44  Barb.  536 ;  Wells  v.  Selwood,  61  Id.  238. 


BREACH  OF  WARRANTY.  341 

ducement  to  purchase,  and  relied  on  by  the  buyer,  may  be  ground 
for  finding  a  warranty.1  Evasive  or  equivocal  language  may  be 
left  to  the  jury,  to  determine  whether  it  was  intended  to  be  under- 
stood as  a  warranty  or  affirmative  representation.2  Any  positive 
affirmation,  understood  and  relied  on  by  the  buyer,  is  a  warranty, 
or,  at  least,  evidence  to  go  to  the  jury.3  The  description  of  the 
goods,  in  a  bought  and  sold  note,  advertisement,  bill  of  parcels,  in- 
voice, or  in  an  oral  assurance  to  the  buyer,  is  evidence  of  a  war- 
ranty.4 

If  the  words  used  were  such  as  might  have  been  understood- 
and  intended  by  tfye  parties  as  a  warranty,  the  question  whether 
they  actually  were,  is  a  question  of  fact  for  the  jury.5  If  the 
contract  be  in  words  clearly  constituting  a  warranty,  the  seller 
cannot  avoid  it  by  evidence  that  he  did  not  intend  to  be  under- 
stood as  intending  what  his  language  declares.6 

Where  the  sale  was  oral,  evidence  of  everything  that  took 
place  between  the  parties,  upon  the  subject,  before  and  at  its  final 
completion,  is  competent.7  If  the  warranty  relied  on  was  made 
after  the  seller  had  completed  the  sale,  so  that  the  consideration 
already  given  had  been  exhausted  by  a  transfer  without  warranty, 
a  new  consideration  must  be  proved.8 

Upon  a  sale  with  express  warranty,  whether  the  sale  be  exe- 
cuted or  executory,  the  buyer  is  not  bound  to  rescind  and  return, 
on  discovering  a  breach,9  but  in  such  case  clearer  proof  of  breach 
is  required  than  if  he  did  return  the  thing.10  In  respect  to  de- 
fects that  were  not  open  and  visible,  the  buyer,  with  express  war- 
ranty, is  not  bound  to  prove  that  he  applied  tests  before  consum- 
ing it  in  use.11 

73.  Agent's  authority  to  warrant.'] — Evidence  of  authority 
conferred  on  an  agent,  general  or  special,12  or  a  broker,13  to  sell, 
(restrictions  not  appearing),  raises  a  legal  presumption  of  au- 
thority to  warrant.  Otherwise  of  a  mere  servant.14  But  the  pre- 


1  Chapman  v.  Murch,  19  Johns.  290;  Gallagher  v.  Waring,  9  Wend.  20. 

1  See,  for  instance.  Cook  v.  Mosely,  13  Wend.  277  ;  Burge  v.  Stroberg,  42  Geo.  88. 

3  Hawkins  v.  Pemberton,  61  N.  Y.  198,  rev'g  6  Robt.  42,  and  modifying  earlier 
cases. 

4  Id. ;  Wolcott  v.  Mount,  9  Vroom,  N.  J.  496,  s.  c.  20  Am.  R.  425,  affi'g  13  Am.  R. 
4^8 ;  Dounce  v.  Dow,  64  N.  Y.  16,  rev'g  6  Supra.  Ct.  (T.  &  C.)  653.     So  of  an  order 
for  a  specified  kind  of  goods,  followed  by  delivery  of  a  thing  as  such.     White  T. 
Miller,  7  Hun,  427. 

5  Duffee  v.  Mason,  8  Cow.  25;  Whitney  v.  Sutton,  10  Wend.  412;  Blakeman  v. 
McKay,  1  Hilt.  266;  Hawkins  v.  Pemberton,  51  N.  Y.  198,  rev'g  6  Robt.  42. 

«  Hawkins  v.  Pemberfcon,  51  N.  Y.  198.  rev'g  6  Robt.  42. 

*  Pierson  v.  Hoag,  47  Barb.  243 ;  Cunningham  v.  Parks,  97  Mass.  172. 

8  Summers  v.  Vaughan,  85  Ind.  323,  s.  c.  9  Am.  R.  741. 

9  Day  v.  Pool,  52  N.  Y.  416,  affi'g  63  Barb.  506;  Ross  v.  Terry,  63  N.  Y.  613. 

10  Day  v.  Pool  (nbove). 

11  Dounce  v.  Dow,  67  N.  Y.   16,  rev'g  6  Supra.  Ct  (T.   A  C.)  653',  Gaatier  T. 
Douglass  M'fg  Co.  13  II un,  614. 

l*  Schuchardt  v.  Aliens,  1  Wall.  369,  and  cases  cited. 

18  Nelson  v.  Cowing,  6  Hill,  336. 

14  Woodin  v.  Burfo'rd,  2  Cr.  <fc  M.  891. 


34:2  ACTIONS  AND  DEFENSES  ON 

i 

sumed  authority  is  not  to  be  stretched  to  nnusual  warranties.1 
Evidence  of  the  usage  of  the  trade  is  admissible  as  one  means  of 
defining  the  scope  of  the  apparent  authority  of  the  agent  or 
broker.2  If  there  was  neither  express  nor  implied  authority,  it  is 
not  enough  to  show  that  the  principal  received  and  retained  the 
price,  without  showing  that  he  knew  of  the  unauthorized  war- 
ranty.8 

74.  Implied  Warranty  on  an  Executed  Sale.~] — An  executed 
sale  of  chattels — that  is,  a  sale  executed  when  made — does  not  of 
itself  imply  any  warranty  of  quality.  To  establish  such  an  im- 
plied warranty  there  must  be  evidence  of  circumstances  not  es- 
sential to  sale,, which  afford  ground  for  presuming  a  warranty  to 
have  been  within  the  intention  of  the  parties.4  It  cannot  be  im- 
ported into  the  contract  merely  by  evidence  of  commercial  usage 
to  recognize  an  implied  warranty.5  Evidence  that  the  buyer's 
purpose  was  communicated,  does  not  alone  raise  an  implied  war- 
ranty that  the  thing  was  fit  for  the  purpose,6  for  it  is  enough  if 
the  known,  defined,  described  thing  bought,  was  delivered.7 
Neither  the  silence  of  the  seller  at  the  time  of  sale,8  nor  the  fact 
that  a  sound  price  was  paid,9  will  alone  imply  a  warranty.  But  if 
the  article  was  contracted  to  be  furnished  for  a  particular  use,  there 
is  an  implied  warranty  that  it  should  be  suited  for  that  use.10 

The  exposure  or  offer  of  goods  for  sale  by  a  manufacturer  as 
being  of  his  build  or  workmanship  (whether  truly  so  or  not),  im- 
plies a  warranty  or  representation  that  they  are  made  properly, 
and  that  the  fault,  if  any,  is  a  latent  one,  arising  from  causes 
which  he  could  not  control.11  Hence  even  on  an  executed  sale  by 
one  assuming  to  be  the  maker,  he  is  liable  upon  an  implied  war- 
ranty that  the  article  is  free  from  any  defect  produced  by  the 
manufacturing  process  itself.12  Where  the  defect  in  the  article 
arises  from  a  defect  in  the  materials  employed,  the  warranty  is 


1  Smith  v.  Tracy,  36  N.  Y.  79 ;  2  Greenl.  Ev.  13  ed.  50  n. 

s  2  Whart.  Ev.  §  967.     Contra,  Dodd  v.  Farlow,  11  Allen,  421. 

3  Smith  v.  Tracy,  36  N.  Y.  79.     Compare  Brower  v.  Lewis,  19  Barb.  674  ;  Sweet 
V.  Bradley,  24  Id.  549. 

4  See  Redhead  v.  Midland  Rw.  Co.  L.  R.  4  Q.  B.  392;  Bywater  v.  Richardson,  1 
Ad.  &  E.  508. 

6  Barnard  v.  Kellogg,  10  Wall.  383. 

'  Crogate's  Case,  1  !Sm.  L.  Cas.  247,  250 ;  Jones  v.  Just,  L.  R.  3  Q.  B.  197  ;  Bart- 
lett  v.  Hoppock,  34  N.  Y.  118. 

1  See  Dounce  v.  Dow,  64  N.  Y.  416. 

8  Calye's  Case,  1  Sm.  L.  Cas.  241,  243. 

9  Wright  v.  Hart,  18  Wend.  449,  affi'g  17  Id.  267. 

10  Brown  v.  Sales,  27  Vt.  227,  232;  Howard  v.  Hoey,  23  Wend.  850;  Gallagher 
v.  Waring,  9  Id.  20.     Where  the  allegation  is  that  plaintiffs  were  accustomed  to  use 
the  best,  <fcc.,  and  defendants  falsely  represented  and  sold,  <fcc.,  knowing  it  was 
bought  for  use  in  their  business,  plaintiff  may  prove  what  kind  he  was  accustomed  to 
use  ;  and  for  this  purpose  may  ask  his  broker  what  kind  he  had  been  in  the  habit  of 
buying.     Schuchardt  v.  Aliens,  1  Wall.  368. 

11  Chandelor  v.  Lopus,  1  Sm.  L.  Cas.  299,  316. 

12  Hoe  v.  Sanborn,  21  N.  Y.  552.    Compare  Beck  v.  Sheldon,  48  N.  Y.  865  ;  Bart- 
lett  v.  Hoppock,  34.  N.  Y.  118. 


BREACH  OF  WARRANTY.  343 

implied,  for  the  same  reason,  only  where  he  is  shown,  or  may  be 
presumed  to  have  known,  the  defect.1 

In  the  case  of  provisions,  for  human  food,  there  is  an  implied 
warranty  that  they  are  sound  and  wholesome,  if  they  are  sold  for 
domestic  consumption,2  but  not  if  they  are  sold  as  merchandise, 
and  not  for  immediate  domestic  use. 

Where  there  is  no  other  liability  as  to  quality,  none  is  implied 
from  a  warranty  of  quantity  ;  but  the  quantity  is  made  up  by  un- 
sound and  sound  together.3 

In  aid  of  evidence  of  an  implied  warranty,  the  buyer  may  tes- 
tify to  the  fact  that  he  purchased  relying  on  the  existence  of  the 
supposed  quality.4 

Where  the  warranty  is  an  implied  one,  or  the  breach  is  a  con- 
dition of  the  sale,  as  distinguished  from  a  warranty,  retaining  the 
article  after  opportunity  to  ascertain  the  defect,  raises  a  presump- 
tion of  acquiescence  in  the  quality,5  which  is  usually  conclusive, 
unless  induced  by  fraud.6  If  fraudulent  acts  inducing  acceptance 
are  alleged,  and  proved,  it  is  no  objection  that  other  such  acts  also 
alleged  remain  unproved.7 

75.  —  on  sale  partly  or  wholly  Executory^ — An  executory 
contract,  unless  the  circumstances  indicate  a  different  intent,  im- 
plies a  warranty  that  the  thing  delivered  shall  be  of  such  quality 
as  to  be  merchantable  or  salable — that  is,  at  least  of  medium  qual- 
ity or  goodness.8 

7G.  Sale  by  Sample.'] — The  mere  exhibition  of  a  sample  at  the 
time  of  sale  is  not  evidence  of  a  sale  by  sample ;  it  is  evidence 
only  of  a  representation  that  the  sample  has  been  taken  from  the 
bulk  in  the  usual  way.9  If  such  a  sale  was  not  expressly  agreed  to 
be  by  sample,  it  is  a  question  of  intent  whether  it  was  a  sale  by 
sample.10 

A  sale,  though  evidenced  by  a  bill  of  parcels,11  or  a  bought  and 
sold  note,12  not  referring  to  a  sample,  may  be  shown  by  parol  to 
have  been  by  sample,  especially  if  the  designation  in  the  writing 
is  not  a  sufficient  description  ; 1S  and  evidence  of  the  usage  of  the 


1  Hoe  y.  Sanborn,  21  N.  Y.  652.     Compare  Beck  v.  Sheldon,  48  N.  Y.  365;  Bart- 
lett  v.  Hoppock,  34  N.  Y.  118. 

9  Van  Bracklin  v.  Fonda,  12  Johns.  468;  Jones  v.  Murray,  3  Monr.  (Ky.)  83; 
Moses  v.  Mead,  5  Den.  617  ;  and  see  Divine  v.  McCormick,  60  Barb.  116. 

3  Jones  v.  Murray,  3  Monr.  (Ky.)  83. 
Ross  v.  Terry,  63  N.  Y.  615. 
Reed  v.  Randall,  29  N.  Y.  358. 
Dutchess  Co.  v.  Harding,  49  N.  Y.  324. 
Id. 

Howard  v.  Hoey,  23  Wend.  350;  Renaud  v.  Peck,  2  Hilt.  137  ;  Lawlon  v.  Kiel, 
61  Barb.  65b;  Hamilton  v.  Ganyard,  2  Abb.  Ct.  App.  Dec.  314,  affi'g  34  Barb.  204. 
Compare  Chandelor  v.  Lopus,  l'gm.  L.  Cas.  299,  318  [251.] 

9  Waring  v.  Mason,  18  Wond.  425,  434~;  Hargous  v.  Stone,  5  N.  Y.  85,  90. 

10  Waring  v.  Mason  (above). 

11  Bradford  v.  Manly,  13  Mass.  139. 

"  Boorman  v.  Jenkins,  12  Wend.  666 ;  18  Id.  435;  Koop  v.  Handy,  41  Barb.  454. 
13  Pike  v.  Fay,  101  Muss.  134.     Otherwise  under  special  contract.     Thomas  v. 
Hunt,  4  Abb.  Ct.  App.  Dec.  416. 


344  ACTIONS  AND  DEFENSES  ON 

trade  to  make  all  such  sales  by  sample,  is  competent  for  this  pur- 
pose.1 But  if  the  circumstances  of  the  sale  are  such  that  there 
was  no  express  warranty,  and  the  law  does  not  imply  one,  a  war- 
ranty cannot  be  established  (even  to  the  extent  of  conformity  to 
samples  exhibited),  by  mere  proof  of  a  usage  of  the  trade  to  con- 
tract, with  such  warranty,  in  the  manner  proven.2  Whether  the 
sale  was  by  sample  or  not,  is  a  question  of  fact,  on  which  evidence 
of  usage  is  competent ;  but  the  liability  resulting  is  a  question  of 
law,  on  which  usage  can  have  no  weight.  But  no  usage  can  be 
sustained  in  opposition  to  the  established  principles  of  law,  so  as 
make  the  seller  of  manufactured  goods,  by  sample,  liable  to  the 
purchaser  for  damages  occasioned  oy  latent  defects  in  the  goods 
sold,  not  discoverable  either  in  them  or  the  sample  by  ordinary 
care.8  Sale  by  sample,  and  warranty,  may  both  be  proved,  and 
one  does  not  necessarily  merge  or  supersede  the  other.4  Sale  by 
sample  is  only  one  kind  of  warranty,  and  does  not  preclude  others. 
To  have  the  effect  of  proving  sale  by  sample,  the  evidence 
must  show  that  the  parties  mutually  understood  that  they  were 
dealing  with  the  sample  upon  an  agreement  on  the  part  of  the 
seller  that  the  bulk  of  the  commodity  corresponded  with  the 
sample.5  If  the  sale  is  by  agent,  in  the  ordinary  course  of  trade, 
special  authority  to  use  a  sample,  or  otherwise  warrant,  need  not 
be  proved,  even  though  the  agency  be  special.6 

Y7.  Presumption  of  knowledge.] — The  law  presumes  that 
every  dealer  in  articles  brought  to  market  is  acquainted  with  all 
the  circumstances,  such  as  tendencies  to  deterioration,  usually 7  at- 
tendant on  cargoes  composed  of  those  articles  ;  but  a  mere  dealer 
is  not  presumed  to  know  the  precise  quality  of  goods  of  a  par- 
ticular brand.8 

78.  Parol  evidence  of  warranty  on  written  saleJ] — If  the  par- 
ties have  reduced  their  contract  to  writing,  the  instrument  can- 
not be  varied  by  oral  evidence  of  a  warranty9  or  representation10 
not  expressed  or  implied  in  the  writing,11  unless  fraud  be  shown, 


1  Syers  v.  Jonas,  2  Exch.  111. 
s  Beirne  v.  Dord.  5  N.  Y.  102. 

3  Randall  v.  Smith,  63  Me,  105,  s.  c.  18  Am.  R.  200,  and  cases  cited;  s.  p.  Bar- 
nard v.  Kellogg,  10  Wall.  K83. 

4  Murray  v.  S-'mith,  4  Daly,  273  ;  and  see  Pands  v.  Taylor,  6  Johns.  410;  but  a 
•written  agreement  of  sale  mny  exclude  oral  evidence  of  warranty. 

6  Beirne  v.  Dord,  5  F.  Y.  96. 

*  Andrews  v.  Kneeland,  6  Cow.  354  ;  see  also  Boonnan  v.  Jenkins,  12  Wend.  672. 

7  Hargous  v.  Stone,  5  N.  Y.  94. 

8  Dounce  v.  Dow,  57  N.  Y.  16,  rev'g  6  Supm.  Ct.  (T.  &  C.)653. 

*  Dean  v.  Mason,  4  Conn.  428. 

10  Rice  v.  Forsyth,  41  Md.  389. 

11  Pickering  T.  Dowson.  4  Taunt.  779 ;  Benj.  on  S.  §  621.     But  compare  para- 
graph 9.     So  held  of  a  bill  of  sale,  Mumford  v.  McPherson,  1  Johns.  414;  Pender 
V.  Forbes,  1  Dev.  <fe  B.  250;  Sparks  v.  Messick,  65  No.  Car.  440:  of  an  assignment 
of  a  patent  right,  Van  Ostrand  v.  Reed,  1  Wend.  424  ;  Rose  v.  Hurley,  39  Ind.  77: 
<tf  a  letter,  "Whitmore  v.  South  Boston  Iron  Co.  2  Allen,  62,  s.  c.  1  Am.  L.  Reg.  N. 


BREACH  OF  WARRANTY.  345 

nor  can  the  warranty  be  established  by  extrinsic  written  evi- 
dence of  a  prior  representation,  such  as  the  letters  of  negotia- 
tion,1 or  the  advertisement  of  sale.2  The  writing  may  be  deemed 
to  contain  the  whole  contract.3  But  this  rule  is  greatly  limited, 
where  the  statute  of  frauds  does  not  require  a  writing,4  and  the 
instrument  is  one  which  does  not  purport  to  embody  all  the 
terms  of  the  contract.5  A  bill  of  parcels,  or  sold  note,  given  ap- 
parently as  a  receipt  for  the  price,6  or  an  invoice  made  out  by  the 
seller  after  an  oral  warranty,7  is  not  a  contract  within  the  rule, 
and  does  not  preclude  evidence  of  oral  warranty.  And  if  there 
be  a  written  contract,  the  fact  does  not  preclude  evidence  of  a 
warranty  made  by  parol,  subsequent  to  the  execution  of  the  writ- 
ten contract.8 

An  express  warranty  does  not  preclude  an  implied  warranty 
to  the  same  effect.9  And  an  express  warranty  may  be  helped  out 
or  enlarged  by  a  warranty  implied  from  knowledge  of  the  pur- 
pose for  which  the  thing  was  ordered.10 

79.  Parol  evidence  to  explain  warranty.'] — Upon  principles 
already  stated,  ambiguous  expressions  in  the  warranty  may  be 
explained  by  parol.11 

80.  Variances  in  the  contract,  and  breach.~] — Variances  be- 
tween the  allegation  and  proof,  in  respect  to  other  parts  of  the 
contract, — the  title  to  the  goods,12  the  consideration  of  the  sale,13 


S.  403  ;  and  of  the  printed  conditions  of  sale  subscribed  by  the  auctioneer,  Powell  v. 
Edmunds,  12  East,  6.  Otherwise  of  unsigned  conditions.  Eden  v.  Blake,  13  Mt-es. 
&  W.  614.  Where  the  sale  was  not  in  writing,  a  warranty  may  be  proved,  though 
made  during  negotiations,  some  days  before  the  sale.  \Vilmotv.  Hurd,  11  Wend. 
684. 

1  Randall  v.  Rhodes,  1  Curt.  C.  Ct.  90. 

s  Mumford  v.  McPherson  (above). 

3  Van  Ostrand  v.  Reed,  1  Wend.  427. 

4  ISee  1  Pars,  on  Contr.  547. 

6  Thus  where  the  writing  consists  of  a  written  undertaking  to  ship,  with  an  ac- 
knowledgment of  previous  receipt  of  payment,  parol  evidence  is  admissible  to  show 
what  the  terms  of  contract  of  sale  were,  and  that  the  goods  were  those  actually  or- 
dered. Hogins  v.  Plympton,  11  Pick.  97,  SHAW,  Ch.  J. 

8  filkins  v.  Whyland,  24  N.  Y.  338 ;  24  barb.  379  ;  Allen  v.  Pink,  4  Mees.  &  W. 
14<X  Centra,  where  the  statute  of  frauds  required  the  bill.  Lamb  v.  Crafts,  12 
Mete.  353. 

I  Foot  v.  Bentley,  44  N.  Y.  166. 

8  Bresvster  v.  Countryman,  12  Wend.  446.. 

"  Ross  v.  Terry,  63  N.  Y.  615.  Contra,  Whitmore  v.  South  Boston  Iron  Co.  2 
Allen,  52,  60,  s.  o.'l  Am.  L.  Reg.  N.  S.  403.  Compare  Boothby  v.  Scales,  27  Wis. 
626. 

10  See  Parks  v.  Morris  Tool  Co.  54  N.  Y.  586,  affi'g  4  Lnns.  103,  8.  c.  60  Barb.  140. 

II  Paragraphs  9,  10.     Thus  on  a  warranty  that  a  machine  could  do  certain  work 
"with  a  good  team,"  parol  evidence  of  the  declarations  of  the  party  is  admissible,  to 
B'IOW  whether  u  two  hor.-e  or  four  horse  team  was  meant.     Sanson  v .  Madigan,  15 
Vt.  144.     And  see  Pike  v.  Fuy,  101  Mass.  134.     Otherwise  of  evidence  contradicting 
the  language.     Yates  v.  P.ym,  6  Taunt.  446. 

13  StarrV.  Anderson,  19  Conn.  858. 

18  Smith  v.  Battams,  L.  J.  26  Exch.  232 ;  Turner  v.  Huggins,  14  Ark.  21.  The 
fact  that  the  money  was  paid  by  plaintiffs  agent  who  had  not  been  reimbursed,  is 
not  material.  Indianapolis,  Peru  <fc  Chicago  Railw.  Co.  v.  Tyng,  63  N.  Y.  653,  affi'g 
2  Hun,  811,  a  o.  4  Suprn.  Ct.  (T.  &  C.)  524. 


346  ACTIONS  AND  DEFENSES  ON 

and  the  like, — are  of  secondary  importance  in  proving  the  war- 
ranty, and  are  indulgently  treated. 

Under  the  allegation  of  warranty  and  breach,  evidence  of  de- 
fendant's subsequent  promise  to  cure  the  defect  is  admissible, 
and  he  may  be  held  liable  on  that  promise ; 1  but  mere  proof  of  a 
subsequent  agreement  to  rescind  the  original  contract  and  return 
the  money,2  is  not  sufficient,  at  least  without  amendment. 

81.  Breach."] — To  sustain  an  action  upon  a  warranty,  it  is  not 
necessary  to  prove  that  all  the  representations  made  by  defendant 
were  false,  or  actionable.  It  is  enough  to  prove  that  any  were 
so.3  And  it  is  not  necessary  to  prove  that  the  seller  knew  of  the 
defect.4  The  question  whether  the  article  corresponds  with  the 
warranty,  is  usually  one  for  the  jury.3  If  the  qualities  of  the 
article  be  proved  by  the  testimony  of  a  witness  to  whom  it  has 
been  submitted  for  inspection,  there  must  be  direct  evidence  that 
the  thing  of  which  the  witness  speaks  was  the  same  as  that  deliv- 
ered or  offered.6  If  fraud  is  alleged,  evidence  that  other  goods 
were  fraudulently  sold  by  the  seller  to  other  persons,  is  relevant 
to  the  question  of  scienter  within  the  limits  marked  by  the  rules 
applicable  in  actions  for  deceit.  So  if  the  seller  has  adduced 
evidence  that  he  never  made  or  sold  inferior  goods  to  any  one, 
evidence  of  sales,  etc.,  to  third  persons  is  competent  in  rebuttal.7 
And  in  other  cases,  on  a  conflict  of  evidence  as  to  quality,  evi- 
dence of  the  bad  quality  of  other  things  of  the  same  production 
and  condition  of  keeping,  may  be  relevant  as  raising  a  presump- 
tion that  the  thing  in  question,  parcel  of  the  same  batch  or  crop, 
had  the  like  alleged  detect.8  Where  the  article  is  contracted  for, 
to  serve  a  specified  use,  evidence  is  admissible  of  the  difference 
in  the  results  produced  in  such  use,  by  the  sample  or  model  or- 
dered, and  the  imitation,  as  corroborative  01  their  inherent  differ- 
ence.9 If  the  parties  agreed  on  submitting  tie  question  of  con- 
formity to  the  warranty  to  the  arbitrament  of  a  third  person,10  or 
to  a  specific  test,11  the  decision  so  had,  is  conclusive,1"  unless  fraud 
or  bad  faith  is  shown.13  Where  the  thing  sold  consists  of  a  large 
quantity  of  merchandise,  it  is  not  necessary  in  the  first  instance 


1  Dennis  v.  Coman,  61  N.  Y.  642. 

3  Dickinson  v.  Lane,  107  Mass.  548. 

*  Sweet  v.  Bradley,  24  Barb.  549. 

4  Carley  v.  \Vilkins,  6  Barb.  557.     Otherwise  as  to  a  mere  representation,  as  dis- 
tingtvshed  from  a  warranty.     Id.     Compare  Edick  v.  Crim,  10  Id.  445. 

5  Even  if  the  thing  be  produced  in  court.     Morton  v.  Fairbanks,  11  Pick.  868. 

*  Perry  v.  Smith,  22  Vt,  301. 

7  Durst  v  Burton,  2  Lans.  137,  affi'd  in  47  N.  Y.  167. 

8  Buchanan  v.  Collins,  42  Ala.  419. 

»  Tilton  v  Miller  A  Co.  f>6  Penn.  St  388,  s.  c.  5  Am.  R.  373. 

10  McParlin  v.  Boynton,  8  Hun,  449. 

11  Sharpe  v.  Great  Western  Hw.  9  Mees  <fe  W.  6,  8.  c.  2  Am.  Rw.  Cas.  722. 

14  See  for  the  cases  ou  the  general  question,  Schencke  v.  Rowell,  3  Abb.  New  Cas. 
42. 

18  See  Bowery  Nat.  Bank  v.  Mayor,  <fec.  63  N.  Y.  363,  rev*g  8  Hun,  63  a 


BREACH  OF  WARRANTY.  347 

to  prove  that  every  lot  or  package  was  examined.  It  is  enough 
that,  of  a  quantity  of  similar  parcels,  a  reasonable  number  were 
opened  and  all  found  alike  defective.1  The  general  character  or 
quality  of  the  thing  beyond  the  limits  of  that  called  for  by  the 
warranty,  is  not  relevant.2 

In  an  action  on  a  warranty  of  title  to  a  chattel,  breach  is  usu- 
ally proved  by  an  eviction  by  recovery ; 8  but  the  buyer  may  re- 
cover on  proof  of  a  demand  made  on  him  by  virtue  of  a  para- 
mount claim  to  which  he  voluntarily  surrendered ;  in  such  case, 
however,  the  burden  of  proving  the  claim  is  on  him.4  If  eviction 
by  recovery  is  relied  on,  the  judgment  against  the  buyer  is 
competent.*  It  has  been  held  incumbent  on  the  defendant  to 
plead  and  prove  fraud  or  collusion  in  the  judgment  of  eviction,  if 
he  would  avoid  its  effect,  even  where  the  plaintiff  did  not  attempt 
to  prove  notice  of  the  suit  to  the  warrantor ; 6  and  if  the  War- 
rantor had  adequate  notice  of  the  action,  and  an  opportunity  to 
litigate  it,  the  "judgment  recovered  on  the  merits  is  conclusive 
against  him.7  But  mere  knowledge  of  the  action  and  a  notice  to 
attend  the  trial  are  not  enough.8 

82.  Opinions  of  witnesses.'] — "Where  a  qualified  expert  is  ex- 
amined as  to  the  quality  of  the  article,  it  is  competent  to  ask  the 
general  question — as  for  instance,  whether  the  machine  in  ques- 
tion was  made  in  a  workmanlike  manner.  The  facts  may  be 
called  for  in  detail,  and  in  the  case  of  any  other  than  a  skilled 
witness,  they  should  be  called  for ; 9  but  in  examining  a  skilled 
witness,  the  party  may,  if  he  choose,  rest  upon  the  general  state- 
ment alone,  and  leave  it  to  his  adversary  to  call  for  more  specific 
objections  to  the  work  by  cross-examination,  and  he  has  a  right 
to  do  so.10 

A  liberal  rule  is  applied  in  regard  to  opinions  as  evidence 
as  to  diseases  of  animals,  as  it  is  rare  that  persons  are  found 
who  make  the  treatment  of  diseases  of  domestic  animals  a  dis- 
tinct profession,  or  attain  to  great  skill  or  science  therein.  The 
best  skill  and  science  that  can  be  expected  will  be  the  evidence 
of  persons  who  have  had  much  experience,  and  have  been  for 
years  made  acquainted  with  such  diseases  and  their  treatment.11 


1  Renaud  v.  Peck,  2  Hilt,  137. 

2  Thus  under  a  warranty  that  a  furnace  should  heatth.3  building  to  70°,  the  re- 
quisite degree  of  heat  for  ordinary  dwellings  is.  irrelevant.    Bristol  v.  Tracy,  21  Barb. 
236. 

8  And  it  was  formerly  held  that  this  was  the  only  evidence,  unless  there  waa 
affirmative  proof  of  guilty  knowledge.     Case  v.  Hall.  24  Weud.  Iu3. 

4  Bordwell  v.  Collie,  45  N.  Y.  494,  affi'g  1  Lans.  141. 

5  Atkins  v.  Hoslcy,  3  Supra.  Ct.  (T.  &  C.)  322. 

8  Blasdale  v.  Babcock,  1  Johns.  617;  Barney  v.  Dewey,  13  Id.  224. 

7  Fake  v.  Smith,  2  Abb.  Ct.  App.  Dec.  76. 

8  Somers  v.  Schmidt,  24  Wis.  417,  8.  c.  1  Am.  R.  191. 
*  Strevel  T.  Hempstead,  44  Barb.  618. 

10  Curtis  T.  Gano,  26  N.  Y»  426;  Beekman  v.  Johnson.  85  Ala.  252. 

11  Slater  v.  Wilcox,  67  Barb.  604.     Compare  McDonald  v.  Christie,  42  Barb.  86; 


348  ACTIONS  AND  DEFENSES  ON 

The  qualification  of  the  witness  is  a  question  of  law  for  the 
court ;  but  in  proportion  as  his  character  as  an  expert  is  con- 
tested, it  is  important  that  his  testimony  should  be  confined  to 
facts  rather  than  opinion.  In  a  case  of  breach  of  warranty,  by 
disease,  a  medical  witness,  who  has  stated  that  he  has  read  various 
standard  authors  on  the  subject  of  disease,  and  has  given  his  own 
opinion  in  respect  to  the  character  of  the  disease  of  which  the 
animal  died,  may  be  asked :  "  What  is  the  best  opinion,  according 
to  the  best  medical  authority  ? " 1 

83.  Admissions  and  declarations.'] — Evidence  that  the  buyer 
on  being  complained  to  that  he  had  given  a  warranty,  and  that  it 
was  broken,  only  denied  the  breach,  is  sufficient  evidence  to  sus- 
tain a  finding  that  he  gave  the  warranty.2  Whether  declarations 
of  an  agent  are  competent  depends  on  the  test  applicable  in  other 
cases.  An  authority  to  receive  payment  for  goods  sold,  does  not 
make  the  agent's  declarations  in  regard  to  the  condition  of  the 
goods,  evidence  against  his  principal.3  But  where  one  is  em- 
ployed by  the  seller  to  remedy  the  alleged  defect  after  delivery, 
his  declarations,  made  as  part  of  the  res  gestce,  while  engaged  in 
the  work,  are  competent.4 

84  Omission  to  return  the  article.~] — If  a  warranty  has  been 
proved,  keeping  the  goods,  delaying  to  give  notice  of  the  defect, 
&c.,  may  furnish  a  strong  presumption  against  an  alleged  breach 
of  warranty ;  but  cannot  bar  the  buyer  from  suing  for,  or  recoup- 
ing his  damages  for  such  breach,  if  proved.5 

85.  Damages!} — A  breach  having  been  proved  there  must  be 
some  evidence-  of  difference  in  value  between  the  article  as  fur- 
nished and  the  article  as  agreed  to  be  furnished.6  A  mere  offer 
to  prove  the  value  of  the  thing  furnished,  unconnected  with  evi- 
dence of  that  of  the  thing  agreed  for,  may  be  excluded.7  The 
witness  cannot  speak  directly  to  the  amount  of  damages  recover- 
able ;  but,  if  the  thing  have  a  market  value,  a  qualined  witness 
may  give  an  opinion  of  its  value,  and  of  the  difference  between 
its  actual  value,  and  what  would  have  been  its  value  had  it  corre- 
sponded to  defendant's  representations.8  If  the  thing  or  its 


Joy  v.  Hopkins,  5  Den.  84;  Willis  v.  Quimby,  11  Fost.  (N.  H.)  485.     Contra,  Graves 
v.  Moses,  13  Minn.  335 ;  and  see  Spear  v.  Richardson,  34  N.  H.  428. 

1  Pierson  v.  Hoag,  47  Barb.  243. 

2  Miller  v.  Lawton,  15  C.  B.  N.  S.  834;  Salmon  v.  Ward,  2  Carr.  &  P.  211. 

3  Hyland  v.  Sherman,  2  E.  D.  Smith,  234. 

4  Kimball  Manuf.  Co.  v.  Vroman,  85  Mich.  310. 

8  Muller  v.  Eno,  14  N.  Y.  (4  Kern.)  597 ;  Feilder  v.  Starkin,  1  H.  Blackst.  17; 
Coner  v.  Dempsey,  49  N.  Y.  665 ;  Suieltzer  v.  White,  92  U.  S.  (2  Otto),  390,  395. 
But  under  executory  contract,  acceptance  after  opportunity  to  examine,  waives  ob- 
jections to  patent  defects.  Gay  lord  Manuf.  Co.  v.  Allen,  53  N.  Y.  515.  Compare 
Grirnoldby  v.  Wells,  L.  R.  10  C/P.  391,  a.  c.  12  Moak.  Eng.  R.  451,  and  cases  cited. 

«  Fales  v.  McKeon,  2  Hilt.  63. 

7  Leonard  v.  Fowler,  44  N.  Y.  296. 

8  Rogers  v.  Ackerman,  22  Barb.   134;  Nickley  v.  Thomas,  Id.  652;  Miller  v. 
Smith,  112  Mass.  470. 


BREACH  OF  WARRANTY.  349 

condition  be  such  that  it  has  no  known  or  market  value,  the  dam- 
ages are  necessarily  special,  and  the  items  of  actual  loss  should  be 
proved,  and  the  whole  left  to  the  jury.1  To  Charge  with  conse- 
quential damages  there  should  be  evidence  either  that  the  object 
of  the  buyer  was  specially  brought  to  the  notice  of  t he  seller,8  or 
that  circumstances  were  known  to  the  seller,  from  which  the  in- 
tention ought  in  reason  to  be  inferred,  so  that  the  object  may  be 
taken  to  have  been  within  the  contemplation  of  both  parties.' 

In  an  action  for  breach  of  the  warranty  implied  or  expressed 
in  the  assignment  of  a  judgment,  the  prima  facie  value  of  the 
judgment  is  the  amount  of  money  which  the  debtor  in  the  judg- 
ment appears  liable  to  pay  thereon.4  The  amount  of  the  consid- 
eration of  the  assignment  is  immaterial.5  But  evidence  of  the 
less  value  of  property  which  could  have  been  taken  on  execution 
at  the  time  of  the  assignment,  may  be  competent  in  nfitigation.6 
The  expenses  of  attempting  to  enforce  the  judgment  against  one 
who  had  been  released,  if  pleaded,  are  recoverable.7 

86.  Disproof  of  implied  warranty.'] — Proof  of  express  and 
unqualified8  refusal  to  warrant,  negatives  the  implied  warranty 
that  otherwise  might  arise.9     The  implied  warranty  of  title,  and 
the  implied  warranty  of  amount  unpaid  upon  a  security  assigned, 
rest  upon  the  presumption  of  law  that  the  vendor  knows  the 
facts  which  he  impliedly  warrants ;  and  this  is  a  conclusive  pre- 
sumption, and  cannot  be  contradicted.10 

87.  Buyer's  knowledge  of  defect.] — In  an  action  on  a  written 
warranty  of  soundness  of  a  chattel,  parol.  evidence  is  admissible, 
to  show  that  the  defects  complained  of  were  made  known  to  the 
plaintiff  at  the  time  of  the  sale.     A  warranty  does  not  extend  to 
defects  which  are  visible.11     And  when  it  is  proved  affirmatively, 
that  the  purchaser  knew  of  the  defect  at  the  time  of  the  sale,  he 
cannot  recover  damages.12    But  an  offer  to  show  that  he  had 
means  of  knowledge  is  not  enough.13 

88.  Sellers  good  faith.~\ — A  breach  of  warranty,  as  distin- 
guished from  a  mere  false  representation  having  been  proved, 
evidence  of  facts  showing  that  defendant  made  it  under  misin- 
formation14 and  in  good  faith,  is  irrelevant. 


1  Whitney  v.  Taylor,  54  Barb.  536. 

s  As  in  Messmore  v.  N.  Y.  Shot  and  Lead  Co.  40  N.  Y.  422. 

3  Smith  v.  Green,  L.  R.  1  C.  P.  Div.  94,  s.  o.  16  Moak*s  Eng.  443. 

4  Furniss  v.  Ferguson,  34  N.  Y.  485,  affi'g  3  Robt.  269. 
8  Sweet  v.  Bradley,  24  Barb,  549. 

'  Jansen  v.  Ball,  6  Cow.  628. 

1  Westoh  v.  Chamberlain,  56  Barb.  415. 

8  Wood  v.  Smith,  5  M.  <fc  Ry.  124. 

9  So  held  as  to  genuineness  of  note.     Bell  v.  Dagg,  60  N.  Y.  528. 

10  Furniss  v.  Ferguson,  34  N.  Y.  485,  affi'g  3  Robt.  269. 

11  Schuyler  v.  Russ,  2  Cai.  202. 

Ig  Chandelor  v.  Lopus,  1  Smith's  L.  Cas.  299,  320,  and  cases  cited. 

13  Furniss  v.  Ferguson,  34  N.  Y.  485,  affi'g  3  Robt.  269. 

14  Brisbane  v.  Parsons,  33  N.  Y.  332. 


350         ACTIONS  AND  DEFENSES  ON  CONTRACTS   OF  SALE. 

89.  Former  adjudication^ — Judgment  in  an  action  of  deceit, 
for  a  false  statement  as  to  quality,  is  a  bar  to  an  action  of  con- 
tract on  a  false  warranty  of  the  same  quality,  and  so  of  the  con- 
verse.1 Judgment  in  an  action  for  the  price  is  also,  if  the  buyer, 
by  his  answer  in  that  action  or  his  course  on  the  trial  of  it,  ad- 
mitted the  validity  of  the  seller's  claim ;  otherwise  not.2 


1  2  Whart.  Ev.  §  779,  citing  Ware  v.  Percival,  61  Me.  391 ;  Norton  v.  Doherty, 
8  Gray,  872.  But  partly  contra,  now  by  N.  Y.  Code  Civ.  Pro.  §  629. 

8  Whart.  Ev.  §  790,  citing  Davia  v.  Talcott,  12  N.  Y.  184;  Mondel  v.  Steel,  8 
Mees.  &  W.  858 ;  Davis  v.  Hedges,  L.  R.  6  Q.  B.  687 ;  Bascom  v.  Manning,  62  N.  H. 
132;  Burnett  v.  Smith,  4  Gray,  50;  Ihmseu  v.  Onnsby,  82  1'cnn.  St.  198. 


CHAPTEE  xvrr. 

ACTIONS  FOR  USE  AND  OCCUPATION  OF  REAL  PROPERTY. 

1.  Grounds  of  the  action.  5.  Defendant's  occupation. 

2.  The  relation  of  landlord  and  tenant.  6.  Measure  of  recovery. 

3.  Express  contract.  7.  Admissions  and  declarations. 

4.  Parties. 

1.  Grounds  of  the  action.']— The  gist  of  the  action  is  that  de- 
fendant has  had  the  use  and  occupatipn  of  plain  tiff's  real  prop- 
erty, by  virtue  of  an  agreement  therefor,  express  or  implied, 
made  between  them,  under  which  plaintiff  is  entitled  to  a  reason- 
able compensation. 

2.  The  relation  of  landlord  and  tenant.'] — There  must  be  proof 
that  the  conventional  relation  of  landlord  and  tenant  existed.1  It 
is  not  enough  to  show  privity  of  estate  ;    there  must  be  privity 
of  contract.2     The  contract,  however,  need  'not  be  expressed,  but 
may  be  implied  from  circumstances,  such  as  defendant's  entering, 
or  holding  over,  after  notice  from  plaintiff  that  he  should  expect 
a  rent ; s  or  from  the  defendant's  recognition  of  the  plaintiff  as 
landlord,  as,  for  example,  by  repeatedly  paying  rent  to  the  agent 
of  the  plaintiff,  and  taking  receipts  from  him  as  landlord.4     An 
implied  obligation  to  pay  is  not,  however,  raised  from  mere  pos- 
session ;  there  must  be  an  implied  agreement  for  the  use.     The 
evidence  must  imply  that  the  relation  of  landlord  and  tenant  was 
created  by  agreement  or  understanding  of  the  parties.5     Where 
defendant  has  entered  and  occupied  by  permission  of  plaintiff, 
without  any  express  agreement,  the  law  implies  a  promise  on  his 
part  to  pay  a  reasonable  compensation,  but  such  presumption  does 
not  arise  when  an  arrangement  is  proven  showing  that  the  parties 
did  not  intend  to  constitute  the  relation  of  landlord  and  tenant.6 
Evidence  that  after  the  determination  of  a  lease,  the  tenant  held 
over  and  paid  rent,  is  conclusive  evidence  of  a  tenancy,7  and  the 


1  6  Abb.  N.  Y.  Dig.  New  Ed.  54 ;  Carpenter  v.  U.  S.  17  Wall.  489,  493 ;  City  of 
Boston  v.  Binney,  11  Pick.  1 ;  Thompson  v.  Bower,  60  Barb.  463;  Dennett  v.  Penob- 
scot  Fair  Co.  67  Me.  425,  8.  c.  2  Am.  R.  58. 

*  Glover  v.  Wilson,  2  Barb.  264. 

3  Coit  v.  Planer,  4  Abb.  Pr.  N.  S.  140,  s.  c.  7  Robt.  413 ;   Despard  v.  Walbridge, 
15  N.  Y.  374. 

4  McFarlan  v.  "Watson,  3  N.  Y.  286. 

*  Id.,  and  cases  cited. 

*  Carpenter  v.  U.  S.  17  Wall.  489,  493. 

7  Rose.  N.  P.  310,  citing  Bishop  v.  Howard,  2  B.  <fe  C.  100;  and  see  Bayley  v. 
Bradley,  5  C.  B.  326.  But  where  a  tei.ant  from  year  to  year,  after  the  expiration  of 
his  landlord's  title  continued  in  possession  for  one  quarter,  and  paid  rent  for  that 

[Ml] 


352  ACTIONS  FOR  USE  AND 

action  lies  for  rent  subsequent  to  the  term,  although  the  lease  was 
sealed.1  Any  evidence  of  indebtedness  for  rent  in  an  immediately 
preceding  period  is  competent,  in  connection  with  evidence  of 
continued  occupation.2 

3.  Express  agreement^ — If  the  occupation  was  under  an  ex- 
press agreement  which  is  void  under  the  statute  of  frauds,  the 
agreement  may  be  proved  for  the  purpose  of  showing  the  in- 
tended relation  of  landlord  and  tenant.8  If,  however,  it  was 
under  a  valid  sealed  agreement  the  action  must  be  upon  the  deed 
itself.4  The  statute,5  which  permits  an  action  of  assumpsit  for 
use  and  occupation  where  the  agreement  was  express,  but  not 
by  deed,  allows  the  agreement,  i±  it  reserves  a  certain  rent,  to 
be  used  as  evidence  of  the  amount  recoverable.6  Under  the 
new  procedure,  the  distinction  between  this  action  and  an  ac- 
tion on  the  sealed  contract  is  formal ;  and  if  the  proper  parties 
are  joined,  an  amendment  may  be  allowed  at  the  trial,  if  there 
has  been  no  surprise  on  defendant,  in  not  counting  on  his  con- 
tract.7 Either  an  oral  or  unsealed  written  agreement  for  hiring, 
or,  in  case  there  was  no  express  agreement,  such  facts  as  will  raise 
an  implied  contract,  may  be  proved  under  a  general  allegation 
of  indebtedness  for  use  and  occupation.8  If  the  agreement  was 
not  made  in  writing  a  witness  may  be  asked  to  "  state  the  terms." 
It  is  not  necessary  to  ask  him  to  state  what  was  said.9  If  it  ap- 
pears from  the  plaintiff's  evidence  that  defendant  held  under  a 
written  agreement  not  produced  or  accounted  for,  plaintiff  will 
not  be  allowed  to  give  parol  evidence  of  the  holding.1'*  But  if  the 
plaintiff  has  made  out  a  prima  facie  case,  without  proof  of  the 
existence  of  a  writing,  and  defendant  seeks  to  show  that  he  held 
under  a  written  agreement,  he  must  produce  the  instrument,  01 
his  objection  is  untenable.11  To  what  extent  a  written  agreement 


quarter  to  the  reversioner,  but  quitted  at  the  end  of  it,  the  payment  is  not  evidence 
of  a  tenancy  for  more  than  the  quarter.  Id.;  citing  Freeman  v.  Jury,  M.  <fc  M.  19 ; 
Jenner  v.  Clegg,  1  M.  &  Rob.  213. 

1  Abeel  v.'Radcliff,  13  Johns.  297;  and  see  Bishop  v.  Howard,  2  B.  &  C.  100. 

s  See  Withington  v.  Warren,  12  Mete.  114;  Morris  v.  Niles,  12  Abb.  Pr.  103. 

8  See  Eccles.  Commis.  v.  Merral,  L.  R.  4  Exch.  162 ;  and  see  Greton  t.  Smith,  33 
N.  Y.  245,  affi'g  1  Daly,  380. 

4  Kiersted  v.  Orange,  <fec.  R.  R.  Co.  69  N.  T.  343,  346,  rev'g  1  Hun,  151 ;   Abeel 
v.  Radcliff,  13  Johns.  297 ;   Pierce  v.  Pierce,  25  Barb.  243.     For  the  rule  that  debt 
will  lie  for  use  and  occupation  under  a  deed,  compare  6  Am.  Law  Rev.  17,  18. 

5  11  Geo.  II.  c.  19,  §  14;  IN.  Y.  R.  S.  748,  §  26. 

'  See  Abeel  v.  Radcliff  and  Pierce  v.  Pierce  (above) ;  Williams  v.  Sherman,  7 
Wend.  109. 

I  Bedford  v.  Terhune,  30  N.  Y.  453,  s.  c.  27  How.  Pr.  422,  affi'g  1  Daly,  471. 
8  Waters  v.  Clark,  22  How.  Pr.  104;  Morris  v.  Niles,  12  Ab'j.  Pr.  103. 

'  Frost  v.  Benedict,  21  Barb.  247.  Thus  a  witness  may  testify  that  he  leased  the 
property  to  defendant  at  a  certain  rent,  reserving  the  right  to  sell  it  at  any  lime,  and 
that'defendant  accepted  it  on  such  terms.  Id. 

10  Brewer  v.  Palmer,  3  Esp.  213 ;  Ramsbottom  T.  Mortley,  2  M.  <fe  S.  445,  cited  in 
Rose.  N.  P.  334. 

II  Id.;  citing  Fielder  v.  Ray,  6  Bing.  332;  R.  v.  Padstow,  4  B.  <fc  Ad.  208;    1 
GreenL  Ev.  13th  ed.  Ill  §  87. 


OCCUPATION  OF  REAL  PROPERTY.          353 

of  lease  excludes  oral  evidence  of  the  terms  is  considered  in  con- 
nection with  Actions  on  Leases. 

4.  Parties.] — Tenants  in  common  may  join  as  plaintiffs,  upon 
evidence  that  the  tenant  has  always  paid  the  rent  to  their  joint 
agent ;  for  this  is  evidence  of  a  joint  letting.1    But  a  lessee  of 
one  tenant  in  common  is  not  liable  to  the  other  without  proof  of 
a  joint  letting  or  an  attornment.2 

The  mere  fact  that  one  of  two  joint  lessees  holds  over  does  not 
charge  both.3  But  where  two  persons  sign  an  agreement  to  be- 
come tenants,  and  one  enters  under  it,  it  may  be  presumed  that 
he  entered  for  both ;  and  use  and  occupation  against  both  will 
lie.4  The  fact  that  one  tenant  in  common  has  had  the  entire 
occupancy  of  the  common  estate,  and  his  co-tenants  have  not  oc- 
cupied it,  with  proof  of  value,  is  not  enough  to  sustain  their  ac- 
tion against  him  for  the  value  of  the  use  of  their  interests.5  Each 
is  entitled  to  occupy ;  and  the  presumption  of  law  is  that  either 
is  in  possession  under  his  own  title,  until  evidence  is  adduced 
that  he  holds  as  tenant  of  the  others.6  For  this  purpose  the  fact 
that  he  is  holding  over  after  the  expiration  of  a  lease  from  his 
co-tenants  is  not  enough.  The  fact  of  his  not  leaving  the  posses- 
sion does  not  authorize  the  inference  that  he  still  intends  to  hold 
under  the  lease  ;  the  presumption  is  that  he  holds  under  his  own 
title ;  but  this  presumption  may  be  rebutted.7 

5.  Defendant's  occupation.] — Evidence  of  an  agreement  to 
take  the.  premises  and  pay  rent,  is  not  alone  enough.8    There 
must  be  evidence  of  beneficial  enjoyment,  or  of  constructive  pos- 
session or  dominion.     It  is  not  necessary  to  prove  defendant  to 
have  been  in  manual  occupation  during  the  time  for  which  recov- 
ery is  sought.     It  is  enough  to  show  that  the  power  to  occupy 
and  enjoy  was  given  by  the  landlord  to  the  tenant.9    Hence 
(agreement  having  been  proved)  evidence  of  delivery  and  accept- 
ance of  the  key,  though  without  proof  of  continued  actual  pos- 
session, is  enough  to  sustain  a  finding ; 10  and  the  occupation  so- 
shown  will  be  presumed  to  have  continued  until  the  contrary  ap- 
pears.11   Payment  of  rent  by  defendant  to  plaintiff  is  presumptive 
evidence  of  occupation.12     Such  payment  during  the  occupancy  Q£ 

1  Last  v.  Dinn,  L.  J.  28  Ex.  94. 

*  Austin  v.  Ahearne,  61  N.  Y.  14. 

8  Draper  v.  Crofts,  15  M.  &  W.  166. 

4  Rose.  N.  P.  340,  citing  Glen  v.  Dungey,  4  Exch.  61. 

•  Everts  v.  Beach,  31  Mich.  136,  s.  c.  18  Am.  R.  169. 
6  Dresser  v.  Dresser,  40  Barb.  300. 

I  McKay  v.  Mumford,  10  Wend.  351.     NELSON,  J. 

8  Wood  v.  Wilcox,  1  Den.  37.  and  casea  cited.     Otherwise  in.  an  actiou'  on  the 
contract.     Gilhooly  v.  Washington,  4  N.  Y.  217,  affi'«r  3  Sandf.  830. 

9  Hall  v.  Western  Trans.  Co.  84  N.  Y.  284,  and  cases  cited. 

10  Id. ;  Little  v.  Martin,  3  Wend.  220. 

II  Seaman  v.  Ward,  1  Hilt,  62,  65. 

»  Bishop  v.  Howard,  2  B.  <fe  C.  100;  Harden  v.  Heaketh,  4  H.  <fe  N.  176. 

23 


354  ACTIONS  FOR  USE  AND 

a  third  person  is  presumptive  evidence  that  the  occupant  held 
under  defendant,  which  is  the  same  as  actual  occupancy  by  de- 
fendant.1 If  defendant  was  an  under-tenant,  still  an  agreement 
to  pay  rent  to  the  original  lessor  may  be  inferred  from  contin- 
uous payments  of  the  previous  rents  to  him.2  The  receipt  by  the 
defendant  of  the  rents  and  profits,  or  an  attomment  from  an 
under-tenant,  is  evidence  of  use  and  occupation  by  the  defendant.8 
Occupancy  by  a  third  person  who  was  put  into  possession  by  the 
defendant,  is  evidence  from  which  the  jury  may  infer  occupancy 
by  defendant.4  And  subleases  and  similar  writings,  made  by  de- 
fendant to  third  persons,  are  competent  evidence.8  But  there 
does  not  appear  to  be  any  authority  for  the  proposition  that  use 
and  occupation  can,  in  the  absence  of  an  actual  demise,  be  main- 
tained on  a  constructive  occupation  after  the  tenant  has  in  fact 
ceased  to  occupy,  and  has  offered  to  surrender  the  premises  to 
the  landlord.6 

If  defendant  denies  privity  with  the  occupant,  and  alleges 
possession  by  the  occupant  under  a  stranger,  evidence  of  employ- 
ment of  the  occupant  by  the  stranger  is  competent,  although  the 
transaction  was  not  had  in  plaintiffs  possession.  Defendant 
may  show  that  the  occupation  attributed  to  him  was  res  inter 
olios  actaS 

6.  Measure  of  recovery.'] — Where  there  has  been  a  lease  at  an 
annual  rent  and  the  tenant  held  over  after  its  expiration,  without 
any  new  agreement  as  to  the  rent,  the  law  implies  that  he  held 
from  year  to  year  and  at  the  original  rent.8  The  landlord  is 
not  necessarily  entitled  to  an  increased  rent,  because  the  lease 
contemplated  a  renewal  at  an  appraisement.9  But  if  the  former 
rent  was  not  upon  the  basis  of  an  annual  value,  as,  for  instance, 
where  it  was  for  a  fraction  of  a  year  only,10  or  where  it  is  only  a 
ground  rent,  the  value  of  buildings  being  otherwise  stipulated 
for,11  evidence  of  actual  value  can  be  received.  If  during  occu- 
pancy after  expiration  of  a  lease,  the  title  is  in  dispute,  and  there 
is  no  recognized  landlord,  the  rate  of  rent  fixed  by  the  lease  is 
not  conclusive  on  either  party.12 

Where  the  agreement  of  tenancy  (even  though  proved  merely 
by  the  tenant's  tacit  assent  to  terms  stated  by  the  lessor),  fixed 


J  Moffatt  v.  Smith,  4  N.  Y.  126. 

8  McFarian  v.  Watson,  3  N.  Y.  286. 

8  Rose.  N.  P.  338,  citing  Neal  v.  Swind,  2  C.  «fc  J.  377. 

4  Dimock  v.  Van  Bergen,  12  Allen,  661. 

6  Cornwall  v.  Hoyt,  7  Conn.  420,  428. 

«  Rose.  N.  P.  337. 

T  Lewis  v.  Havens,  40  Conn.  361.    For  the  same  principle  see  p.  334  of  this  voL 

8  Abeel  v.  Radcliff,  15  Johns.  606. 

•  Holsman  v.  Abrams,  2  Duer,  436. 

10  Evertson  v.  Sawyer,  2  Wend,  607. 

11  Abeel  v.  Radcliff  (above). 

19  Van  Brunt  v.  Pope,  6  Abb.  Pr.  N.  S.  217. 


OCCUPATION  OF  REAL  PROPERTY.  355 

the  rent  for  the  period  in  question,  evidence  of  actual  value  is 
irrelevant.1  If  defendant  occupied  under  a  lease  fixing  the  rent, 
the  fact  that  the  lease  was  not  valid  as  against  him,  for  example, 
by  reason  of  want  of  sealed  authority  in  the  agent  who  executed 
it,  does  not  prevent  its  use  against  him  as  furnishing  an  admission 
establishing  the  measure  of  recovery.3  If  one  holding  over  under 
a  prior  lease  retains  only  a  part  of  the  premises,  or  if  part  of  the 
premises  have  been  recovered  from  the  tenant  by  title  para- 
mount, plaintiff  may  recover  a  reasonable  compensation  for  the 
part  defendant  enjoyed.3 

7.  Admissions  and  declarations. .] — Evidence  that  a  bill  for 
the  rent  was  presented  to  defendant,  and  that  he  promised  to 
pay  it,  is,  in  connection  with  very  slight  evidence  of  occupation, 
sufficient  to  sustain  a  verdict.4  If  a  valid  agreement  of  hiring  be 
proven,  defendant's  general  admissions  of  occupation  may  be  re- 
zerred  to  that  agreement ;  but  if  it  be  shown  to  be  void,  the  bur- 
den is  on  the  tenant  of  proving  that  the  occupation  referred  to 
was  under  that  agreement,  if  he  relies  on  it  to  defeat  the  action.5 
Acts  and  declarations  characterizing  possession  may  be  proven ; 6 
but  the- meaning  of  the  terms  of  a  written  lease  cannot  be  varied 
by  the  declarations  of  the  parties  as  to  their  understanding  of 
them.7 


1  Despard  v.  Walbridge,  1 5  N.  Y.  374. 
8  Morrell  v.  Cawley,  17  Abb.  Pr.  76. 

8  Christopher  v.  Austin,  11  N.  Y.  216,  affi'g  2  E.  D.  Smith,  203.     As  to  a  mere 
trespress  by  the  landlord,  see  Lounsbery  v.  Snyder,  31  N.  Y.  614. 
«  Tread  well  v.  Bruder,  3  E.  D.  Smith,  596. 
8  Buell  v.  Cook,  6  Conn.  206.     Otherwise  if  valid. 

•  Corbett  v.  Costello,  8  La.  Ann.  427. 

*  Bigelow  v.  Collamore,  5  Cush.  226. 


CHAPTEE  XVIII. 

ACTIONS  FOR  THE  HIRE  OF  PERSONAL  PROPERTY. 
1.  Agreement  to  pay.  2.  Measure  of  recovery. 


1.  Agreement  to  ^ay."]  —  In  the  absence  of  evidence  that  the 
use,  by  one  person,  ot  the  chattels  of  another,  was  intended  to  be 
gratuitous,  the  law  implies  a  promise  to  pay  fair  value  of  such 
use.     The  fact  that  such  use  was  under  the  mutual  expectation 
that  the  user  would  buy  them,  does  not  raise  a  presumption  that 
the  use  was  gratuitously  given.1    Declarations  of  either  party  or 
his  agent,  which  form  part  of  the  res  gestm  of  the  delivery  or 
return  of  the  property  are  competent,  if  relevant  to  the  ques- 
tion.8   Evidence  that  defendant  after  being  informed  that  plaint- 
iff's charge  would  be  at  a  specified  rate  for  the  time,  took  the 
thing  into  his  possession  and  kept  it  for  a  certain  time  is  suffi- 
cient prima  facie?     But  if   plaintiff  relies  on  an  executory 
agreement,  he  may  be  required  to  prove  readiness  and  offer  to 
perform.4 

The  general  rules,  elsewhere  stated  as  applicable  to  proof  of 
agreements  for  sale  of  goods,  and  for  work,  labor  and  services, 
apply  to  these  contracts.5 

2.  Value.']  —  If  there  is  uncontradicted  evidence  of  an  express 
contract  fixing  the  rate  of  compensation,  evidence  of  value  is 
irrelevant.6    If  the  rate  was  not  fixed,  evidence  of  the  value  of 
the  article  before  and  after  the  use,  is  competent  on  the  value  of 
its  use,  for  it  shows  the  wear  and  tear.      A  witness  who  has 
bought,  sold  and  used  similar  articles  may  testify  to  his  opinion 
of  the  value  of  the  use.8    The  opinion  of  a  witness  who  has  not 
seen  the  thing,  nor  heard  the  testimony  describing  it,  is  not  com- 
petent, unless  there  is  a  market  value,  or  it  appears  or  may  be 
presumed  that  all  apparatus  answering  such  general  description 
is  alike  valuable  for  the  purposes  for  which  it  was  employed.9 


1  Rider  v.  Union  Rubber  Co.  28  N.  Y.  379,  affi'g  6  Bosw.  85. 

2  Knauss  v.  Shiffert,  58  Penn.  St.  152. 

8  Reilly  v.  Rand,  Mass.  Supm.  Ct.  Mar.  1877. 

4  See'Babcock  v.  Stanley,  11  Johns.  178. 

5  See  pp.  284  and  357  of  this  volume.     As  to  parol  evidence  to  explain  a  written 
contract,  see  also  Bradley  v.  Washington,  Ac.  Steam  Packet  Co.  13  Pet.  89,  99;  aa 
to  usage,  Sipperly  v.  Stewart,  50  Barb.  62,  68. 

6  Sherman  v.  Champlain  Trans.  Co.  31  Vt.  162,  176. 

7  Wilcox  v.  Palmeter,  2  Hun,  517. 

8  Brady  v.  Brady,  8  Allen,  101. 

•  Dixon  v.  La  Farge,  1  E.  D.  Smith,  722. 

[356] 


CHAPTER  XIX. 


ACTIONS  ARISING  ON  CONTRACTS  FOR  SERVICES. 


I.  ACTIONS  FOK  COMPENSATION  BY  THE  PER- 
SON EMPLOYED. 

1.  Grounds  of  action. 

2.  License. 

3.  Implied  contract, 

4.  Presumption  that  service  was  gra- 

tuitous. 

5.  Admissions  and  promises. 

6.  Question  who  was  employer. 

7.  Declarations  of  employees. 

8.  Express  contract  when  admissible 

under  general  allegation. 

9.  Express  contract  if  subsisting  must 

be  put  in  evidence. 

10.  What  are  contracts  within  the  rule. 

11.  Extra  work. 

12.  Variances. 

13.  Requisite  memorandum  under  stat- 

ute. 

1 4.  Oral  evidence  to  vary  writing. 

15.  Kind  of  service. 

16.  Measurements. 

17.  Term  of   service,  holidays,  day's 

work,  <fec. 

18.  Rate  of  compensation. 

19.  Fixed  price,  or  quantum  meruit. 

20.  Value  of  service. 

21.  Bill  rendered,  not  a  limit, 

22.  Opinions  of  witnesses. 

23.  Modification  of  contract. 


I.  ACTIONS  FOR  COMPENSATION  BY  THE  PER- 

SON EMPLOYED — continued. 

24.  Performance. 

25.  Certificates. 

26.  Excuse. 

27.  Shop-books  and  other  accounts  of  a 

party  offered  in  his  own  favor. 

28.  Defenses — What  admissible  under 

denial. 

29.  Disproof  of  employment. 

30.  Payment. 

31.  Former  adjudication. 

32.  Limitations. 

II.  RULES   PECULIARLY  APPLICABLE    TO  PAR- 

TICULAR  KINDS   OF    SERVICE. 

33.  Advertising. 

34.  Artists,  architects,  authors. 

35.  Attorney  and  counsel. 

36.  Board  and  lodging. 

37.  Brokers. 

38.  Officers  and  promoters  of  corpora- 

tions. 

39.  Parent  and  child. 

40.  Physicians,  <fec. 

41.  Rewards. 

III.  ACTIONS  FOR  WRONGFUL  DISMISSAL  oa 

REFUSAL   TO    RECEIVE. 

42.  Dismissal  or  refusal,  <fec. 

43.  Defenses. 


I.  ACTIONS  FOE  COMPENSATION  BY  THE  PERSON  EMPLOYED. 

1.  Grounds  of  action.'] — A  claim  for  articles  made  and  deliv- 
ered for  a  specified  sum  pursuant  to  agreement,  may  be  recovered 
on  a  complaint  for  work,  labor  and  materials,  as  well  as  on  a 
complaint  for  goods  sold,1  subject  however  to  the  rules  as  to  vari- 
ance, and  surprise.  Under  the  general  allegation  of  work  and 
labor,  plaintiff  may  give  evidence  of  a  particular  kind  of  service 
•and  of  materials.2  A  recovery  of  damages  for  breach  of  the  con- 


1  Prince  V.  Down,  2  E.  D.  Smith,  525.  Compare  Union  India  Rubber  Co.  v.  Tom- 
linson,  1  Id.  364,  and  see  p.  285  of  this  vol.  Contra,  at  common  law,  Rose.  N.  P.  555. 
The  distinction  between  these  two  classes  of  causes  of  action  is  chiefly  illustrated  by 
the  cases  arising  under  the  statute  of  frauds  which  requires  a  writing  in  certain 
sales,  but  not  in  contracts  for  manufacture.  See  48  N.  Y.  17,  and  cas.  cit.  As  to 
recovery  in  some  cases  on  proof  of  money  paid,  see  Knowlman  v.  Bluett,  L.  R.  9 
Exch.  307,  s.  o.  10  Moak*s  Eng.  466. 

*  For  example,  the  services  of  a  farrier,  and  the  medicines  administered.  Clarke 
v.  Mumford,  3  Camp.  37.  Or  scientific  experiments,  and  materials  used  in  making 
them,  Grafton  v,  Armitage,  2  C.  B.  836 ;  2  Rose.  N.  P.  555. 

[357] 


358  ACTIONS  ON  CONTRACTS  FOR   SERVICES. 

tract  of  employment  by  discharging  the  plaintiff,  ought  not  to 
be  allowed  without  amendment.1 

2.  License.'] — If  a  license  is  necessary  to  render  the  services 
legal,  it  will  be  presumed  that  plaintiff  nad  one  until  the  con- 
trary appears.2    In  the  case  of    services   rendered  in   another 
State,  the  court  will  not  presume  that  its  statute  requires  a 
license  because  ours  does.8 

3.  Implied  contract.] — In  general,  there  must  be  evidence 
that  defendant    requested  plaintiff  to  render  the   services,  or 
assented  to  receiving  their  benefit  under  circumstances  negativing 
any  presumption  that  they  were  to  be  gratuitous.4    The  evidence 
usually  consists,  either  in,  1,  an  express  request,  precedent  to 
the  service,  or,  2,  circumstances   justifying  the  inference  that 
plaintiff  in  rendering  the  service  expected  to  be  paid,  and  de- 
fendant supposed,  or  had  reason  to  and  ought  to  have  supposed, 
that  he  so  expected,  and  still  allowed  him  to  go  on  in  the  service 
without  doin^  anything  to  disabuse  him  oi  this  expectation ; 
or,  3,  proof  oi  benefit  received,  not  on  an  agreement  that  it  was 
gratuitous,  and  followed  by  an  express  promise  to  pay.    Evidence 
that  defendant  voluntarily  accepted  and  availed  himself  of  valu- 
able services  rendered  for  his  benefit  by  plaintiff,  when  he  had 
the  option  whether  to  accept  or  reject  them,  especially  when  he 
had  reason  to  know  that  plaintiff  rendered  them  with  the  expec- 
tation of  payment  by  defendant,  will  sustain  a  finding  by  the 
jury  that  defendant  promised  to  pay  for  them,5  although  there 
may  have  been  no  actual  request  or  promise.6    Where  work  is 
done  on  property  of  a  married  woman  under  contract  with  her 
husband  and  on  his  credit,  the  mere  fact  that  she  knew  the  work 
was  in  progress  and  did  not  object,  is  not  evidence  of  agency  on 
his  part  sufficient  to  charge  her.7 

If  benefit  to  defendant  by  the  service  is  clear,  slight  evidence 


1  "Wiseman  v.  Panama  R.  R.  Co.  1  Hilt.  300.  For  the  distinction  between  action 
for  wages  and  for  wrongful  discharge,  see  Howard  v.  Daly,  61  N.  Y.  362  ;  Clark 
v.  Mayor,  <fcc.  of  N.  Y.  4  N.  Y.  338,  rev'g  3  Barb.  288;  Colburn  v.  Woodworth,  31 
Barb.  381 ;  Routledge  v.  Hislop,  2  E.  <fe.  E.  549;  and  see  L.  R.  10  C.  P.  29,  s.  o.  11 
Moak's  Eng.  232. 

3  So  held  in  case  of  physicians.  Thompson  v.  Sayre,  1  Denio  (N.  Y.)  175,  180  ; 
Crane  v.  McLaw,  12  Rich.  (S.  C.);  129  s.  p.  p.  287  of  this  voL  Contra,  Adams  v. 
Stewart,  5  Harr.  (Del.)  144 ;  Bower  v.  Smith,  8  Geo.  74. 

3  Downs  v.  Minchew,  30  Ala.  86. 

4  Mumford  v.  Brown,  6  Cow.  475.     On  what  evidence  one  who  becomes  a  joint 
owner,  after  the  employment  of  services,  may  be  held  liable,  compare  Belfast,  Ac. 
Plank  R.  Co.  v.  Chamberlain,  32  N.  Y.  621  ;    Fuller  v.  Rowe,  67  N.  Y.  23,  rev'g  59 
Barb.  344  ;  Smith  v.  Douglass,  4  Daly,  191. 

5  Day  v.  Caton,  119  Mass.  513,  s.  c.  20  Am.  R.  347. 

1  Abbott  v.  Inhabitants  of  Hermon,  7  Greenl.  118  ;  Morris  v.  Burdett,  1  Campb. 
218. 

7  Jones  v.  Walker,  63  N.  Y.  612,  compare  Fowler  v.  Seaman,  40  N.  Y.  522; 
Ainsley  v.  Mead,  3  Lans.  116  ;  Fairbanks  v.  Mothersell,  60  Barb.  406,  s.  c.  41  How. 
Pr.  274. 


BY  PERSON  EMPLOYED,— FOE   COMPENSATION.  359 

will  justify  the  finding  of  a  request.1  The  fact  that  the  services 
were  for  the  sole  benefit  of  a  third  person,  is  not  material,  if  an 
original  request  and  agreement  to  pay  is  shown;2  otherwise,  if 
only  a  request  is  shown.3  An  agreement  to  contribute,  with 
others,  for  the  purpose  of  a  work,  does  not  necessarily  imply  a 
request  to  whomsoever  may  do  the  work.4  The  evidence  must 
connect  the  defendant  with  the  request. 

4.  Presumption  that  service  was  Gratuitous.} — The  law  will 
not  imply  a  promise  to  pay  for  board  or  services  as  among  mem- 
bers of  the  same  family,  and  persons  more  or  less  intimately  or 
remotely  related,  where  they  are  living  together  as  one  household, 
and  nothing  else  appears.5  Evidence  of  the  situation  of  the  par- 
ties, and  of  the  surrounding  circumstances  is  freely  received,  for 
the  purpose^ of  determining  the  question  whether  there  was  an 
understanding  that  payment  should  be  made.  If  the  person  re- 
ceiving the  service  is  deceased,  the  executor  or  administrator  is 
not  bound  to  establish  a  negative  in  order  to  defeat  the  claim. 
The  relation  existing  between  the  parties,  as  parent  and  child, 
step-parent  and  step-child,  brother  and  sister,  and  the  like,  is  it- 
self strong  negative  proof,  and  raises  a  presumption  that  no  pay- 
ment or  compensation  was  to  be  made  beyond  that  received  by 
the  claimant  at  the  time.  The  evidence  to  the  contrary  must  sus- 
tain the  conclusion  that  the  services  were  rendered,  not  in  the 
ordinary  relation  of  parent  and  child,  or  of  brother  and  sister, 
nephew  and  uncle,  and  the  like,  but  in  that  of  debtor  and  cred- 
itor, or  of  master  and  servant.6 

The  further  removed* the  parties  are  from  the  filial  relation, 
the  less  need  there  is  of  evidence  of  intention  to  compensate.7  If 
a  child  rendering  service  was  of  full  age,  the  presumption  that  the 
service  was  gratuitous  is  weaker  than  if  he  were  a  minor.8  If  the 
child  continued  in  the  same  filial  service,  after  majority,  as  be- 
fore, there  must  be  evidence  of  a  mutual  understanding  that  pay- 
ment was  to  be  made,9  so  as  to  constitute  the  relation  of  master 
and  servant.  Evidence  of  mere  loose,  verbal  declarations,  made 
to  a  third  person,  by  the  one  who  had  enjoyed  the  service,  that  he 
intended  to  compensate  it,  are  not  alone  sufficient  in  case  of  pa- 


1  Sinclair  v.  Tallmadge,  35  Barb.  602. 

s  Quackenbos  v.  Edgar,  84  Super.  Ct.  (2  J.  <fe  S.)  333. 

8  As  where  one  calls  a  physician  to  attend  another. 

4  Van  Rensselaer  v.  Aikin,  44  N.  Y.  126,  reVg  44  Barb.  54T;  Berchorman  v. 
Murken,  2  E.  D.  Smith,  98 ;  Smith  v.  Duchardt,  45  N.  Y.  597.     Compare  Gray  v. 
Murray,  3  Johns.  Ch.  167 ;  Rourke  Y.  Story,  4  E.  D.  Smith,  54. 

5  Wilcox  v.  Wilcox,  48  Barb.  327,  and  cases  cited;  Williams  v.  Hutchinson,  S 
N.  Y.  312;  and  see  Bartley  v.  llichtmycr,  4  Id.  38;  Nicholls  v.  Hodges,  1  Pet.  562. 

6  Hall  v.  Finch,  29  Wis.  278,  s.  c.  9  Am.  R.  559,  DIXON,  C.  J.     But  compare  Rob- 
inson v.  Raynor,  28  N.  Y.  494.     The  agreement  may  be  valid  even  against  interme- 
diate creditors  of  the  deceased.     Brown  v.  Pyle,  4  Weekly  Notes  (Penn.)  394. 

1  Gordner  v.  Heffley,  49  Penn.  St.  163. 

8  Moore  v.  Moore,  3  Abb.  Ct.  App.  Dec.  303,  s.  c.  21  How.  Pr.  211. 

•  Green  v.  Roberts,  47  Barb.  621. 


360  ACTIONS   ON  CONTRACTS  FOR  SERVICES.. 

rent  and  child ;  but  are  competent  as  tending  to  show  a  contract 
relation.1 

5.  Admissions  and  promises.'] — Evidence  having  been  given 
that  work  was  done  by  plaintiff  for  defendant,  it  is  enough  to 
prove  that  defendant,  on  presentation  of  plaintiff's  bill  therefor, 
promised  to  pay  it,  or  admitted  its  correctness ; 2  but  mere  dec- 
larations to  a  third  person,  of  intent  to  pay  for  services,  are 
not  equivalent  to  a  promise.3 

6.  Question  who  was  employer.'] — To  determine  by  which  of 
two  persons  the  plaintiff  was  employed,  it  is  proper  to  ask  a  wit- 
ness for  whom,  or  on  whose  behalf  were  the  services  rendered  ;  * 
though  it  is  not  proper  to  ask  the  same  question  with  the  qualifi- 
cation, "  as  you  supposed." 5    Evidence  of  the  insolvency  of  either 
of  the  alleged  employers  is  not  competent  for  the  purpose  of  rais- 
ing a  presumption  that  the  credit  was  not  given  to  him.6    De- 
fendant cannot  set  up  that  he  acted  only  as  agent,  &c.,  without 
evidence  that  he  disclosed  the  fact  of  the  agency  at  the  time  of 
making  the  contract.7     General  reputation  as  to  the  agency  is  not 
competent.8     Where  plaintiff  may  prove  defendant  s  dominion 
over  the  property  benefited,  as  one  element  in  the  evidence  that 
defendant  was  the  real  employer,  it  is  competent  to  show  that 
other  persons  had  received  orders  from  the  defendant  to  do  work 
on  the  same  property,  without  showing  that  the  plaintiff  knew  of 
these  orders  at  the  time  he  did  the  work.9 

Declarations  made  by  plaintiff  while  at  work,  and  part  of  the 
res  gettce,  and  tending  to  show  for  which  of  several  he  was  work- 
ing, may  be  competent  on  that  point,10  though  they  cannot,  of 
course,  be  evidence  of  employment,  unless  brought  home  to  de- 
fendant.11 

When  defendant,  in  making  the  contract,  acted  as  agent,  and 
within  the  authority  conferred,  and  disclosed  his  principal  at  the 
time,  he  is  not  personally  bound,  unless  upon  clear  and  explicit 
evidence  of  an  intention  to  interpose  his  personal  liability.12  In 


1  See  Robinson  v.  Raynor,  36  Barb.  128,  rev'd  in  28  N.  Y.  494;  Gordner  v. 
Heffley,  49  Penn.  St.  163;  Hertzog  v.  Hertzog,  29  Id.  465.     For  the  presumption 
that  the  whole  services  were  gratuitous,  if  part  were,  see  Ross  v.  Ross,  6  HUD,  182. 

2  Haymaker  v.  Haymaker,  4  Ohio  St.  272;  Houston  v.  Crutcher,  31  Miss.  61,  56. 
Compare  as  to  imperfect  performance  of  part,  Hollis  v.  Wagar,  1  Lans.  4. 

3  Ditch  v  Wilkinson,  10  Louis.  205. 

4  Sweet  v.  Tuttle,  14  N.  Y.  465,  affi'g  10  How.  Pr.  40. 

5  Denman  v.  Campbell,  7  Hun,  88 ;  Murray  v.  Deyo,  10  Id.  3,  and  cases  cited.  For 
other  cases,  see  pp.  240,  265,  nnd  302,  of  this  vol.     A  witness  cannot  be  asked 
whether  plaintiff  "  knew  "  the  work  was  not  done  for  defendant.     The  fact  from  which 
knowledge  is  to  be  inferred  must  be  proved.     Major  v.  Spies,  66  Barb.  576. 

8  Trowbridge  v.  Wheeler,  1  Allen,  162. 
*  Cabre  v.  Sturges,  1  Hilt.  160. 
8  Trowbridge  v.  VVheeler,  1  Allen,  162. 

8  Woodward  v.  Buchanan,  L.  R.  5  Q.  B.  285.     Compare  Fuller  v.  Clark,  3  E.  D. 
Smith,  302. 

i°  Printup  v.  Mitchell,  17  Goo.  558, 562 ;  Autauga  County  v.  Davis,  32  Ala.  703,  708. 
11  Erbe'n  v.  Lorillard,  19  N.  Y.  299,  rev"g  23  Barb.  82. 
"  Hall  v.  I  auderdale,  46  N.  Y.  70. 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.  361 

the  case  of  a  public  agent,  much  stronger  evidence  is  required  of 
such  an  intention.1  If  it  is  sought  to  charge  him  on  the  ground 
that  he  acted  as  agent  without  authority,  the  burden  is  on  plaint- 
iff to  show  that  defendant  had  not  the  authority  under  which  he 
professed  to  act.2 

7.  Declarations  of  employees.] — The  mere  relation  of  employ- 
ment does  not  render  evidence  of  the  admissions  and  declarations 
of  the  employee  competent  against  the  employer.8    Where  the 
servants  01  one  party  are,  under  the  contract,  at  work  for  the 
other,  this  may  preclude  the  latter  from  using  their  declarations 
against  the  former.4 

8.  Express  contract  when  admissible  under  general  allegation.'] 
— Under  a  general  complaint  for  a  quantum  meruit,  for  work,  la- 
bor and  services,  plaintiff  cannot  prove  a  contract  which  remains 
executory  on  his  part,5  nor  one  which,  though  fully  performed  on 
his  part,  is  special  in  respect  to  the  time  or  manner  of  payment, 
so  that  it  cannot  be  said  that  nothing  remains  but  the  payment  of 
money  already  due.6   A  variance  in  this  respect,  nevertheless,  may 
be  cured  by  amendment.     He  may,  however,  under  such  a  com- 
plaint, prove  that  a  price  was  fixed  by  agreement ; 7  or  may  give 
in  evidence  any  express  or  special  contract  payable  presently  in 
money,  together  with  evidence  either  of  full  performance  on  his 
part,8  or  an  excuse  exonerating  him  from  full  performance,9  such 
as  illness ; 10  or  that  he  has,  in  good  faith,  fulfilled,  but  not  in  the 
manner,  or  not  within  the  time  prescribed  by  the  contract,  and 
that  the  other  has  sanctioned  or  accepted  the  work ; u  or  that  he 
has  fully,  or  partly,  performed,  and  that  the  contract  has  been* 
abandoned  by  mutual  consent,  or  has  been  rescinded  and  become 


1  Hall  v.  Lauderdale,  46  K  Y.  70. 

s  Plumb  v.  Milk,  19  Barb.  74.  The  cases  holding  the  burden  to  be  on  defendant 
are  where  the  contract  purported  to  be  that  of  the  defendant.  Id. 

3  Cook  v.  Hunt,  24  111.  535 ;  Corbin  v.  Adams,  6  Gush,  93 ;  Maher  v.  Chicago,  38 
111.  266,  273.     A  contractor  for  building  a  ship  is  not  the  agent  of  the  owner  within 
the  rule,  so  as  to  make  his  admission  that  materials  were  used  in  the  construction,  ad- 
missible against  the  owner.     Happy  v.  Mosher,  48  N.  Y.  813,  rev'g  47  Barb.  501. 
Compare  Fleming  v.  Smith,  44  Barb.  554,  where  the  contrary  principle  seems  to  have 
been  applied  in  the  case  of  a  contractor  for  building  a  house. 

4  Dennis  v.  Belt,  30  Cal.  247,  253. 

8  Dermott  v.  Jones,  2  Wall.  9 ;  2  Greenl.  Ev.  82,  §  104. 

*  Champlin  v.  Butler,  18  Johns.  169  ;  Ladue  v.  Seymour,  24  Wend.  59.  Although 
the  work  may  have  been  in  part  done,  if  the  stipulations  of  the  contract  have  not  been 
fully  performod — as.  for  instance,  if  the  work  has  not  been  approved  by  a  third  per- 
son, whose  approval  was  made  a  condition  precedent — the  plaintiff  cannot  recover 
under  a  general  allegation.  Atkinson  v.  Collins,  30  Barb.. 430,  s.  c.  9  Abb.  Pr.  353 ; 
18  How.  Pr.  235. 

7  Fells  v.  Vestvali,  2  Keyes,  152. 

8  Hurst  v.  Litchfield,  39  N.  Y.  877  ;  Dermott  v.  Jones,  2  Wall.  9.     Contra,  Adams 
V.  Mayor,  <fec.  of  N.  Y.  4  Duer,  295. 

9  Hosley  v.  Black,  28  N.  Y.  438,  a  o.  26  How.  Pr.  97;  Farron  v.  Sherwood,  17 
N.  Y.  227. 

10  Wolfe  v.  Howes,  20  N.  Y.  197,  nffi'g  24  Barb.  174,  666. 

11  Dermott  v.  Jones  (above) ;  Hutchinson  v.  Cullum,  23  Ala.  622;  Dubois  v.  Dehv 
ware  &  Hudson  Can.  Co.  4  Wend.  285. 


362  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

extinct  by  act  of  the  other.1  In  all  these  cases  the  contract  is  no 
longer  executory  on  his  part,  nor  a  hindrance  to  a  money  judg- 
ment for  price  or  value. 

9.  Express  contract,  if  subsisting,  must  be  put  in  evidence."] 
— If  it  appear  by  plaintiffs  evidence  that  a  special  agreement 
exists,  even  though  not  pleaded,  it  must  be  produced  or  accounted 
for,  and  its  contents  proved,  for  the  purpose  of  seeing  whether  it 
has  been  performed  by  the  plaintiff,  and  whether  the  stipulated 
time  and  mode  of  payment  were  such  as  to  warrant  a  recovery.2 
And  if  the  contract  was  not  in  writing,  plaintiff  must  neverthe- 
less prove  its  substance  before  he  can  recover.3    The  contract  so 
proved  will  be  applied  as  far  as  its  application  can  be  traced ;  but 
if,  by  the  defendant's  fault  the  cost  of  the  work  or  materials  has 
been  increased,  in  so  far  the  jury  will  be  warranted  in  departing 
from  the  contract  prices.4 

If,  after  parol  evidence  has  been  taken  of  an  agreement,  a 
written  agreement  is  produced  embodying  the  contract,  the  parol 
evidence  may  be  struck  out  on  motion.5 

10.  What  are  contracts  within  the  rule.*} — If  the  contract  re- 
fers to  another  document  for  details  of  the  work  to  be  done,  the 
plaintiff  in   order  to  prove  performance  must  produce  it,6  or 
account  for  its  non-production,  and  prove  its  terms ;  but  it  is 
enough  to  identify  it  without  proving  its  execution.7    A  docu- 
ment specifying  the  work  or  other  conditions,  and  communicated 
by  one  party,  and  accepted  by  the  other,  as  the  terms  of  employ- 
ment, although  not  signed  by  either,  is  a  written  contract  within 
the  rule  requiring  production,8  but  it  does  not  necessarily  exclude 
oral  evidence  of  other  terms.     If,  however,  assent  is  proven, 
ignorance  of  the  contents  is  not  material.9    An  unexecuted  draft 
contract,  drawn  up  by  a  third  person  at  the  request  of  the  par- 
ties, is  not  necessarily  competent.10 

11.  Extra  work.'] — An  independent  oral  onier  for  separate 
work  may  be  proved  in  an  action  for  compensation  for  such 


1  2  Greenl.  Ev.  82,  §  104  ;  Burlingame  v.  Burlingame,  7  Cow.  92. 
*      *  Ladue  v.  Seymour,  24  Wend.  59;  Alger  v.  Raymond,  7  Bosw.  418. 

3  Smith  v.  Smith,  1  Sandf.  206. 

4  Dermott  v.  Jones,  2  Wall.  9. 

5  Newkirk  v.  New  York  &  Harlem  R.  R.  Co.  38  N.  T.  158. 

6  Bryant  v.  Stilwell,  24  Penn.  St.  314,  317.     Compare,  to  the  contrary,  Coles  v. 
Holmes,  2  Spears  (So.  Car.)  360. 

7  Page  288  of  this  Tol. 

8  Whitford  v.  Tutin,  10  Bing.  395,  p.  34  of  this  vol. ;  Rice  v.  Dwight  M'fg  Co.  2 
Cash.  80,  87,  p.  288  of  this  vol.     Otherwise,  of  terms  read  to  one  party  by  the  other 
from  a  writing  not  shown. 

9  Rice  v.  Dwight  M'fg  Co.  (above). 

10  Flood  v.  Mitchell,  68  N.  Y.  507,  confirming  4  Hun,  813,  but  rev'g  it  on  other 
points.  Compare  p.  53  of  this  vol.  If  an  offer  by  one  to  the  other  has  been  proven, 
a  letter  signed  by  the  former  and  produced  by  the  latter,  although  not  addressed, 
agreeing  on  the  sum  specified  in  the  offer,  is  admissible.  BagHolo  v.  Scott,  5  Mo. 
341,  343. 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.      363 

work,  although  given  during  the  performance  of  a  written  con- 
tract which  is  not  produced.1  But  if  it  is  not  clear  that  the  work 
was  entirely  separate  from  that  called  for  by  the  written  contract, 
the  latter  must  be  produced,'4  or  accounted  for ;  and  even  a  dis- 
tinct promise  to  pay  for  the  *work  does  not  dispense  with  this 
necessity.8  If  the  existence  of  an  express  contract  appears,  the 
employer's  request  for  extra  work  is  deemed,  in  the  absence  of 
further  evidence,  to  be  merely  a  notice  of  his  claim  that  the  con- 
tract calls  for  such  work.4  The  contract  is  the  proper  evidence 
to  show  what  are  extras.5 

12.  Variances.] — In  pleading  a  contract  by  its  legal  effect, 
the  omission  to  state  conditions  which  altered  the  liability  or  ob- 
ligation may  be  a  variance,6  but  the  omission  to  state  a  contingent 
condition,  which  never  took  effect,  is  not.7    Under  an  allegation 
of  a  special  contract  for  work  and  materials,  a  contract  for  work 
only  may  be  proved.8 

13.  Requisite  memorandum  under  statute  of  frauds. ~\ — The 
general  principles  applicable  have  been  already  stated.9    It  is 
essential  that  the  writing  should  be  final,  as  distinguished  from  a 
statement  of  some  terms,  leaving  others  to  be  subsequently  agreed 
on.10    But  the  memorandum  is  not  vitiated  by  omitting  to  des- 
ignate the  kind  of  service,  even  though  on  familiar  principles  the 
obligation  of  the  employee  will  consequently  depend  on   oral 
evidence  of  surrounding  circumstances  and  of  usage.11    The  party 
who  is  sought  to  be  charged,  having  subscribed  the  memorandum, 
the  assent  of  the  other  may  be  proved  by  parol.12    If  the  terms 
of  the  contract  do  not  negative  the  feasibility  or  right  of  per- 
formance within  the  year,  evidence  that  it  was  not  completely 
performed,  or  as  the  event  proved,  could  not  have  been  so  per- 
formed, is  not  enough.     If  the  terms  require  more  than  a  year, 
evidence  that  it  actually  was  performed  within  the  year  does  not 
avail.     If  a  contract  for  a  year's  service  does  not  express  the  time 
for  commencement  of  the  term  of  service  it  commences  in  con- 
templation of  law  immediately,  and  is  valid  without  writing.13    If 

1  Reid  v.  Batte,  Moody  &  M.  413. 

9  Parton  v.  Cole,  6  Jur.  370. 

3  Vincent  v.  Cole,  Moody  <fc  M.  257. 

*  Colly er  v.  Collins,  17  Abb.  Pr.  467. 

5  Jones  v.  Howell,  4  Dowl.  176 ;  Buxton  v.  Cornish,  12  M.  &  "W.  426;  Rose.  N. 
P.  652.  A  promise  to  pay  for  extra  material  may  be  implied  from  the  employer's 
own  act,  which  rendered  the  extra  material  necessary  to  conform  the  work  to  the 
conditions  of  the  contract.  Messenger  v.  City  of  Buffalo,  2.1  N.  Y.  196. 

8  See,  for  instance,  Sheafe  v.  Locke,  1  Allen  (Mass.)  369 ;  compare  Bruce  v. 
Greenbanks,  33  Vt.  226. 

7  Cobb  v.  West,  4  Duer,  38 ;  Short  v.  McRea,  4  Minn.  119,  124. 

8  Cobb  v.  West,  4  Duer,  38. 

9  Page  292  of  this  vol. 

10  Appleby  v.  Johnson,  L.  R.  9  C.  P.  158. 

11  Hagan  v.  Domestic  Sewing  Mach.  Co.  9  Hun,  73,  and  see  paragraph  15. 
11  Reuss  v.  Pickley,  L.  R.  1  Ex.  342;  4  H.  &  C.  588. 

13  Ruaaell  v.  Slade,  12  Conn.  455. 


364  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

for  a  year  commencing  at  a  future  day,  it  is  void  if  not  in  writ- 
ing, and  evidence  of  performance  by  plaintiff  until  discharge  is 
not  evidence  of  a  new  contract  for  the  same  term,  but  only  en- 
titles him  to  recover  for  actual  service.1 

If  services  are  rendered  under  a  contract,  which  is  wholly 
void  by  the  statute  of  frauds,  no  action  can  be  maintained  to  re- 
cover their  value,  except  upon  evidence  of  the  default  of  the 
other  party,  or  his  refusal  to  go  on  with  the  contract.2 

Evidence  that  the  emplovee  refused  to  go  on,  on  the  credit  of 
the  original  employer,  and  thereupon  at  the  request  of  defendant, 
and  on  nis  oral  promise  to  pay,  went  on  with  the  work,  is  suffi- 
cient to  go  to  the  jury  to  sustain  an  inference  of  a  new  and  orig- 
inal undertaking s  by  defendant,  on  which  he  is  liable  for  work 
thereafter  done. 

14.  Oral  evidence  to  vary  writing.'] — In  application  of  the  gen- 
eral principles  already  stated  as  to  oral  evidence  in  connection 
with  written,5  it  is  to  be  observed  that  evidence  of  the  surround- 
ing circumstances,  the  previous  negotiations  and  the  usage  of  the 
business  or  vocation,  are  freely  admitted  to  explain  ambiguous 
terms ;  but  not  to  contradict  unambiguous  terms,  except  within 
the  limits  already  stated,  of  evidence  to  show  usages  of  language.6 
A  stipulation  on  a  point  which  the  writing  either  expressly  or 
impliedly  controls  cannot  be  added  by  parol.7  But  usage  may  be 
proved  to  show  what  amounts  to  complete  performance  of  the 
express  contract  under  the  presumed  understanding  of  the  parties.8 
If  the  time  for  performance  is  not  specified,  subsequent  conversa- 
tions of  the  parties  are  competent  evidence  to  show  what  they  re- 
garded as  a  reasonable  time.9 

Such  papers  as  a  circular  of  instructions  accepted  by  an  agent 
on  entering  employment,10  further  instructions  in  writing  received 
by  him  during  his  employment,  and  acted  on  by  him  continuously 


1  Oddy  v.  James,  48  N.  Y.  686. 

2  Galvin  v.  Pentice,  45  N.  Y.  162,  per  RAPALLO,  J. ;  and  see  William  Butcher 
Steel  Works  v.  Atkinson,  68  HI.  421. 

3  Lakeman  v.  Mountstephen,  L.  R.  7  H.  of  L.  17,  s.  c.  9  Moak's  Eng.  6. 

4  Rand  v.  Mather,  11  Cush.  1. 

6  Page  294  of  this  vol. 

«  Compare  Partridge  v.  Ins.  Co.  15  Wall.  573;  1  Dill.  139  ;  Stoops  v.  Smith,  100 
Mass.  63,  s.  c.  1  Am.  R.  85;  Sweet  v.  Lee,  3  Mann.  <fe  G.  452,  460;  Myers  v.  Sari,  3 
E.  <fe  E.  306;  Zerrahn  v.  Ditson,  117  Mass.  553;  and  pp.  294,  <fcc.  and  132  of  this 
vol.  Whether  contradictory  clauses,  which  may  be  reconciled  by  construing  one  as 
an  exception  from  the  other,  can  be  otherwise  explained  by  parol  evidence, — see 
Porter  v.  Spence,  38  N.  Y.  119. 

7  Thorp  v.  Ross,  4  Abb.  Ct.  App.  Dec  416.     Whether  a  verbal  limit  of  cost,  on  a 
written  order,  is  competent, — see  Hooper  v.  Taylor,  4  E.  D.  Smith,  486 ;  Carll  v. 
Spofford,  45  N.  Y.  61. 

8  Cooper  v.  Kane,  19  Wend.  386,  NELSON,  Ch.  J. 

9  Davis  v.  Talcott,  14  Barb.  611,  revM,  on  other  points,  in  12  N.  Y.  184.     Thus 
under  a  contract  to  build  such  a  drawbridge  as  specified  in  the  contract,  it  is  compe- 
tent to  prove  that  it  is  the  common  understanding  that  it  should  be  so  constructed  as 
to  be  easily  turned  in  two  or  three  minutes,  by  one  man.     R.  R.  Co.  v.  Smith,  21 
Wall.  262. 

10  Stagg  v.  Ins.  Co.  10  Wall  589. 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.  865 

thereafter,  are  contracts  within  the  rule.1  So  is  a  stipulation  in  a 
receipt  for  a  payment  in  advance,  stating  how  it  is  to  be  applied 
or  forfeited.2  % 

15.  Kind  of  Service."] — Where  the  writing  is  silent  as  to  the 
kind  of  service  agreed  for,  it  may  be  shown  by  oral  evidence  of 
the  surrounding  circumstances,3  and  for  this  purpose  the  nature 
of  the  employer's  business,  and  the  kind  of  occupation  to  which 
the  employee  was  known  to  be  accustomed,  are  competent,4  and 
the  general  usage  in  such  business.5    If  the  writing  designates  the 
service  in  the  language  of  trade,  oral  evidence  to  show  what  busi- 
\iess  was  properly  included  in  the  phrase  used,  is  competent.8 

16.  Measurement.'] — In  application  of  the  principle  as  to  usage 
already  stated,7  evidence  of  usage  in  the  locality,  or  in  the  trade, 
is  competent  to  show  in  what  manner  measurements  provided  for 
by  the  contract  are  to  be  taken;8  and  the  usage  need  not  be 
pleaded.9 

17.  Term  of  /Service;  Holidays,  "Day's  work"  &c. — If  the 
allegation  is  o±  service  between  specified  dates,  prior  or  later  serv- 
ices are  not  strictly  provable,10  except  on  the  principles  on  which 
variance  may  be  disregarded ;  but  if  the  allegation  is  of  indebted- 
ness on  a  day  named,  or  service  before  a  day  named,  a  term  of 
service  or  various  services  before  that  day  may  be  proved.11 

If  there  is  a  written  contract  specifying  the  term  of  service,12 
or  which,  by  specifying  no  term  and  stipulating  for  wages  by  the 


I  Ib.     Letter  written  by  employer  in  answer  to  his  remonstrances  asking  what 
his  status  was ;  or  the  employer's  letter  to  his  employee,  written  in  answer  as  to  the 
latter's  inquiry  as  to  the  terms  on  which  he  was  to  be  understood  as  serving,  and 
put  in  evidence  by  him  as  proving  his  employment,  are  contracts  within  the  rule 
that  the  writing  cannot  be  contradicted  by  oral  evidence.    Partridge  v.  Insurance 
Co.  15  Wall.  579. 

*  Townsend  v.  Fisher,  2  Hilt.  47. 

8  Price  v.  Mouat,  11  C.  B.  N.  S.  508;  Mumford  v.  Gething,  7  C.  B.  N.  S.  305 ;  L. 
J.  29  C.  P.  105. 

4  Hagan  v.  Domestic  Sewing  Machine  Co.  9  Hun,  73. 

*  Eldredge  v.  Smith,  13  Allen,  140,  143. 

6  Stroud  v.  Frith,  11  Barb.  300. 

7  Page  296  of  this  vol. 

8  As,  for  instance,  under  a  contract  calling  for  bricks  and  laying  them  in  a  wall 
at  so  much  "  per  thousand,"  that  the  number  is  ascertainable  by  measurement  and 
estimate;  Lowe  v.  Lehman,  15  Ohio  St.  179;  or  how  a  wall  with  angles  is  to  be 
measured  when  it  is  to  be  paid  for  "by  the  foot."    Ford  v.  Tirrell,  9  Gray,  401 ; 
whether  an  agreement  to  pay  for  plastering  "  per  square  yard,"  includes  or  excludes 
measurement  of  spaces  of  base-boards,  doors,  <fec.    Walls  v.  Bailey,  49  N.  Y.  467  ;  and 
how  wall  more  than  nine  inches  thick  is  to  be  measured  under  a  clause  for  payment 
"per  superficial  yard  of  work  nine  inches  thick."  Symonds  v.  Floyd,  6  C.  B.  N.  S.  691. 

9  Lowe  v.  Lehman  (above).     As  to  proving  the  meaning  of  such  terms  as  "  hard 
pan," — see  Dubois  v.  Delaware,  <tc.  Co.  12  Wend.  334,  15  Id.  87;  Dickinson  v.  Water 
Comm'rs  of  Poughkeepsie,  2  Hun,  615 ;    Currier  v.  Boston,  <fec.  li.  R.  Co.  34  N.  H. 
498,  508. 

10  Manch.  <fe  Law.  R.  R.  v.  Fisk,  83  N.  H.  297,  305. 

II  Beekman  v.  Platner,  15  Bnrb.  550. 

M  Sweet  v.  Lee,  3  Mann.  <fc  G.  452,  466. 


366  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

week,  month,  or  other  period,  implies  that  the  term  is  for  that 
period,1  oral  evidence  is  not  competent  to  contradict  the  language ; 
but  it  is  competent  to  show  what  length  of  actual  service  is  by 
ifsage  designated  by  such  language.  Thus  in  a  contract  for  the 
services  of  an  actor  for  three  years,  a  party  may  show  that  "  year  " 
means  annual  season,8  but  not  that  four  years  or  seasons  were 
agreed  for.8  "  Month"  means  calendar  month,  unless  otherwise  ex- 
pressed.4 Parol  evidence  of  a  usage  in  the  trade  or  business  to 
allow  holidays  is  competent;5  and  so  is  a  usage  not  to  pay  the 
stipulated  weekly  salary  during  vacation.6 

A  general  usage  of  the  trade7  is  competent  to  show  that  an 
agreement  for  a  day's  work  is  satisfied  by  a  certain  number  of* 
hours,  so- as  to  entitle  the  employee  to  work  for  himself  the  rest 
of  the  time.  So  a  usage  to  pay  proportionally  more  than  the 
day's  wages  for  more  hours  than  the  usual  day's  work,  is  compe- 
tent.8 W  here  a,  statute  fixes  the  number  of  hours  in  a  day's  work, 
unless  otherwise  expressly  agreed,  if  the  parties  render  and  accept 
less  or  more,  without  any  express  agreement,  an  agreement  may 
be  inferred  that  the  work  actually  done  in  a  day  shall  be  reckoned 
a  day's  work.9  If  such  a  statute  does  not  require  an  express 
agreement  to  manifest  a  different  intention,  the  rendering  of  more 
hours'  service  in  a  day  than  it  calls  for  does  not  prove  an  intent 
that  more  than  a  day's  wages  shall  be  paid.10 

18.  Rate  of  compensation^ — Usually  if,  after  the  expiration  of 
an  hiring  for  an  agreed  compensation,  the  employee  continues  in 
the  same  service,  the  law  implies,  in  the  absence  of  other  evi- 
dence, a  promise  to  continue  to  pay  at  the  same  rate ; u  but  such 
a  promise  is  not  implied  after  the  expiration  of  service  under  an 
agreement  to  pay  at  a  specified  rate  for  a  limited  period,  without 
evidence  of  actual  engagement  for  that  period.12  !Nor  is  an  agree- 
ment to  accept  the  same  rate  implied,  if  the  employee  commenced 
in  ignorance  of  the  business,  and  during  a  part  of  the  period  of 
the  original  contract  was  a  learner.13 

I  Evans  v.  Roe,  L.  R.  7  Com.  PI.  138,  s.  c.  2  Moak's  Eng.  R.  116. 
s  Grant  v.  Maddox,  15  Mees.  &  W.  737. 

8  Sweet  v.  Lee  (above).  It  has  been  held  that  evidence  of  a  usage  of  the  trade  to 
allow  termination  on  certain  notice,  before  the  end  of  the  periodical  hiring,  is  com- 
petent. Parker  v.  Ibbetson,  4  C.  B.  (N.  S.)  348,  s.  c.  L.  J.  27  C.  P.  236. 

4  1  N.  Y.  R.  S.  606,  §  4.     Contra,  at  common  law,  Simpson  v.  Margitson,  11  Q. 
B.  23,  32. 

5  Reg.  v.  Stoke  upon  Trent,  5  Q.  B.  (Ad.  <t  EL  N.  S.)  303 ;  and  see  Hosley  v. 
Black,  28  N.  Y.  438.  s.  c.  26  How.  Pr.  97. 

6  Grant  v.  Maddox,  16  Mees.  &  W.  737. 

7  Perhaps  also  a  general  usage  of  other  kindred  vocations  in  the  same  place. 
Barnes  v.  Ingalls,  39  Ala.  393. 

8  Hinton  v.  Locke,  6  Hill,  437. 

9  Brooks  v.  Cotton,  48  N.  H.  60,  8.  c.  1  Am.  R.  172. 

10  Luske  v.  Hotchkiss,  37  Conn.  219,  s.  c.  9  Am.  R.  814. 

II  Smith  v.  Velie,  60  N.  Y.  106 ;  Vail  v.  Jersey  Little  Falls  Manuf.  Co.  32  Barb. 
564.     Compare  Miller  v.  Hooper,  7  Hun,  200 ;  Nutt  v.  Minor,  14  How.  U.  S.  464. 

12  Smith  v.  Velie  (above). 

13  Galvin  v.  Prentice,  45  N.  Y.  162. 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.      367 

A  hiring  at  so  much  per  week  or  month  usually  implies  a 
promise  to  pay  at  the  end  of  the  periods  thus  specified.1 

If  complete  performance  of  a  special  contract  is  prevented  by 
sickness  or  death,2  or  by  act  of  the  law,8  or  other  legal  excuse  ex- 
onerating the  employee,  the  contract  is  competent  evidence  on  the 
question  of  the  rate  of  compensation  for  services  actually  per- 
formed ;  and  contract  rates  cannot  be  reduced  by  proving  that 
the  portion  unfinished  would  be  more  expensive  in  its  nature  than 
the  portion  completed.4  So  where  the  contract  is  absolutely  void 
by  t]ie  statute  of  frauds,  it  may  still  be  put  in  evidence  to  fix  the 
rate  of  compensation,5  if  any  be  recoverable.6  If  the  void  con- 
tract calls  for  compensation  not  by  a  pecuniary  standard,7  but  in 
a  specific  thing  the  value  of  which  is  not  fixed,  such  as  a  tract 
of  land,  the  value  of  the  services  must  be  shown,  and  evidence  of 
the  value  of  the  land  is  incompetent.8 

19.  fixed  price,  or  quantum  rneruit.'] — Under  an  allegation  of 
a  contract  to  pay  a  specified  rate  of  compensation,  plaintiff  may 
prove  a  promise  to  pay  what  the  services  were  reasonably  worth,9 
or  an  implied  promise  to  pay  usual  compensation.10  The  variance 
is  immaterial,  if  the  defendant  is  not  misled  ; u  especially  where 
there  are  sufficient  averments  to  enable  him  to  recover  without 
reference  to  the  allegation  of  an  agreed  compensation.12  But  if 
he  rests  his  case  on  a  contract  fixing  the  price  to  be  recovered,  it 
is  not  competent  for  him  to  give  evidence  of  value  as  a  basis  of 
recovery  beyond  the  contract ; 13  nor  for  the  defendant,  without 
denying  the  making  of  the  contract,  to  give  evidence  that  the 
value  of  the  services  was  less.14  Even  where  the  complaint  is  on 
a  quantum  meruit,  a  contract  at  a  specified  sum,  if  proved,  con- 
trols.15 But  if  evidence  of  value  is  received  from  either  side  with- 
out objection,  the  other  may  be  allowed  to  give  evidence  of  the 
same  kind.18  And  in  a  conflict  of  evidence  as  to  whether  a  speci- 
fied rate  was  agreed  on  or  not,  evidence  of  its  reasonableness  or 

1  Helm  v.  Wolf,  1  E.  D.  Smith,  70. 

1  Clark  v.  Gilbert,  26  N.  Y.  279,  rev's  32  Barb.  676. 

I  Jones  v.  Judd,  4  N.  Y.  441. 

4  Id.  Where  a  contract  of  yearly  service  is  determined  by  consent  in  the  middle 
of  a  quarter,  there  is  no  necessarily  implied  contract  to  pay  pro  rota  ;  but  a  jury 
may  infer  such  an  agreement  from  circumstances.  Rose.  N.  P.  492,  citing  Lamburn 
V.  Cruden,  2  M.  «fe  Gr.  253 ;  Thomas  v.  Williams,  1  Ad.  <fe  E.  685. 

6  Nones  v.  Homer,  2  Hilt.  116. 

•  Galvin  v.  Prentice,  45  N.  Y.  162. 

7  Lisk  v.  Sherman,  25  Barb.  433. 

8  Erben  v.  Lorillard,  19  N.  Y.  299,  rev'g  23  Barb.  82. 

9  Scott  v.  Lilienthal,  9  Bosw.  224;    s.  p.  Harrington  v.  Baker,  15  Gray,  538. , 
Contra,  Seale  v.  Emerson,  25  Cal.  293. 

10  Morgan  v.  Mason.  4  E.  D.  Smith,  636. 

II  Scott  v.  Lilienthal  (above). 

13  Sussdorf  v.  Schmidt,  55  N.  Y.  319. 

13  Trimble  v.  Stilwel!,  4  E.  D.  Smith,  512. 

14  Marsh  v.  Holbrook,  8  Abb.  Ct.  App.  Dec.  176. 

15  Ludlowv.  Dole,  62  N.  Y.  617,  affi'g  1  Hun,  715,  s.  o.  4  Supm.  Ct.  (T.  A  C.)  655. 
18  Morgan  v.  Mason,  4  E.  D.  Smith,  636. 


368  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

•unreasonableness,  and  particularly  of  the  usual  price,  is  competent, 
as  bearing  on  the  probable  truth  of  the  allegation  of  rate  agreed.1 
But  evidence  of  me  profitableness  or  unprofitableness  to  the  em- 
ployer of  an  engagement  at  such  a  rate  is  not  competent.2  Where 
the  claim  is  for  commissions,  a  variance  as  to  the  amount  on  which 
they  are  computable,  may  be  disregarded.8 

20.  Value  of  service.'] — On  the  question  of  the  value  of  serv- 
ices of  a  workman,  evidence  of  his  skill  is  competent  in  his  favor, 
in  connection  with  evidence  of  the  usual  wages ; 4  and  evidence 
of  his  unskillfulness  or  his  intemperate  habits  is  competent  against 
him.5      Evidence  of  the  recommendations  of  third  persons  on 
which  he  was  engaged  is  not  competent.6 

To  prove  value  of  work  and  materials  it  is  not  competent  to 
show  the  cost  of  constructing  a  different  structure,  for  it  leads  to 
a  collateral  issue  involving  comparison  between  the  structures  ; 7 
and  on  the  same  principle  to  show  the  value  of  a  service — for 
instance,  negotiating  the  sale  of  a  lease — it  is  not  competent  to 
prove  the  relative  labor  involved  in  negotiating  that  and  the  sale 
of  the  fee.8  An  agreed  price  being  proved,  evidence  by  com- 
parison of  plaintiffs  services  with  those  of  his  fellows,  is  not 
competent.9 

21.  Bill  rendered  not  a  limit.'] — The  presentment  by  a  party 
to  his  debtor  of  a  bill  in  which  he  charges  a  gross  sum  for  serv- 
ices, for  which  he  is  entitled  to  claim  quantum  meruit,  where  the 
subject  of  the  demand  is  one  which  would  naturally  consist  of 
many  items,  there  being  no  payment  nor  settlement  of  the  ac- 
count, does  not  preclude  the  creditor  from  showing  what  the 
services  were  reasonably  worth,  and  recovering  more  than  he  had 
so  charged.10 

22.  Opinions  of  witnesses.] — In  applying  the  general  rule  ad- 
mitting opinions  of  witnesses  as  to  value,11  it  is  held  that  the 


I  Harrington  v.  Baker,  15  Gray,  538,  540;    Darling  v.  "Westmoreland,  62  N.  H. 
401,  a  c.  13  Am.  R.  55 ;  s.  p.  Moore  v.  Davis,  49  N.  H.  45,  s.  c.  6  Am.  R.  460. 

3  Harrington  v.  Baker  (above). 

3  Morgan  v.  Mason,  4  E.  D.  Smith,  636  ;*  Durkee  v.  Vermont,  &c.  R.  R.  Co.  29 
Vt.  127.  It  must  be  objected  to,  if  at  all,  at  the  trial,  so  as  to  allow  amendment. 
Divoll  v.  Henken,  48  N.  Y.  672. 

*  Cummings  v.  Nichols,  13  N.  H.  420 ;  Barnes  v.  Ingalls,  39  Ala.  193  ;  Major  v. 
Spies,  66  Barb.  576. 

8  Cummings  v.  Nichols  (above) ;  and  see  Harmer  v.  Cornelius,  6  C.  B.  N.  S.  236. 

6  Wolstenholme  v.  Wolstenholme  Tile  Manuf.  Co.  3  Lans.  457.     Evidence  of  what 
the  employee  had  received  from  other  employers  has  been  held  inadmissible.     Stevens 
v.  Benton,  2  Lans.  156,  s.  c.  39  How.  Pr.  13  ;  and  see  Collins  v.  Fowler,  4  Ala.  647. 
But  compare  Kingsbury  v.  Moses,  45  N.  H.  22?. 

7  Gouge  v.  Roberts,  63  N.  Y.  619  ;  s.  p.  59  Id.  300;  37  Super.  Ct.  (J.  <fc  S.)  433. 
And  see  Cbnpter  on  SALES,  paragraphs  20,  21. 

8  Siegel  v.  Lewis,  54  N.  Y.  661 ;  s.  p.  Gouge  v.  Roberts,  53  Id.  619. 
»  Green  v.  Washburn,  7  Allen,  390. 

10  Williams  v.  Glenny,  16  N.  Y.  389  ;  and  see  Romeyn  v.  Campan,  17  Mich.  327 ;  3 
Am.  Law  Rev.  381. 

II  See  pp.  310-312  and  347  of  this  voL     But  compare  Pullman  v.  Corning,  9  N.  Y. 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.  369 

witness  must  be  shown  to  have  some  special  conversance  with 
the  subject.1  The  question  of  competency  to  express  an  opinion 
is  for  the  court ;  and  if  facts  appear  showing  a  reasonable  degree 
of  conversance,  it  is  not  material  that  the  witness  says  he  does 
not  profess  to  be  an  expert.2  It  is  not  a  matter  of  right  to  cross- 
examine  an  expert  as  to  his  own  professional  income,  by  way  of 
testing  his  qualifications.8  It  is  not  essential  that  the  witness 
should  have  been  employed  in  the  vocation  concerned  ; 4  and  if 
he  has  been  so  employed,  it  is  not  a  disqualification  that  he  has 
abandoned  it  and  engaged  in  other  business.5  If  otherwise  com- 
petent, it  is  no  objection  that  the  witness  is  the  party  examined 
in  his  own  behalf.8 

The  testimony  of  a  qualified  witness,  who  has  heard  the  serv- 
ices described  by  the  other  witnesses,  or  read  their  testimony, 
may  be  asked  as  to  what  would  be  the  value  of  such  services,  if 
rendered  as  stated.7  The  value  may  be  called  for  by  a  general 


93,  affi'g  14  Barb.  174,  where  it  was  held  that  a  witness  who  has  examined  buildings 
may,  though  neither  a  mason  nor  an  expert,  testify  that,  in  his  opinion,  one  was  built 
more  compactly  than  the  other  ;  or  that  a  wall  was  not  worth  covering ;  that  the  ma- 
terials were  worth  more  than  tlie  wall. 

1  Lamoure  v.  Caryl,  4  Den.  370 ;  Elfelt  v.  Smith/l  Minn.  125.    Thus  one  who  has 
owned  and  managed  mills  for  years,  and  employed  millwrights,  is  competent  to  testify 
whether  a  millwright  he  has  often  employed  is  a  good  workman.     Doster  v.  Brown, 
25  Geo.  24.     But  the  mere  fact  of  being  a  miller  does  not  qualify  to  express  an  opin- 
ion oi  the  skillfulness  of  such  work.     Walker  v.  Fields,  28  Geo.  237.     So  one  who  ia 
somewhat  familiar  with  book-keeping  and  accounting,  and  shows  a  somewhat  intimate 
familiarity  with  a  book-keeper's  services,  is  competent  to  testify  to  their  value.    Scott 
v.  Lilienthal,  9  Bosw.  224.     But  one  who  is  a  farmer  and  does  not  know  the  usual 
compensation  of  clerks,  is  jfot.   Lamoure  v.  Caryl,  4  Den.  (N.  Y.)  370,  373.     So  testi- 
mony of  master  builders  as  to  value  of  a  house,  and  of  the  work  and  materials,  is  com- 
petent.    Tebbetts  v.  Haskins,  16  Me.  283,  289.     But  members  of  a  committee  are  not 
rendered  competent  to  express  an  opinion  of  the  value  or  cost  of  fitting  up  a  stage, 
by  the  fact  that,  after  consultation  with  stage  carpenters  and  artists,  they  had  once 
fitted  up  a  theatre.    Forbes  v.  Howard,  4  R.  I.  364. 

A  brick  and  tile  maker  of  some  years'  experience  is  qualified  to  give  an  opinion 
on  the  proper  mode  of  burning  tiles,  and  what  would  be  the  effect  of  burn- 
ing in  one  way  or  another.  Wiggins  v.  Wallace,  19  Barb.  338.  A  carpenter 
of  experience  in  the  place  is  competent  to  testify  to  the  value  of  carpenter  work 
done,  at  the  time  and  place  of  performance.  Major  v.  Spies,  66  Barb.  576.  So 
witnesses  who  were  not  ship-carpenters,  but  who  had  been  in  and  about  ships  as 
masters  and  workmen,  are  competent  to  show  the  difference  between  the  value  of 
a  vessel  as  repaired,  and  its  value  had  it  been  repaired  according  to  contract. 
Sikes  v.  Paine,  10  Ired.  (N.  C.)  280.  So  a  physician  is  competent  as  to  value  of  a 
nurse's  services.  Woodward  v.  Bngsbee,  2  Hun,  128.  A  mason  may  be  asked  how 
long,  in  his  opinion,  it  would  take  to  dry  the  walls  of  a  house  so  as  to  render  it 
fit  and  safe  for  human  habitation.  Sedgw.  on  Dam.  591 ;  Smith  v.  Gugerty,  4  Barb. 
515. 

2  Mercer  v.  Vose,  40  Super.  Ct.  (J.  <fe  S.)  218. 

3  Harlaud  v.  Lilienthal,  53  N.  Y.  438. 

4  Pullman  v.  Corning,  14  Barb.  174,  9  N.  Y.  93  ;    Carroll  v.  Welch,  26.  Tex.  147; 
Barnes  v.  Ingalls,  39  Ala.  193. 

»  Bearss  v.  Copley,  10  N.  Y.  93 ;  Robertson  v.  Knapp,  35  Id.  91,  s,  o.  83  How.  Pr. 
309. 

6  Nourry  v.  Lord,  3  Abb.  Ct.  App.  Dec.  392. 

1  McCollum  v.  Seward,  62  N.  Y.  316  ;  Beekman  v.  Platner,  15  Barb.  550 ;  Reynolds 
V.  Robinson,  64  N.  Y.  589.  As  to  the  proper  form  of  the  question,  see  pp.  811  and  314  of 

24 


370  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

question,  leaving  the  details  to  cross-examination.1  The  witness 
may  be  asked  to  describe  the  peculiarities,  the  excellencies,  or 
the  defects,  which  enter  into  his  estimate  of  value  ;2  and  it  is  not 
error  to  allow  him  to  be  asked,  on  cross-examination,  what  he 
would  have  undertaken  the  work  for.8 

23.  Modification  of  contract.] — Oral  evidence  is  admissible  to 
prove  a  new  and  distinct  agreement  made  upon  a  good  and  valid 
consideration,  although  the  previous  written  agreement  had  been 
partly  performed,  and  rescision  is  not  shown  by  writing ; 4  and 
the  rule  is  the  same  though  the  previous  agreement  was  sealed.5 

"Where  the  statute  of  frauds  requires  a  writing,  an  oral  modi- 
fication does  not  satisfy  the  statute* 

24.  Performance.'} — On  a  special  contract,  substantial  perform- 
ance, notwithstanding  slight  defects  caused  by  inadvertence  or  un- 
intentional omissions,  may  be  proved,  unless  full  performance  be  an 
express  condition  :  then  it  must  be  strictly  proved,7  or  defendant's 
assent  to  deviation,8  or  his  prevention  of  performance,  be  shown 

this  vol.  And  compare  Lewis  v.  Trickey,  20  Barb.  387,  with  Stevens  v.  Benton,  2 
Lans.  156, 164,  s.  c.  39  How.  Pr.  13,  34  ;  Scott  v.  Lillienthal,  9  Bosw.  224,  228. 

1  Parker  v.  Parker,  33  Ala.  459,  462  ;  Garfield  v.  Kirk,  65  Barb.  464. 

And  where  a  witness  has  testified  to  value  of  services,  on  the  theory  that  tlie  case 
was  a  difficult  one,  the  defendant  has  a  right  to  ask  him,  on  cross-examination,  whether 
assuming  the  nature  of  the  case  were  such  as  defendant  claims  it  was,  he  would  not  esti- 
mate the  value  lower.  Garfield  v.  Kirk  (above).  Butsee  Siegel  v.  Lewis,  54  N.  Y.  651. 

In  the  absence  of  market  value  of  a  structure,  cost  is  relevant,  in  connection  with 
opinions  as  to  value.  Patterson  v.  Kingsland,  8  Blatchf.  278. 

A  •ompetent  expert  who  has  seen  the  engine  and  heard  the  testimony  as  to  the  re- 
pairs upon  it,  the  value  of  which  are  sued  for,  may  be  asked  if  it  be  possible  that  such 
an  engine  could  be  so  damaged  as  testified  to,  that  a  reasonable  charge  for  its  repair 
could  amount  to  the  sum  claimed.  Tyng  v.  Fields,  3  Hun,  75. 

a  Jackson  v.  N.  Y.  Central,  <fcc.  R.  R.  Co.  2  Supm.  Ct.  (T.  &  C.)  653.  But  it  is  not 
error  to  exclude  a  question  as  to  how  he  arrived  at  his  opinion,  as  too  general.  Booker 
V.  Adkins,  48  Ala.  N.  8.  529. 

8  Oilman  v.  Gard,  29  Ind.  291, 293. 

4  Piatt's  Adm'r  v.  U.  S.  22  Wall.  506,  and  cases  cited.     There  it  was  held  compe- 
tent to  prove  by  parol  that  a  contractor  with  the  government  refused  to  continue  per- 
formance of  his  written  contract,  because  he  was  unpaid,  and  thereupon  orally  agreed 
to  continue  at  higher  prices  and  wait  for  payment,     s.  P.  Stewart  v.  Keteltas,  36  N.  Y. 
388,  affi'g  9  Bosw.  261. 

5  Munroe  v.  Perkins,  9  Pick.  298,  and  cases  cited.     Compare  Tinker  v.  Geraghty, 

1  E.  D.  Smith,  687,  and  2  Abb.  N.  Y.  Dig.  new  ed.  tit.  CONTRACTS,  modi/.    Oral  evi- 
dence is  competent  to  show  that  the  time  of  performance  of  the  work  was  extended 
or  waived ;  and  this  need  not  be  established  by  positive  testimon y ;  it  may  be  inferred 
from  circumstances.    Meehan  v.  Williams,  2  l)aly,  367,  B.  c.  36  How.  Pr.  73.   The  re- 
quest of  the  employer  to  make  a  change  in  the  mode  of  construction,  of  a  raturo 
which  both  parties  know  to  require  more  time,  implies  consent  to  a  reasonable  exten- 
sion of  time.     Manuf.  Co.  v.  U.  S.  17  Wall.  595.     Where  the  defense  to  a  builder's 
suit  for  the  money  due  on  the  contract  is  a  claim  for  damages  stipulated  for  his  deliiy 
in  completing  a  small  part  of  the  work,  and  it  is  shown  that  the  contract  was  changed 
by  introducing  extra  work,  the  burden  of  proof  is  on  the  party  claiming  the  dam- 
ages, to  show  either  that  the  delay  was  but  slightly  produced  by  the  change  in  the 
contract,  or  that  it  was  caused  by  the  builder's  negligence  or  fault.  Bridges  v.  Hyatt, 

2  Abb.  Pr.  449. 

6  Swain  v.  Seamens,  9  Wall.  254. 

'  Phillip  v.  Gallant,  62  N.  Y.  264,  and  cas.  cit. 

8  Rose.  N.  P.  658 ;  Hayden  v.  Hayward,  1  Camp,  180,  Part  performance  followed 
by  his  voluntary  and  unexcused  cessation  of  performance  is  not  enough.  Jennings 
v.  Camp,  13  Johns.  94;  Lantry  v.  Parks,  8  Cow.  63.  In  an  action  on  an  agreement 


BY  PERSON   EMPLOYED,— FOR  COMPENSATION.  371 

by  the  act  of  the  other  party  ;*  or  other  excuse  exonerating  him.2 
If  the  employer  refuses  to  perform  on  his  part,  and  actually  pre- 
vents performance  by  the  contractor,  it  is  unnecessary  for  the 
latter  to  prove  readiness  and  ability  to  perform.8 

In  a  contract  to  perform  work  as  soon  as  possible,  or  within  a 
reasonable  time,  evidence  of  the  surrounding  circumstances  is 
competent  to  show  what  was  understood  as  a  reasonable  time.* 

When  the  thing  to  be  performed  is  expressed  in  terms  of  art, 
or  technical  terms,  it  is  competent  to  ask  a  qualified  witness  as  to 
whether  the  stipulation  calls  for  a  particular  thing,5  and  as  to  the 
manner  of  performance.6 

The  mere  fact  that  defendant  took  possession  of  his  property, 
whether  real7  or  personal,8  does  not  necessarily  amount  to  an  ad- 
mission that  a  contract  to  do  work  thereupon  had  been  so  per- 
formed as  to  impose  any  liability  on  him.  The  fact«that  defend- 
ant clandestinely  removed  the  thing,9  or  refused  to  allow  its 
inspection,10  so  as  to  preclude  plaintiff  having  testimony  to  its 
quality,  is  relevant. 

25.  Certificates  of  performance.'] — Certificates  of  performance, 
given  by  a  third  person,  although  he  superintended  the  work,  are 
not  competent,11  unless  made  so  by  agreement,  or  unless  coupled 
with  evidence  that  the  person  was  the  authorized  agent  of  de- 
fendant to  give  such  certificate.12  If  the  promise  to  pay  is  condi- 
tioned on  the  work  being  done  to  the  satisfaction  of  a  third  per- 
son, evidence  of  performance  is  not  enough,  without  showing  the 
satisfaction  of  that  person.13  But  a  stipulation  to  pay  according 

to  pay  a  certain  portion  of  the  profits  of  a  joint  adventure,  upon  condition  that  in- 
formation furnished  by  the  plaintiff  should  be  true,  the  burden  is  on  plaintiff  to  show 
that  the  information  was  true.  Strong  v.  Place.  4  Robt.  385,  8.  c.  33  How.  Pr.  114. 
Although  if  there  was  no  such  expressed  condition  the  burden  would  be  upon  de- 
fendant to  prove  falsity,  if  he  relied  upon  that.  Id. ;  but  compare  Townseud  v. 
Neale,  2  Camp.  191. 

1  Henderden  v.  Cook,  66  Barb.  23. 

9  Wolfe  v.  Howes,  20  N.  Y.  197,  affi'g  24  Barb.  174,  666.  The  objection  that  the 
contract  was  entire,  so  that  full  performance  must  be  shown,  if  not  taken  at  the  trial, 
is  not  available  to  defendant  on  appeal.  Jenkins  v.  Wheeler,  2  Abb.  Ct.  App.  Dec.  442. 

3  Howell  v.  Gould,  2  Abb.  Ct.  App.  Dec.  418. 

4  See  Hydraulic  Engineering  Co.  v.  McHaffie,  27  "Weekly  R.  222. 

5  Colwell  v.  Lawrence,  38  N.  Y.  71,  s.  c.  36  How.  Pr.  306,  affi'g  38  Barb.  643  ;   24 
How.  Pr.  324. 

6  Reed  v.  Hobbs,  3  Til.  (2  Scam.)  297;  Conrad  v.  Trustees  of  Ithaca,  16  N.  Y.  158. 
The  testimony  of  the  architect  should  be  regarded  as  controlling,  in  a  conflict  of  evi- 
dence, whether  a  building  is  erected  in  conformity  with  the  contract.     Tucker  v. 
Williams,  2  Hilt.  662.     As  to  production  of  plans  on  the  trial,  see  Stuart  v.  Binsse, 
10  Bosw.  436,  and  p.  321  of  this  vol. 

1  Reed  v.  Board  of  Education  of  Brooklyn,  4  Abb.  Ct.  App.  Dec.  24. 

8  The  Isaac  Newton,  1  Abb.  Adm.  11,  19. 

9  Kidd  v.  Belden,  19  Barb.  266. 

10  Bryant  v.  Still  well,  24  Penn.  St.  314,  317. 

11  Reed  v.  Scituate,  7  Allen,  141,  144. 

"  Smith  v.  Kahili,  17  111.  67;  Sutherland  v.  Kittredge,  19  Me.  424. 

13  Butler  v.  Tucker,  24  Wend.  447,  and  cases  cited;  Barton  v.  Hermann,  11  Abb, 
Pr.  N.  S.  378.  Compare  Hart  v.  Lauman,  29  Barb.  410  •.  Sharpe  v.  San  Paulo  Eailw. 
Co.  L.  R.  8  Ch.  App.  697,  B.  c.  6  Moak's  Eng.  516. 


372  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

to  estimates  of  a  third  person,1  or  that  any  matter  of  difference 
shall  be  determined  by  a  third  person,2  without  making  his  act  a 
condition  or  conclusive,  does  not  exclude  other  evidence  of  per- 
formance, or  non-performance.8  If  the  contract  contemplates  a 
conclusive  certificate,  plaintiff  must  prove  one,4  substantially  com- 
plying with  the  stipulation.5  A  general  certificate,  to  a  conclusion 
implying  all  the  particulars,  is  enough,6  but  an  evasive  one  is  not.7 
On  a  question  arising  whether  the  certificate  is  sufficient  within 
this  rule,  evidence  that  defendant  made  payments  to  plaintiff 
under  the  same  contract,  on  similar  certificates,  without  objection 
to  their  form,  at  the  time  of  presentation,  is  relevant  and  conclu- 
sive.8 Under  these  rules  a  certificate  is  conclusive  in  plaintiff's 
favor,  unless  defendant  can  show  that  it  was  procured  by  fraud.9 
Plaintiff  may  dispense  with  the  requirement  of  a  certificate  by 
showing  that  the  third  person  had  unreasonably,  and  in  bad  faith, 
refused  the  certificate,  and  thereupon  proving  performance  of 
the  work ;  or  by  showing  that  defendant  had  waived  the  matters 
to  which  the  certificate  was  required.11 

If  the  stipulation  makes  the  third  person  an  arbitrator,  notice 
of  his  examination  is  material.12 

26.  Excuse!} — Evidence  of  an  excuse  for  partial  non-perform* 
ance  is  objectionable  under  an  allegation  of  performance,  but 
should  be  admitted  by  amendment  if  defendant  is  not  misled.13 

27.  Shop-looks  and  other  accounts  of  a  party  offered  in  his 
own  favor, ,] — The  rules  already  stated  on  this  point 14  admit  the 
account  of  mechanics  and  tradesmen  ; 15  and,  upon  the  same  prin- 
ciple, those  of  physicians.16 


I  Sherman  v.  Mayor,  Ac.  of  N.  Y.  1  N.  Y.  316. 

s  Hurst  v.  Litchfield,  39  N.  Y.  377,  and  cases  cited.  Compare  Morris  Canal  A  B. 
Co.  v.  Nathan,  2  Hall,  239. 

3  Bigler  v.  Mayor,  Ac.  of  New  York,  253. 

4  Smith  v.  Brady,  17  N.  Y.  173,  s.  p.  1859,  McMahon  v.  N.  Y.  A  Erie  R.  R.  Co. 
20  N.  Y.  463. 

6  Adams  v.  Mayor,  Ac.  of  N.  Y.  4  Duer,  295  ;  Morgan  v.  Birnie,  9  Bing.  672.  The 
certificate  need  not  be  given  in  writing,  unless  expressly  required  by  the  contract. 
Roberts  v.  Watkins,  14  C.  B.  N.  S.  592,  s.  c.  L.  J.  32  C.  P.  291. 

6  Stewart  v.  Keteltas,  36  N.  Y.  388,  affi'g  9  Bosw.  261 ;  Wyckoff  v.  Myers,  44  Id.143. 

7  Smith  v.  Briggs,  3  Den.  73. 

8  Bloodgood  v.  Ingoldsby,  1  Hilt.  388. 

9  Wyckoff  v.  Meyers,  44  N.  Y.  143.     Unless  the  contract  requires  proof  of  per- 
formance and  certificate.    Glacius  v.  Black,  50  N.  Y.  151. 

10  Thomas  v.  Fleury,  26  N.  Y.  26 ;  Bowery  Nat.  Bank  v.  Mayor,  Ac.  of  N.  Y.  63 
N.  Y.  336,  rev'g  8  Hun,  639.  Contra,  Milner  v.  Field,  5  Exch.  829.  Or  that  the  de- 
fendant had  such  secret  relations  with  the  third  person  as  to  make  the  latter  inter- 
ested. Kimberley  v.  Dick,  L.  R.  13  Eq.  1. 

II  Smith  v.  Gugerty,  4  Barb.  614;  compare  Barton  v.  Hermann,  11  Abb.  Pr.  N. 
S.  378.     See  further  as  to  the  subject  of  certificates.     1  Moak*s  Eng.  532,  n. ;  6  Id. 
628,  871 ;  1  Redf.  on  Rw.  435 ;  Schencke  v.  Rowell,  3  Abb.  N.  C.  42. 

12  McMahon  v.  N.  Y.  A  Erie.  R.  R.  Co.  20  N.  Y.  463;  Collins  v.  Vanderbilt,  8 
Bosw.  313. 

13  Hosley  v.  Black,  28  N.  Y.  438,  B.  c.  26  How.  Pr.  97. 

14  Page  322  of  this  vol. 

15  Linnell  v.  Sutherland,  11  Wend.  668;  The  Potomac,  2  Black,  581. 

"  Foster  v.  Coleman,  1  E.  D.  Smith  85 ;   Knight  v.  Cunnington,  6  Hun.  100. 


BT  PERSON  EMPLOYED,— FOR  COMPENSATION.  373 

Charges  made  as  each  part  of  an  entire  work  was  completed  are 
not  incompetent  ;x  but  charges  for  anything  done  under  a  supposed 
special  contract,  but  which,  by  reason  of  a  rescission  of  the  con- 
tract, afterwards  became  matter  of  account  by  pperation  of  law, 
cannot  be  proved  by  the  party's  book.  There  must  be  a  right  to 
make  an  efficacious  charge  when  the  service  is  done.2  Pay-rolls 
or  check-rolls  between  a  contractor  and  his  laborers,  though  such 
as  would  be  admissible  as  accounts  between  him  and  thejm,  are 
not  admissible  in  evidence  against  the  contractor's  employer,  to 
enable  the  contractor  to  establish  a  quantum  meruit,  on  the  rescis- 
sion of  the  contract,  unless  upon  the  ground  that  they  were  orig- 
inal entries.8 

28.  Defenses — What  Admissible  under  Denial.'] — Under  a 
general  denial,  defendant  may  prove  any  circumstances  tending 
to  show  that  he  was  never  indebted  at  all,  or  that  he  never  owed 
so  much  as  was  claimed ;  for  example,  that  he  never  incurred  the 
debt ;  or  that  the  services,  either  in  whole  or  in  part,  were  ren- 
dered as  a  gratuity ;  or  that  plaintiff  had  himself  fixed  a  less  price 
for  them  than  he  claimed  to  recover ;  or  that  they  were  rendered 
upon  the  credit  of  some  other  person  than  the  defendant.4  If 
the  complaint  is  a  mere  allegation  of  indebtedness  the  rule  is  still 
more  liberal.5  But  a  general  denial  does  not  admit  evidence  that 
plaintiff  has  converted  the  thing,  in  respect  of  which  the  services 
were  alleged  to  have  been  rendered.6  If  the  complaint  is  on  a 
quantum  meruit,  not  for  an  agreed  price,  a  general  denial  admits 
evidence  in  reduction  of  the  value,  such  as,  that  the  work  was 
unskillfully  done,  or  that  defendant  had  discharged  plaintiff,  or 
given  him  notice  to  stop.7  If  the  answer  admits  the  employment 
and  service  alleged,  and  only  denies  the  value,  the  quantity  of 
work  is  not  in  issue,  but  only  the  value ; 8  otherwise  if  it  only  ad- 
mits employment  and  some  service,  not  indicating  the  amount, 
and  denies  all  other  allegations.9 

If  the  complaint  is  for  an  agreed  price,  a  general  denial  does 
not  admit  evidence  of  unworkman-like  manner,10  nor  of  negli- 
gence or  affirmative  misconduct ; n  unless  the  contract  as  pleaded 
requires  plaintiff  to  show  performance  of  its  stipulations,  in  which 


Contra,  as  to  necessity  of  preliminary  services,  proof  that  physician  kept  correct 
books,  Ac.,  Clarke  v.  Smith,  46  Barb.  30. 

1  Kaughley  v.  Brewer,  12  Sergt.  <fe  R.  133. 

s  COWEN,  J.,  Merrill  v.  Ithaca  <fc  Oswego  R.  R.  Co.  16  Wend.  585,  and  casps  cited. 

8  Merrill  v.  Ithaca  <fe  Oswego  R.  R.  Co.  16  Wend.  586.  For  the  rule  as  to  original 
entries  see  pp.  320-322  of  this  vol. 

4  Schermerhorn  v.  Van  Allen,  18  Barb.  29. 

8  Brown  v.  Colie,  1  E.  I).  Smith,  265. 

6  Wood  v.  Belden,  54  N.  Y.  658,  rev'g  59  Barb.  549.    This  is  a  counter-claim. 
Wadley  v.  Davis,  63  Barb.  500. 

7  Raymond  v.  Richardson,  4  E.  D.  Smith,  171 ;  a.  p.  Bridges  v.  Paige,  13  CaL  64(1 

8  Van  Dyke  v.  Maguire,  67  N.  Y.  429. 

9  Albro  v.  Figuera,  60  Id.  630. 

10  Kendall  v.  Vallejo,  1  Cal.  371. 

11  Stoddard  v.  Treadwell,  26  CaL  294,  305. 


374:  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

case  a  general  denial  allows  evidence  to  disprove  performance.1 
If  the  answer  alleges  generally  that  plaintiff  had  failed  to  fulfill 
the  contract,  and  also  sets  forth  particular  defaults,  he  is  not  con- 
fined to  proving  the  particular  defaults  stated,  but  may  prove  any 
defaults  under  his  general  allegation.8  If  there  is  no  general  al- 
legation, defendant  may  be  confined  to  proof  of  the  default  al- 
leged.3 If  the  contract  is  special,  a  general  denial  admits  evidence 
that  it  was  different  from  that  alleged,  for  instance,  a  qualifying 
contract  of  the  same  date,4  or  a  usage  which  in  contemplation  of 
law  formed  an  integral  part  of  the  agreement ; 5  but  a  denial  of 
the  contract  only,  does  not  admit  evidence  of  a  mutual  abandon- 
ment of  it.8 

If  there  is  a  special  contract,  which  the  result  of  the  work 
corresponds  to,  evidence  that  the  thing  will  not  answer  its  pur- 
pose is  irrelevant.7  On  the  other  hand,  if  defendant  shows  that 
the  contract  was  not  faithfully  performed,  plaintiff  cannot  prove 
that  the  work  would  have  been  worth  more  than  the  contract 
price  had  it  been  performed.8  An  excess  in  the  performance,  if 
not  shown  to  be  detrimental,  is  not  relevant.9  But  a  departure 
may  be,  though  not  shown  to  be  detrimental.10 

If  the  complaint  is  general,  defendant  must  aver  a  special 
contract,  if  he  relies  on  it  to  show  that  by  its  terms  nothing  is 
due.11  But  under  a  general  denial  he  may  prove  an  agreement 
fixing  a  less  price  than  that  sued  for.12 

If  the  complaint  is  general  for  indebtedness,  and  does  not 
allege  a  contract,  the  statute  of  frauds  is  available  under  a  general 
denial.13  Where  the  complaint  sets  forth  a  contract  and  the  an- 
swer admits  it,  the  statute  is  not  available  unless  the  facts  to  in- 
voke the  statute  of  frauds  are  pleaded.14 

29.  Disproof  of  employment^ — In  a  conflict  of  evidence  as  to 
who  was  the  real  employer,  it  is  competent  for  defendant  to  show 
that  he  employed  another  person  to  do  the  whole  work,15  and  paid 
him.16  Evidence  that  plaintiff  received  payments  from  a  third  per- 


1  Siseon  v.  "Willard,  25  Ward.  672. 

*  Trimble  v.  Stilwell,  4  E.  D.  Smith,  512. 

*  Brown  v.  Colie,  1  Smith,  265. 

4  See  Marsh  v.  Dodge,  66  N.  Y.  533,  rev'g  4  Hun,  278. 
'•Miller  v.  Ins.  Co.  of  North  Am.  1  Abb.  New  Cas.  470. 

*  Laraway  v.  Perkins,  10  N.  Y.  371. 

7  Kendall  v.  Vallejo,  1  Cal.  371,  373. 

8  Williams  v.  Keech,  4  Hill,  168. 

9  Turner  v.  Haight,  16  N.  Y.  465. 

10  See  Swain  v.  Seamens,  9  Wall.  254. 

11  Reed  v.  Scituate,  7  Allen,  141;  Hagan  v.  Burch,  8  Iowa,  809,  312.     Where  a 
plaintiff  closes  his  case  without  its  appearing  that  there  is  any  written  contract  re- 
lating to  the  subject-matter  of  the  action,  the  defendant,  if  he  means  to  set  up  that 
there  is  such  a  contract,  must  produce  it.     Magnay  v.  Knight,  1  M.  <k  Gr.  944,  950. 

12  Budreaux  v.  Tucker,  10  La.  Ann.  80. 

13  Alger  v.  Johnson,  6  Supm.  Ct  (T.  &  C.)  632. 

14  Id. 

15  Poineroy  T.  Pierce,  6  Hun,  119;  s.  P.  Pelanne  v.  Coudreau,  16  La.  Ann.  127. 

16  Gerish  v.  Chartier,  1  C.  B.  13 ;  Steph.  Ev.  18. 


BY  PERSON  EMPLOYED,— FOR  tOMPENSATION.  375 

son  is  competent,  as  tending  to  show  that  it  was  to  him  that  plaintiff 
looked  as  employer.1  The  declarations  of  defendant,  a  part  of  the 
res  gestce  of  the  circumstances  under  which  the  request  was  made, 
are  competent  in  his  own  behalf.2  Where  the  defence  is  that  by 
agreement  the  business  was  carried  on  for  joint  account  evidence 
of  the  acts,  doings  and  declarations  of  the  parties,  the  mode  of 
transacting  business  and  keeping  the  accounts,  the  dealings  with 
others,  and  a  memorandum  in  the  handwriting  of  one  and  held  by 
the  other,  though  unsigned,  tending  to  show  such  an  agree- 
ment, are  competent.8  In  disproof  of  the  allegation  of  employ- 
ment, evidence  of  plaintiffs  conduct  during  the  period,  inconsis' 
tent  with  the  relation,  is  relevant.4 

30.  Payment.'] — In  the  case  of  weekly  wages,  systematically 
paid  to  a  number  of  workmen  or  servants,  evidence  that  plaintiff 
had  been  seen  waiting  with  the  others  to  receive  his  wages  is 
competent  to  go  to  the  jury,  in  connection  with  lapse  of  time  be- 
foresuit,  from  which  to  infer  payment.5    But  the  mere  fact  that 
fellow  laborers  were  paid  does  not  raise   a  presumption  that 
plaintiff  was.6    Nor  does  mere  lapse  of  time  raise  such  a  pre- 
sumption, in  the  case  of  an  ordinary  domestic  servant.7 

31.  Former  adjudication.'] — A  former  recovery  for  a  part  of 
a  running  account  for  continuous  service,  such  as  that  of  a  phy- 
sician, bars  a  new  action  for  another  part,  even  though  the  items 
be  separate  and  distinct.8    Otherwise,  if  the  former  recovery  was 
on  a  distinct  and  separate  contract.9 

32.  Limitations.] — In  applying  the  statute  of  limitations  to  a 
claim  for  services  rendered  continuously  during  a  long  series  of 
years,  it  may  be  presumed  that  the  contract  contemplated  yearly 
or  monthly  payments,10  and  if  the  employer  is  deceased,  the  stat- 
utes is  deemed  to  run  from  the  completion  of  such  periods  of 
service,  unless  there  is  sufficient  evidence  of  the  decedent's  agree- 
ment to  make  provision  for  compensation  by  a  disposition  of  his 
property  at  death.11 


1  Gilmore  v.  Atlantic  &  Pacific  R.  R.  Co.  35  Barb.  279. 

2  Smi  h  v.  Smith,  1  Sand.  S.  C.  206. 
8  Dickinson  v.  Robbins,  1 2  Pick.  74. 

4  See  Daylon  v.  Hall,  8  Blackf.  Ind.  556 ;  Weber  v.  Kingsland,  8  Bosw.  415. 
8  Lucas  v.  Novosilieski,  1  Esp.  296 ;  and  see  Seller  v.  Norman,  4  C.  <fc  P.  80. 
6  Filer  v.  Peebles,  8  N.  H.  226,  231. 

I  Suediker  v.  Everingham,  27  N.  J.  L.  (3  Dutch.)  143 ;  and  i-ee  Holmes  T.  The 
Lodemia,  Crabbe,  434. 

8  Oliver  v.  Holt,  11  Ala.  574 ;  compare  O'Beirne  v.  Lloyd,  43  N.  Y.  248. 

9  Phillips  v.  Berick,  16  Johns.   139.     As  to  judgments  for  wages  or  price  and 
judgments  for  discharge  or  breach,  compare  L.  11.  10  C.  P.  29,  8.  c   11  Moak's  En?. 
232";  Routledge  v.  Hislop,  2  E.  <fc  E.  549;  De  Wolf  v.  Crandall,  34  Supor.  Ct.  (J.  A 
S.)  14;  Davenport  v.  Hubbard,  46  Vt.  200,  s.  o.  14  Am.  R.  620;  and  cases  cited  In 
note  1  on  p.  358  of  this  vol. 

10  Davis  v.  Gorton,  16  N.  Y.  255. 

II  Nicholl  v.  Larkin,  2  Redf.  Surr.  R.  236. 


376  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

II.  RtJLES  PECULIARLY  APPLICABLE  TO  PARTICULAR  KINDS  OF 

SERVICE. 

33.  Advertising. ,] — Evidence  of  sending  in  an  advertisement, 
not  in  itself  implying  a  limitation — such  as  is  implied  bv  an  ad- 
vertisement of  a  sale  on  a  day  named,  and  other  transitory  an- 
nouncements— and  without  any  direction  as  to  number  of  inser- 
tions, implies  a  direction  to  continue  till  stopped.1    Where  a 
limitation  is  expressed  or  implied,  evidence  that  the  advertiser 
took  the  paper,  and  that  the  advertisement  was  brought  to  his 
knowledge,  is  not  enough  to  sustain  a  finding  that  he  authorized 
the  continuation  of  it.2    For  advertising  after  valid  notice  to  dis- 
continue, the  price  is  not  recoverable ;  the  claim,  if  any,  must  be 
for  damages.3 

It  is  better  to  be  prepared  to  produce  the  file  as  the  best  evi- 
dence of  actual  publication ; 4  but  an  advertising  agent  suing  on  a 
contract  to  insert  in  papers  of  a  certain  description,  must  at  least 
prove  the  papers  to  have  been  such,  and  continuance  for  the  time 
stipulated.5  The  rule  as  to  shop-books 6  applies  to  the  books  of  a 
newspaper  printer  to  show  his  authority  and  prices,  in  connection 
with  such  evidence  of  performance.7  A  witness  who  wrote  <out 
a  notice  to  be  advertised,  and  gave  it  to  another  person  to  be  in- 
serted, but  has  no  personal  knowledge  of  the  publication,  cannot 
be  examined,  in  the  absence  of  all  other  proof,  as  to  the  contents 
published.8 

Where  the  advertising  was  agreed  to  be  done  in  some  special 
form, — such  as  a  chart, — not  particularly  described  in  the  written 
contract,  oral  evidence  is  admissible  to  show  that,  at  the  time  the 
contract  was  made,  the ,  plaintiff  agreed  to  make  the  chart  of  a 
certain  material,  and  to  publish  it  in  a  certain  manner.9 

On  the  question  of  value,  a  qualified  witness  may  be  asked 
what  is  a  fair  price  for  advertising  such  a  card  in  the  manner  pub- 
lished by  the  plaintiff.10 

34.  Artists;  Architects;  Authors.] — In  an  wrtisfs  action  for 
price  of  a  portrait,  evidence  that  defendant  admitted  that  the 
portrait  was  good  and  accepted  a  delivery,  is  enough  to  go  to  the 
jury,  though  there  be  conflicting  evidence  on  the  question  whether 


1  Ahem  v.  Standard  Life  Ins.  Co.  2  Sweeny,  441. 

s  Dake  v.  Patterson,  5  Hun,  658.  One  who  publishes  an  advertisement  by  direc- 
tion of  a  sheriff,  marshal  or  other  officer,  cannot  recover  against  the  party  without 
showing  that  the  latter  authorized  the  publication.  Raney  v.  Weed,  3  Sandf.  677, 
8.  c.  8  N.  Y.  Leg.  Ob*.  182. 

3  Stephens  v.  Howe,  34  Super.  Ct.  (2  J.  &.  S.)  133. 

4  This  was  held  necessary  in  Richards  v.  Howard,  2  Nott  &  M'C.  474.     Contra, 
Enloe  v.  Hall,  1  Humph.  (Tenn.)  303,  310.    Compare  next  paragraph. 

*  Holloway  v.  Stephens,  2  Supm.  Ct.  (T.  &  C.)  662. 

6  Pages  322  ami  872  of  this  vol. 

7  Richards  v.  Howard  (above) ;  Thomas  v.  Dyott,  1  Nott  &  M'C.  186. 

8  City  Bank  of  Brooklyn  v.  Dearborn,  20  N.  Y.  244. 

•  Stoops  v.  Smith,  100  Mass.  63,  s.  c.  1  Am.  R.  85.      . 
10  Palmer  v.  White,  10  Cush.  321,  323. 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.      377 

it  was  really  a  good  likeness.1  It  is  not  necessary  that  a  witness 
be  an  artist,  in  order  to  be  competent  to  express  an  opinion  on  the 
question  of  likeness.2 

On  the  question  whether  an  architect's  employment  was  con- 
ditioned on  the  adoption  of  his  plans,  the  fact  that  he  took  the 
plans  away  does  not  raise  a  legal  presumption  against  him.8  If 
it  appear  that  the  .plans  were  left  with  the  employer,  the  nature 
of  the  action  is  sufficient  notice  to  produce  them.4  In  the  absence 
of  express  agreement,  it  is  a  question  for  the  jury  whether  the 
commission  charged  is,  under  the  circumstances,  reasonable  or 
unreasonable.5 

In  an  action  by  an  author  or  writer,  for  compensation,  it  is 
not  necessary  to  produce  the  work  written.6  The  authorship  being 
in  question,  it  is  not  competent  to  ask  the  opinion  of  a  witness 
(founded  merely  on  his  having  read  the  articles,  and  professing  a 
knowledge  of  the  plaintiffs  style  of  writing),  as  to  whether  they 
were  written  by  plaintiff.7  On  the  question  of  value,  the 
opinion  of  the  writer,  formed  with  reference  to  the  time  and 
labor  employed  in  its  preparation,  is  competent,8  and,  if  uncontra- 
dicted,  is  sufficient.9 

35.  Attorney  and  Counsel.'} — An  attorney  must  prove  an  em- 
ployment, either  original,  or  by  recognition  during  the  progress 
of  the  suit;10  or  a  promise  to  pay,  made  with  knowledge  of 
service  rendered.  Evidence  of  services  rendered  merely  is  not 
enough.11  If  retainer  is  proved,  the  fact  that  the  service  was  for  a 
third  person  does  not  defeat  the  recovery.12  A  paper  in  the 


1  Francois  v.  Ocks,  2  E.  D.  Smith,  417. 

9  Barnes  v.  Ingalls,  39  Ala.  193. 

»  Nourry  v.  Lord,  3  Abb.  Ct.  App.  Dec.  397. 

4  Hooker  v.  Eagle  Bank  of  Rochester  30  N.  Y.  83. 

5  Rose.  N.  P.  558,  citing  Chapman  v.  De  Tastet,  2  Stark.  294  ;  Upsdell  v.  Stewart, 
Peake,  1 93.     The  schedule  of  the  American  Institute  of  Architects  in  New  York  is  held 
not  a  proper  rule  of  value  of  services  elsewhere.     Mason  v.  United  States.  4  Ct.  of  CL 
496.    'As  to  defects  in  the  work,  see  Peterson  v.  Rawson,  34  N.  Y.  370;  2  Bosw.  234. 

•  Houghton  v.  Paine,  29  Vt.  57. 

1  Lee  v.  Bennett,  How.  App.  Cas.  187,  202. 

8  Babcock  v.  Raymond,  2  Hilt.  61. 

'  Id. ;  s.  P.  Dickenson  v.  Fitchburgh,  13  Gray,  546,  656. 

10  Hotchkiss  v.  Le  Roy,  9  Johns.  142  ;    Burghart  v.  Gardner,  3  Barb.  64.     (For 
other  earlier  cases  see  2  Greenl.  Ev.  120,  §  139,  <fcc.) 

11  Id.     Attorneys  transacting  business  as  brokers,  and  entitled  to  compensation  as 
euch,  must  prove  express  contract,  to  recover  a  counsel  fee  lor  conversations  with 
their  employers  about  the  business.     Walker  v.  Am.  Nat.  Bank,  49  N.  Y.  659. 

12  Wilson  v.  Burr,  25  Wend.  386.     As  to  proving  ratification  of  employment  of 
counsel, — see  Harnett  v.  Garvey,  36  Super.  Ct.  (4  J.  &  8.)  326.     Retainer  by  one 
partner,  Merchant  v.  Belding,  49  How.  Pr.  344.     As  to  combined  employment,  see 
Smith  v.  Duchardt,  45  N.  Y.  597;    Van  Rensselaer  v.  Aikin,  44  N.  Y.  126,  rev'g  44 
Barb.  647.     For  rules  applicable  to  contingent  agreements,  see  Ogden  v.  Des  Arts,  4 
Duer,  275 ;    Ely  v.  Spofford,  22  Barb.  231 ;    Wood  v.  Young,  5  Wend.  620 ;    Wads- 
worth  v.  Green,  1  Sand'.  78 ;  Satterlee  v.  Jones.  3  Duer,  102 ;  Marsh  v.  Holbrook,  3 
Abb.  Ct.  App.  Dec.   176;   Coughlin  v.  N.  Y.  Cent.  R.  R.  71  N.  Y.  443,  rev'g  8  Hun, 
136 ;  Whitehead  v.  Kennedy,  69  N.  Y.  462,  467,  revg  7  Hun,  230. 


878  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

cause,  signed  by  the  client,  is  better  than  oral  evidence ;  *  but 
there  must  be  proof  of  the  signature. 2 

For  services,  under  the  Code  of  Procedure,8  an  attorney  or 
counsellor  must  prove,  in  the  absence  of  an  express  agreement  as 
to  amount,  the  value  of  the  services  actually  rendered.4  Taxable 
costs  are  not  the  measure  ;  and  production  of  the  judgment  roll 
showing  the  costs  taxed  is  not  alone  enough  ; 5  but  the  amount 
of  taxable  costs  is  competent  as  bearing  on  the  value  of  the 
services.6  Where  the  amount  of  compensation  to  be  paid  was 
not  fixed,  evidence  of  what  is  ordinarily  charged  by  attorneys  or 
counsel  in  cases  of  the  same  character,  is  admissible.7  The  im- 
portance and  incidental  effects  of  the  controversy,8  and  the  value 
of  the  property  involved  in  litigation,9  are  competent  for  the 
same  purpose,  and  as  bearing  on  the  care  and  labor  involved. 
Evidence  of  how  often  the  plaintiff  appeared  as  attorney  or 
counsel  in  the  court  where  the  services  were  rendered,  is  compe- 
tent as  showing  skill  and  experience.10  Retainer  and  service  in  a 
cause  being  proved,  at  an  agreed  rate,  the  question  whether  there 
were  merits  is  irrelevant.11 

Upon  principles  already  stated,12  the  opinion  of  an  attorney  or 
counsellor  as  to  the  value  of  the  services 1S  (but  not  as  to  legal 
effect  or  right),14  is  competent;  but  that  of  a  non-professional 
witness  is  not.15 

Uselessness  of  the  service,  through  error  in  advice,  is  not  a 
defense,  unless  negligence  or  want  of  skill  be  shown  to  have  con- 
tributed thereto.16  The  burden  of  proof  of  negligence  is  on  the 
client.17  Failure  of  success  is  not  prima  facie  evidence  of  negli- 
gence or  want  of  proper  skill.18 


1  Harper  v.  Williamson,  1  McCord  (So.  Car.)  156 ;  and  see  Hughes  v.  Christy,  26 
Tex.  230,  232. 

4  Burghart  v.  Gardner  (above).  The  presumption  that  the  officer  who  allowed  the 
document  to  be  filed  would  not  do  so  if  it  were  not  genuine,  is  not  enough.  Id. 

3  N.  Y.  Code,  §  303 ;  Code  Civ.  Pro.  §  66. 

4  Garr  v.  Mairet,  1  Hilt.  498 ;  s.  p.  Moore  v.  Westervelt,  3  Sandf.  762. 
8  Id. 

*  Foster  v.  Newbrough,  66  Barb.  645.    , 

1  Stanton  v.  Embrey,  93  U.  S.  (3  Otto),  548.  An  appellate  court  will  not  take 
judicial  notice  of  value  by  looking  at  the  reported  briefs,  <fec.  Pearson  v.  Darring- 
ton,  32  Ala.  227,  262. 

8  Harland  v.  Lilienthal,  53  N.  Y.  438. 

9  Garfield  v.  Kirk,  65  Barb.  468. 

10  Harland  v.  Lilienthal  (above). 

11  Case  v.  Hotchkiss,  1  Abb.  Ct.  App.  Dec.  324,  6.  c.  3  Abb.  Pr.  N.  S.  381 ;  3  Keyes, 
334 ;  37  How.  Pr.  233. 

12  Pages  323  and  368  of  this  vol. 

13  Beekman  v.  Platner,  15  Barb.  550 ;  Hart  v.  Vidal,  6  Cal.  56. 

14  Clussman  v.  Merkel,  3  Bosw.  402.     Other  than  foreign  law. 

15  Smith  v.  Kobbe,  59  Bnrb.  289. 

16  Bowman  v.  Tallman,  3  Abb.  Ct.  App.  Dec.  182,  note.     The  right  to  compensa- 
tion for  services  in  one  matter  is  not  forfeited  by  his  misconduct  in  another ;    Currie 
v.  Cowles,  6  Bosw.  452 ;  nor  by  acting  adversely;    Porter  v.  Ruckman,  38  N.  Y.  210, 

11  Seymour  V.  Cagger,  13  Hun,  29. 
18  Id. 


BY  PERSON  EMPLOYED,— FOR   COMPENSATION.  379 

36.  Board  and  lodging.'] — An  implied  promise  by  a  father  to 
pay  for  board  and  lodging  of  a  child   may  be  inferred  from 
knowledge  and  omission  to  dissent.1     Declarations  of  the  child,  if 
part  of  the  res  gestw  of  removal,  may  be  competent  on  the  ques- 
tion of  loco parentis,  or  gratuitous  support.2     The  implied  prom- 
ise of  a  guardian  to  continue  to  pay  may  be  implied  from  pre- 
vious payments.3     Such  agreements  are  not  within  the  statute  of 
frauds,  unless  expressly  to  continue  beyond  a  year  from  the  time 
when  made.4    But  if  for  a  year  or  more  to  commence  at  a  future 
day  thev  are.5    An  agreement  for  board,  though  with  lodging,  in 
a  specihed  apartment,  is  not  a  tenancy  of  real  estate  within  the 
statute  requiring  writing.6 

One  who  has  had  long  experience  in  the  care  of  a  person,  non 
compos,  is  competent  to  express  an  opinion  as  to  the  value  of  his 
board  and  care.7 

37.  Brokers.']- — In  a  conflict  of  evidence  as  to  employment, 
evidence  of  acts  and  declarations  by  the  plaintiff,  made  in  the 
interest  of  the  other  party  to  the  bargain,  and  in  hostility  to  de- 
fendant within  the  period  covered  by  the  alleged  employment,  is 
competent.8     A  clause  stating  terms  of  employment,  inserted  in 
a  contract  with  a  third  person  to  which  plaintiff  was  not  a  party, 
does  not  exclude  oral  evidence.9     The  testimony  of  a  broker,  that 
in  a  hypothetical  case  stated,  brokers  would  be  entitled  to  com- 
mission, is  inadmissible.     This  is  a  question  of  law.10 

A  real  estate  broker,  acting  as  such  (and  not  as  middleman, 
with  the  knowledge  of  both  parties  that  he  acts  for  both),11  can- 
not recover  from  either,  if  employed  by  and  entitled  to  compen- 
sation from  the  other,12  unless  this  double  employment  Mras  dis- 
closed to 13  and  assented  to,  by  both,11  and  evidence  in  his  behalf  to 

1  Nichole  v.  Allen,  3  C.  &  P.  36.  To  recover  for  board  and  maintenance  of  de- 
fendant's illegitimate  child,  an  express  promise  must  be  shown,  or  it  must  be  shown 
that  he  admitted  himself  the  father  and  adopted  the  child,  in  which  case  plaintiff  may 
recover  on  the  implied  promise  for  maintenance  during  the  adoption,  but  not  for  that 
after  the  adoption  has  been  revoked.  NELSOX,  CH.  J.  Moncrief  v.  Ely,  19  Wend.  406, 
and  ca«es  cited. 

*  Edy  v.  McCoy,  20  Ala.  403 ;  and  see  p.  179  of  this  vol. 

3  Pegge  v.  Guardians  of  Lampeter  Union,  L.  R.  7  C.-  P.  366,  s.  c.  2  Moats  En^. 
668. 

4  Knowlman  v.  Bluett,  L.  R.  9  Ex.  1,  s.  c.  7  Moak's  Eng.  287. 

*  Wilson  v.  Martin,  1  Den.  602. 

*  Wilson  v.  Martin  (above);  Inman  v.  Stamp,  1  Stark.  12 ;  Edge  v.  Strafford,  1  C. 
<fc  J.  391.     Nor  is  an  agreement  for  lodgings  only.     White  v.  Maynard,  111  Mass.  250, 
6.  c.  15  Am.  R.  28.     Contra,  Wright  v.  Stavert,  2  E.  <fc  E.  721 ;  L.  J.  2'J  Q.  B.  161. 

1  K-ndall  v.  May,  10  Allen  (Mass.)  59,  67.  And  see  Reynolds  v.  Robinson,  64  N. 
Y.  589. 

8  Miller  v.  Irish,  63  N.  Y.  652.  affi'g  3  Hun,  352,  s.  c.  5  Supm.  Ct.  (T.  &.  C.)  707. 

*  Weber  v.  Kingsland,  8  Bosw.  415. 

10  Main  v.  Eagle,  1   E.  D.  Smith,  619;  Weber  v.  King^land,  8  Boaw.  415.     Coin- 
pare  Allan  v.  Sunditis,  1  H.  <fe  C.  123. 

11  Siegol  v.  Goul.l,  7  Lans.  177;  Rupp  v.  Sampson,  16  Gray,  393. 
15  Watker  v.  Osgood,  98  Ma*s.  348. 

13  Redfield  v.  Tegg,  38  N.  Y.  212;  and  see  Coleman  v.  Garrigues.  18  Barb.  60; 
Glentworth  v.  Luthen,  21  Id.  145 ;  Morrison  v.  New  York  &.  New  Ilaveu  R.  R.  Co. 
Sli  Id.  568. 

14  Rice  v.  Wood,  113  Mass.  133,  s.  c.  18  Am.  R.  459. 


380        ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

show  a  custom  among  brokers  to  charge  a  commission  to  both 
parties  in  such  cases  is  inadmissible.1 

It  is  competent  to  ask  the  purchaser,  as  a  witness,  if  he  would 
have  purchased  had  he  not  gone  to  the  plaintiff  and  obtained  in- 
formation from  him.3  If  the  employment  requires  the  broker  to 
conclude  a  contract,  he  cannot  prove  a  sale  by  a  written  instru- 
ment which  on  its  face  does  not  bind  the  purchaser,  aided  by 
parol  evidence  of  mistake  or  other  circumstances  which  would 
make  it  binding,  for  the  seller  (unless  his  acceptance  of  a  purchaser 
is  shown)  is  entitled  to  a  valid  contract  under  the  statute.8 

If  there  was  a  contract  for  compensation,  plaintiff  need  not 
prove  any  usage  of  brokerage  for  like  services ; 4  and  if  it  spe- 
cified the  conditions,  evidence  that,  by  the  usage  of  brokers, 
commissions  are  allowable,  although  the  conditions  are  not  com- 
plied with,  is  not  competent.5  If  plaintiff  was  not  a  broker  by 
vocation,  evidence  of  the  usual  commissions  of  a  broker  is  not 
competent.6  He  must  prove  that  he  was  a  broker,  to  make 
evidence  of  their  usual  charge  available  as  the  measure  of  recov- 
ery.7 General  value  of  time,  travel  and  expense  may  be  proved 
by  opinion.8  Opinion  is  not  competent  on  the  value  of  brokage 
services  for  procuring  a  loan,  for  that  is  fixed  by  statute ;  nor  the 
value  of  a  loan  of  credit,  for  credit  has  no  market  value.9  Evi- 
dence that  defendant  had  previously  paid  plaintiff  brokage  on 
similar  transactions  is  competent,  as  tending  to  show  usage  and 
knowledge  of  it.10 

38.  Officers  and  promoters  of  corporations^ — The  law  does 
not  imply  a  promise  on  the  part  of  corporations  to  pay  their 
directors,  as  such ;  and  it  must  appear  that  an  express  by-law  or 
a  resolution  of  the  board  u  was  adopted  to  compensate  them,  be- 
fore a  director  can  recover  for  services  as  director.12  If  the  com- 


1  Farnsworth  v.  Hemmer,  1  Allen,  494 ;  Raisin  v.  Clark,  41  Md.  168,  s.  c.  20  Am. 
R.  66;  and  see  Lynch  v.  Fallon,  11  R.  I.  311,  s.  c.  23  Am.  R.  458;  and  p.  298  of  thia 
vol. 

8  Mansell  v.  Clements,  L.  R.  9  Com.  PI.  139,  B.  c.  8  Moats  Eng.  R.  449. 

3  Stitt  v.  Huidekopers,   17  Wall.   397.     As  to  whether  consummated  purchase 
must  be  shown,  compare  Love  v.  Miller,  53  Ind.  294,  s.  c.  21  Am.  R.  192;    and  Rich- 
ards v.  Jackson,  31  Md.  250,  s.  c.  1  Am.  R.  49. 

4  Paulsen  v.  Dallett,  2  Daly,  40. 

*  Main  v.  Eagle,  1  E.  D.  Smith,  619. 

6  Lyon  v.  Valentine,  33  Barb.  271.     Compare  Erben  v.  Lorillard,  19  N.  Y.  299; 
2  Keyes,  567.   Contra,  Elting  v.  Sturtevant.  41  Conn.  176. 
'  Main  v.  Eagle  (above). 

8  Perrine  v.  Hotchkiss,  58  Barb.  77. 

9  Perrine  v.  Hotchkiss,  58  Barb.  77. 

10  Weber  v.  Kingsland,  8  Bosw.  415. 

11  Or  of  the  corporators. 

12  Rockford,  Rock  Island  &  St.  Louis  R.  R.  Co.  v.  Sage;  65  111.  328.  s.  r.  16  Am. 
R.  587,  and  cases  cited.     The  resolution  cannot  be  sustained  by  the  plaintiff's  vote 
or  presence  to  make  quorum.     Butts  v.  Wood,  37  N.  Y.  317,  affi'g  38  Barb.  181 ;  and 
see  Gridley  v.  Lafayette.  <fcc.  R.  R.  Co.  71   111.  200.     The  board  cannot  vote  them- 
selves extra  pay  for  extra  service.     See  Branch  Bank  v.  Collins,  7  Ala.  95 ;  Blatch- 
ford  v.  Ross,  5  Abb.  Pr.  N.  S.  434;  B.  r.  37  How.  Pr.  110;  54  Barb.  42. 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.  381 

pensation  is  fixed  by  statute,  a  director  cannot  be  allowed  extra 
compensation  for  extra  services  rendered  while  he  was  a  director.1 
Otherwise,  as  to  duties  not  imposed  upon  him  as  director  by  the 
charter  or  by-laws  of  the  company,  where  he  acted  not  as  director 
but  as  agent,  for  instance,  in  soliciting  subscriptions  and  procur- 
ing right  of  way.2  If  a  director  is  appointed  by  the  board  agent 
of  the  corporation  in  such  other  matters,  clearly  beyond  the  range 
of  his  duty,  there  is  an  implied  promise  on  the  part  of  the  cor- 
poration to  compensate  him  for  such  services  rendered;3  but  not 
for  services  in  effecting  the  organization,  unless  they  were  unques- 
tionably beyond  the  range  of  his  official  duties.4  Where  the 
charter  provides  that  the  president  shall  receive  no  pay  for  offi- 
cial services  unless  voted  him  by  the  board,  any  service  per- 
formed by  him  will  be  presumed  to  .have  been  rendered  as  presi- 
dent, unless  from  its  nature  it  appears  that  it  was  outside  the 
duties  of  his  office.5  The  rule  requiring  an  express  contract 
to  pay  directors,  made  before  service  rendered,  is  applicable  to  the 
offices  of  president,  treasurer,  and  the  like,  who  hold  as  trustees.6 
If  the  evidence  of  promise  is  oral,  the  admissions  of  the  officer 
that  he  was  not  to  have  compensation  are  competent  against  him.7 
To  enable  a  promoter  to  recover  against  the  subsequently  or- 
ganized corporation,  it  is  not  enough  that  the  corporation  has 
accepted  the  result  of  his  labors  and  enjoyed  its  benefits,  unless  it 
appear  that  the  projectors,  by  whom  the  services  were  employed, 


1  Branch  Bank  v.  Collins,  1  Ala.  N.  S.  95 ;  The  same  v.  Scott,  Id.  107.     But  he 
may  be  allowed  compensation  for  services  rendered  before  he  became  director.     Ib. 

2  Cheeney  v.  Lafayette,  Bloomington  A  Mississippi  R.  R.  Co.  68  111.  570,  s.  c.  18 
Am.  R.  585 ;  Shackleford  v.  Orleans  R.  R.  Co.  37  Miss.  202 ;  Hall  v.  Vt.  &  Mass.  R. 
R.  Co.  28  Vt.  401. 

3  Shackelford  v.  New  Orleans  R.  R.  Co.  37  Miss.  202.     Contra,  New  York  A 
New  Haven  R.  R.  Co.  v.  Ketchum,  27  Conn.  170,  181 ;  and  compare  Stacy  v.  State 
Bank  of  Illinois,  4  Scam.  91. 

4  New  York  &  New  Haven  R.  R.  Co.  v.  Ketchum,  27  Conn.  170.    But  compare  as 
to  services  in  organization,  Hall  v.  Vermont,  Ac.  R.  R.  Co.  28  Vt.  (2  Ams.)  401 ; 
Low  v.  Connecticut,  Ac.  R.  R.  Co.  45  N.  H.  370. 

*  Olney  v.  Chadsey,  7  R.  I.  224.  A  director  elected  to  serve  without  compensa- 
tion cannot  recover  against  the  company  for  services  rendered  in  that  capacity,  or 
for  such  as  were  incidental  to  his  office  as  director.  Loan  Association  v.  Stonemetz, 
29  Pa.  St.  534.  Even  a  resolution  passed  by  the  corporation  after  the  services  were 
rendered,  that  they  be  paid  for,  is  without  consideration  and  cannot  be  enforced  by  ac- 
tion. Ib.  And  to  similar  effect  is  Dunstan  v.  Imperial  Gas  Co.  3  Barn.  A  Ad.  125. 
See  also  on  the  general  subject  of  officers'  implied  contract  for  compensation,  (besides 
the  cases  cited  in  following  notes):  Jackson  v.  N.  Y.  Cent.  R.  Co.  2  Supreme  Ct.  (T. 
A  C.)  653;  Henry  v.  Rutland  A  Burlington  R.  Co.  27  Vt.  435;  Rockford,  Reck  Is- 
land, Ac.  R.  Co.  v.  Sage,  65  111.  328;  Baistow  v.  City  R.  Co.  42  Cal.  465;  Godbold 
V.  Bank  of  Mobile,  11  Ala.  191;  Belfast  <fc  County  Downs  R.  Co.  v.  Belfast,  Holy- 
wood,  Ac.  R.  Co.,  Ir.  R.  3  Eq.  581.  A  vote  of  the  directors  during  the  incumbency 
of  one  president,  fixing  the  salary  of  the  president,  does  not  amount  to  a  written 
agreement  to  pay  the  same  to  a  president  subsequently  elected,  and  any  presumption 
arising  from  it  may  be  rebutted  by  evidence  of  the  situation  or  cessation  of  business, 
etc.  Commonwealth  Ins.  Co.  v.  Crane,  6  Mete.  64. 

8  Holder  v.  Lafayette,  Ac.  R.  R.  Co.  71  111.  106,  s.  c.  22  Am.  R.  29 ;  Kilpatrick  r. 
Penrose  Ferry  Co.  49  Penn.  St.  118  ;  and  see  Cheeney  v.  Lafayette,  Ac.  R.  R.  Co.  68 
DL  570,  s.  o.  18  Am.  R.  684. 

T  Commonwealth  Ins.  Co.  v.  Crane,  6  Mete.  64. 


382  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

on  an  understanding  they  should  be  paid  for,  were  a  majority  of 
the  promoters,  or  that  the  charter  had  already  been  obtained,  so 
that  there  was  an  inchoate  corporation.1  If  no  corporation  was 
formed,  evidence  that  defendant  took  part  in  the  preliminary 
proceedings  is  competent  as  tending  to  show  his  authority  to  in- 
cur the  necessary  expenses.2 

39.  Parent  and  child.~\ — To  sustain  the  father's  action  for  the 
child's  services,  general  evidence  that  plaintiff  is  the  father,  is 
prlma  facie  enough.     He  is  not  to  be  required  to  prove  legiti- 
macy in  the  first  instance.3    If  a  parent  sends  the  child  to  en- 
gage himself,  he  may  recover  on  the  terms  the  child  made,  with- 
out proof  that  they  were  known  to  the  father.4 

To  entitle  the  child  to  sue,  evidence  that  the  child  con- 
tracted on  his  own  account,  with  the  knowledge  and  tacit  assent 
of  the  father ; 5  or  that  the  father  has  been  continuously  absent, 
without  providing  for  the  child,6  or  that  the  father  made  the  con- 
tract, stipulating  that  the  wages  should  be  paid  to  the  child,7  is 
enough.  So  is  evidence  of  express  emancipation.  Payment  to 
the  child  may  be  a  defense,  unless  the  parent  gave  notice.8 

40.  Physicians,  t&c.~\ — A  diploma  from  a  medical  college  is 
sufficiently  proved  by  a  witness  who  identifies  the  corporate  seal, 
and  testifies  to  the  genuineness  of  the  signatures  of  the  officers, 
though  his  knowledge  of  their  writing  was  not  acquired  by  see- 
ing them  write,  but  by  familiarity  with  diplomas  under  their  sig- 
natures, including  one  granted  to  himself.9    Recovery  for  a  bene- 
ficial operation  is  not  prevented  by  showing  that  it  was  not  per- 
formed with  the  highest  skill.10    Even  if  the  patient  is  deceased, 


1  Bell's  Gap  R.  R.  Co.  v.  Christy,  79  Penn.  St.  54,  s.  c.  21  Am.  R.  39.     But  com- 
pare Rockford,  Rock  Island,  <fec.  R.  R.  Co.  v.  Sage,  65  111.  328,  s.  c.  16  Am.  R.  587, 
and  cases  cited. 

2  Lake  v.  Duke  of  Argyll,  6  Q.  B.  479 ;  and  see  Ebbinghousen  v.  Worth,  4  Abb. 
New  Cos.  note. 

3  Haiglit  v.  Wright,  20  How.  Pr.  91.     Contra,  Armstrong  v.  McDonald,  10  Barb. 
300,  clearly  unsound. 

4  Herderhen  v.  Cook,  66  Barb.  21.     As  to  whether  the  declarations  of  the  son  in 
such  case  are  competent  in  evidence  to  prove  the  terms  of  the  contract,  compare 
Corbin  v.  Adams,  6  Cush.  93,  and  p.  177,  of  this  vol. 

8  Armstrong  v.  McDonald,  10  Barb.  300. 

6  Canovar  v.  Cooper,  3  Barb.  115. 

7  Snedeker  v.  Everingham,  27  N.  J.  L.  (3  Dutch.)  143,  148.     Compare  Brown  v. 
Town  of  Canton,  49  N.  Y.  632,  rev"g  4  Lans.  409 ;  Atwood  v.  Holcomb,  39  Conn. 
270,  a.  c.  12  Am.  Rep.  386.     As  to  service  under  void  indentures,  compare  Letts  v. 
Brooks,  Hill  A  D.  Supp.  36,  and  Lewis  v.  Trickey,  20  Barb.  387. 

8  Herrick  v.  Fritcher,  47  Barb.  589  -,  N.  Y.  L.  1850,  c.  266;  Clinton  v.  Rowland, 
24  Barb.  634. 

9  Finch  v.  Gridley,  25  "Wend.  469.    For  other  rules,  as  to  corporate  acts,  see  p. 
46,  <fec.,  of  this  vol.,  and  compare  Hunter  v.  Blount,  27  Geo.  76.     As  to  evidence  of 
employment,  see  Crane  v.  Baudoine,  55  N.  Y.  256,  rev'g  65  Barb.  260;  Cooper  v. 
N.  Y.  Central  <fe  Hudson  River  R.  R.  Co.  6  Hun,  276;  Mundorf  v.  Wickersham,  63 
Penn.  St.  87,  s.  c.  3  Am.  R.  531  ;  M'Bride's  Ex'x  v.  Watts,  1  M'Cord,  384. 

10  Alder  v.  Buckley,  1  Swan  (Tenn.)  69  ;  and  see  3  Abb.  New  Cas.  229.     General 
professional  character  not  in  issue.    Jeffries  v.  Harris,  3  Hawks  (No.  Cas.)  105.     As 


BY  PERSON  EMPLOYED,— FOR  COMPENSATION.      383 

the  burden  of  proof  is  on  his  executor  or  administrator,  to  show 
that  services  proved  to  have  been  rendered,  were  gratuitous,  if 
that  be  relied  on.1 

41.  Rewards.] — The  printed  advertisement  is  competent 
upon  adducing  evidence  tending  to  show  that  it  was  published 
by  authority  of  defendant,  or  his  agent.2  Oral  evidence  is  ad- 
missible to  show  that  an  ambiguous  offer  of  reward  relating  to  a 
class  of  crimes,  was  not  retrospective.3  Plaintiff  must  show  that 
performance,  on  his  part,  was  in  consideration  of  the  offer.4  He 
cannot  recover  if  he  acted  in  ignorance  of  it.5  But  notice  to  de- 
fendant that  he  was  acting  on  the  offer,  is  not  necessary.6  If  the 
reward  was  offered  for  two  results,  such  as  apprehension  and  con- 
viction,7 or  apprehension  and  recovery  of  stolen  property,8  both, 
must  be  shown.  On  a  reward  for  a  detection  or  conviction,  &c., 
the  record  of  a  conviction  of  an  offender  is  competent,9  but  not 
conclusive,10  evidence  of  his  guilt,  as  against  the  offerer.  If  con- 
viction was  prevented  by  dismissal  of  the  charge  procured  by  the 
offerer,  plaintiff  may  still  recover,  as  if  he  proved  conviction  ;  and 
if  the  dismissal  was  procured  by  the  attorney  of  the  offerer,  for 
the  purpose  of  using  the  testimony  of  the  accused,  it  may  be  in- 
ferred, in  the  absence  of  evidence,  that  the  attorney  acted  within 
his  authority.11 

Evidence  that  the  offer  was  publicly  withdrawn  before 
plaintiff  acted  on  it,  is  competent,  and  is  a  defense,  although 
plaintiff  acted  in  ignorance  of  the  withdrawal.12 


to  declining  to  answer  respecting  secret  processes,  compare  Naumon  v.  Zoerklaut,  21 
Wise.  466;  Richards  v.  Judd,  15  Abb.  Pr.  N.  S.  184. 

1  Scott's  Case,  1  Redf.  Surr.  R.  234,  237. 

9  Lee  v.  Flemingsburg,  7  Dana  (Ky.)  28;  see,  also,  p.  96,  of  this  vol. 

3  Salbadore  v.  Crescent  Mut.  Ins.  Co.  22  La.  Ann.  338. 

4  Lee  v.  Flemingsburgh  (above),  and  see  Marvin  v.  Treat,  31  Conn.  96,  s.  o.  9 
Am.  R.  307. 

6  Howland  v.  Lounds,  51  N.  Y.  604.     And  if  the  offer  is  for  apprehension  and 
conviction  of  the  offender,  one  who  procured  apprehension  before  he  knew  of  the  of- 
fer, cannot  recover  on  proof  of  a  subsequent  conviction,  even  though  after  he  became 
aware  of  the  offer  he  aided  the  conviction ;  for  both  apprehension  and  conviction 
must  be  aided,  in  consequence  of  such  a  reioard,  to  entitle  the  party  to  claim  it.     Fitch 
v.  Snedaker,  38  N.  Y.  248.     Compare  Gregg  v.  Pierce,  53  Barb.  387.     As  to  appor- 
tionment of  reward,  see  Janvrin  v.  Town  of  Exeter,  48  N.  H.  83,  s.  c.  2  Am.  R.  185; 
City  Bank  v.  Bangs,  2  Edw.  95;  Fargo  v.  Arthur,  43  How.  Pr.  193;  Prentisa  v. 
Farnham,  22  Barb.  619. 

*  Baker  v.  Hoag,  7  Barb.  113  ;  Hayden  v.  Songer,  Ind.  May,  1877. 

7  Fitch  v.  Snedaker  (above). 

8  Jones  v.  Phoenix  Bank,  8  N.  Y.  228. 

9  Borough  of  York  v.  Forscht,  ?3  Penn.  St.  391. 

10  Mead  v.  City  of  Boston,  3  Cnsh.  404.     It  has  been  held  that  on  an  offer  for  detec- 
tion of  a  thief,  evidence  that  defendant,  on  plaintiff's  information,  caused  a  person  to 
be  arrested  on  the  charge,  may  be  prima  facie  sufficient.     Brennsn  v.  Haff,  1  Hilt. 
511. 

11  Louisville  &  Nashville  R.  R.  Co.  v.  Goodnight,  10  Bush,  562,  s.  o.  19  Am.  R.  80. 
18  Shuey  v.  United  States,  92  U.  S.  (2  Otto),  73. 


384  ACTIONS  ON  CONTRACTS  FOR  SERVICES. 

III.  ACTIONS  FOR  WRONGFUL  DISMISSAL,  or  KEFUSAL  TO  RECEIVE. 

42.  Dismissal  or  refusal.'] — On  the  question  whether  an  em- 
ploye was  discharged,  the  declarations  of  a  party,  made  in  con- 
tinuation of  the  transaction,  may  be  competent  as  part  of  the  res 
gestce  /  *  but  evidence  of  subsequent  instructions  never  communi- 
cated to  the  employe,  is  not.8    Under  a  contract  for  future  em- 
ployment, evidence  that  on  the  arrival  of  the  time  for  commen- 
cing service  the  employe  was  ready  and  willing  (and  offered,  if 
necessary),  to  perform,   and  that  the   employer  absolutely  re- 
pudiated the  contract,  is  sufficient  without  proof  that  the  plaint- 
iff thereafter  tendered  service,  or  kept  himself  in  readiness  to  per- 
form;8 and  the  damages  are  primafacie  the  wages  for  the  entire 
term.4     In  showing  the  probable  compensation  for  a  voyage, 
where  the  amount  was  contingent,  testimony  of  experts  to  the 
average  results  of  similar  voyages,  is  competent;   and  the  ac- 
counts of  such  voyages  need  not  be  produced.5 

43.  Defenses^ — Misconduct  known  at  the  time  of  discharge 
may  be  proven,  though  committed  some  time  before  the  dis- 
charge, and  though  no  cause  was  assigned  for  the  discharge.8 
Evidence  of  total  incapacity  for  service  (if  pleaded),  is  competent 
in  defense  of  an  action  for  discharging  plaintiff  without  the 
length  of  notice  to  terminate  the  contract  provided  for  by  its 
terms.7 


1  Thus,  where  the  owner  went  on  board  the  ship  and  took  away  the  ship's  papers, 
evidence  that,  on  immediately  depositing  them  with  a  third  person,  he  indicated  dis- 
missal to  be  the  reason,  brings  the  words  within  the  rule  of  the  res  gestce.     Russell  v. 
Frisbie,  19  Conn.  205. 

2  Carrig  v.  Oaks,  110  Mass.  146. 

3  Howard  v.  Daly,  61  N.  Y.  362 ;  and  see  Dngan  v.  Anderson,  36  Md.  667,  8.  c. 
11  Am.  R.  609.     Compare  Colbnrn  v.  Woodworth,  31  Barb.  381.     It  is  the  better 
opinion  that  a  repudiation  of  the  contract  before  the  time  for  commencing  will  be  a 
breach,  if  the  employer  also  put  it  out  of  his  power  to  perform  ;  or  if  the  avowal  was 
intended  to  and  did  influence  the  conduct  of  the  employe  to  his  damage ;  see,  also, 
Gray  v.  Green,  9  Hun,  334. 

*  Howard  v.  Daly  (above).     Whether  plaintiff  must  prove  that  he  sought  employ- 
ment elsewhere,  compare  Id.  and  Polk  v.  Daly,  14  Abb.  Pr.  N.  S.  156 ;  Moody  v. 
Leverich,  Id.  145;  Farrellv.  French,  Blatchf  &  H.  275;  Id.  366. 

8  Eldredge  v.  Smith,  13  Allen,  140. 

•  Harrington  v.  First  Nat.  Bank  of  Chittenango,  1  Supm.  Ct.  (T.  &  C.)  361.   Com- 
pare  Spotswood  v.  Barren,  6  Exch.  110.     If  the  contract  reserved  absolute  right  to 
dismiss,  assigning  a  false  reason  is  not  material.     Smith  v.  Douglass,  4  Daly,  191. 

T  Lyon  v.  Pollard,  20  Wall.  403.  Inability  resulting  from  sickness,  while  it  may 
not  render  the  employe  liable,  may  prevent  him  from  sustaining  an  action  for  dismis- 
sal. Poussard  v.  Spiers,  1  Queen's  Bench  Div.  410,  8.  c.  17  Moak's  Eng.  93. 


CHAPTER  XX. 

ACTIONS  ON  VARIOUS  EXPRESS  PROMISES  TO  PAY  MONET. 

1.  General  principles.  4.  Promise  to  third  person  to  pay 

2.  Promise  to  pay  purchase-money.  plaintiff. 

3.  —  incumbrance.  5.  Promise  to  plaintiff  to  pay  third 

person. 

1.  General  principles.'] — The  rules  applicable  to  oral  con- 
tracts generally  are  illustrated  in  chapters  XIII  to  XX ;  those 
applicable  to  unsealed  writings  in  chapters  XVI  to  XXVI ;  and 
those  applicable  to  sealed  and  witnessed  instruments  in  chapter 
XXVII. 

2.  Promise  to  pay  purchase-money. ~\ — The  original  contract, 
and  delivery  and  acceptance  of  deed  having  been  proved,  evi- 
dence of  express  promise  to  pay  balance  is  not  necessary.1    Con- 
versely if  an  express  and  unconditional  obligation  to  pay  is 
proved, — as,   for  instance,   notes  given   for  purchase-money, — 
plaintiff  need  not  prove  the  conveyance.2    Parol  evidence  is  ad- 
missible to  show  the  amount  agreed  to  be  paid,3  and  the  time,4  and 
its  non-payment,5  notwithstanding  an  acknowledgment  in  the 
deed  of  the  payment  of  a  different  or  less 6  consideration  in  full. 

A  covenant  purporting  to  bind  the  grantee  will  sustain  an 
action  against  him,  although  he  did  not  sign,  if  there  be  evidence 
of  his  acceptance  of  the  deed.7 

Declarations  of  the  grantor  that  a  specified  sum  was  due,  are 
competent  against  him  to  show  that  no  more  was  due;8  but  are 
not  competent  in  his  own  favor,  even  though  made  at  execution, 
unless  brought  home  to  the  grantee  or  plaintiff.9 

3.  —  incumbrance.'] — Plaintiff  may  show  that,  as  a  condition 
of  delivery  or  acceptance  of  a  deed  without  covenants,  defendant 
orally  promised  to  pay  an  incumbrance.10     Otherwise  if  the- 
promise  was  only  for  the  consideration  mentioned  in  the  deed 
and  the  deed  contains  special  covenants,  and  the  incumbrance 
was  not  created  by  the  party.11 


1  Vernol  v.  Vernol,  63  N.  Y.  45.    Compare  Huffman  v.  Ackley,  84  Mo.  277. 
8  Lyman  v.  United  States  Bank,  12  How.  (U.  S.)  225. 

3  Bowen  v.  Bell.  20  Johns.  338 ;  McCrea  v.  Purmort,  16  Wend.  460,  anTg  5  Paige, 
620,  and  see  16  N.  Y.  538. 

4  Shepard  v.  Little,  14  Johns.  210. 
6  Same  cases. 

6  Murray  v.  Smith,  1  Duer,  412;  Strawbridge  v.  Cartledge,  Y  Watts  &  S.  894. 

7  Atlantic  Dock  Co.  v.  Leuvitt,  54  N.  Y.  35. 

8  Reed  v.  Reed,  12  Penn.  St.  117. 

9  Trimmer  v.  Trimmer,  18  Hun,  182. 

10  Remington  v.  Palmer,  62  N.  Y.  31,  rev'g  1  Hun,  619,  s,  c.  4  Supm.  Ct.  (T.  <fe 
C.)  696.     And  see  12  Moak's  Eng.  243,  n. 

»'•  Howe  v.  Walker,  4  Gray,  318 ;  1  Greenl.  Ev.  13  ed.  827,  n. ;  2  Whart  Ev.  §  1014. 
25  [335] 


386  ACTIONS  ON  EXPRESS  PROMISES  TO  PAT. 

4.  Promise  to  third  person  to  pay  plaintiff ;] — A  promise  on 
a  valid  consideration,  to  pay  a  third  person,1  will  sustain  an  action 
by  the  latter  in  his  own  name,  though  he  was  not  privy  to  the 
consideration.2   The  promise  may  be  implied  from  the  acceptance 
of  a  conveyance  expressed  to  be  subject  to  the  payment  of  a 
specified  incumbrance,8  or  a  specified  sum.4    If  in  writing,  the 
instrument  must  be  produced,  or  accounted  for.5  If  the  language 
of  the  promise  is  indefinite  or  ambiguous, — as,  for  instance,  to 
pay  "  your  account  with  A.," — it  may  be  explained  by  parol  evi- 
dence, to  show  whether  a  past  or  future  account  was  intended.6 

Proof  of  the  statement  of  the  third  person,  at  the  time  of 
incurring  the  debt,  is  sufficient  evidence  of  his  indebtedness  to  the 
plaintiff.7  A  judgment  upon  the  merits  recovered  against  the 
third  person,  even  after  the  promise,  in  an  action  fully  litigated 
and  deliberately  and  intelligently  decided  by  a  competent  court, 
is prima  facie,  and  usually  conclusive,  evidence,  against  the  prom- 
issor,  of  the  amount  of  the  debt,  unless  fraud  or  collusion  is 
shown.8  If  the  precise  obligation  incurred  is  identified  by  the 
promise, — as  in  case  of  a  covenant  to  pay  a  designated  mortgage, 
— the  defendant  cannot  question  the  existence  ancl  validity  of  the 
obligation,  but  may  show  that  it  has  been  paid.9  It  is  not  neces- 
sary to  prove  the  concurrence  or  assent  of  other  beneficiaries,10 
unless  the  contract  requires  it.  But  revocation  by  the  promisee, 
before  assent  by  the  plaintiff,  will  bar  the  action.11  Oral  evidence 
that  the  promisor  was  agent  for  the  creditor  is  not  competent  as 
between  them,  to  exonerate  the  promisor  from  liability,  unless  the 
face  of  the  instrument  bears  some  indication  of  the  agency.12 

5.  Promise  to  plaintiff  to  pay  third  personj] — Upon  a  prom- 
ise to  plaintiff  to  pay  a  third  person,  plaintiff  need  not  show  that 
he  has  paid  the  debt.13 

1  As  distinguished  from  a  bond  conditioned  for  such  payment.  Turk  v.  Ridge, 
41  N.  Y.  201. 

*  Lawrence  v.  Fox,  20  N.  Y.  268 ;  Hutchings  v.  Miner,  46  Td.  456  ;  Hall  v.  Rob 
bins,  61  Barb.  33,  s.  c.  4  Lans.  463 ;  Barlow  v.  Myers,  64  N.  Y.  41,  rev'g  8  Hun,  270; 
Hendrick  v.  Lindsay,  93  U.  S.  (3  Otto),  143  ;  and  cas?s  collected  in  2  Abb.  N.  Y.  Dig. 
New  ed.  170,  174  ;  5  Id.  289.  Contra,  except  in  cases  of  trust,  agency,  <fcc.,  Exch. 
Bk.  of  St.  Louis  v.  Rice,  107  Mass.  37,  s.  o.  9  Am.  R.  1. 

8  Collins  v.  Rowe,  1  Abb.  New  Cas.  97,  and  cases  cited.  For  the  theories  sus- 
taining this  implication,  see  note  in  Binsse  v.  Paige,  1  Abb.  Ct.  App.  Dec.  138. 

4  Dingeldein  v.  Third  Ave.  R.  R.  Co.  37  N.  Y.  575,  reVg  9  Bosw.  79. 

6  Hatch  v.  Pryor,  2  Abb.  Ct.  App.  Dec.  343. 

6  Wallrath  v.  Thompson,  4  Hill,  200. 

T  Lawrence  v.  Fox,  20  N.  Y.  268.  And  see  Draper  v.  Austin,  46  Vt.  215;  and 
page  260  of  this  vol. 

8  See  Luddington's  Petition,  B  Abb.  New  Cas.  307,  and  cases  cited. 

9  Hartley  v.  Tatham,  2  Abb.  Ct.  App.  Dec.  339 ;  and  see  Ritter  v.  Phillips,  53  N. 
Y.  586,  affi'g  34  Super.  Ct.  (J.  <fe  S.)  289;  35  Id.  388. 

10  Seaman  v.  Hasbrouck,  35  Barb.  151. 

11  Kelly  v.  Roberts,  40  N.  Y.  432 ;  16  Alb.  L.  J.  378;  and  see  Devlin  v.  Murphy, 
6  Abb.  New  Cas.  242. 

14  Auburn  City  Bank  v.  Leonard,  40  Barb.  119. 

18  Stout  v.  Folger,  34  Iowa,  71,  s.  c.  11  Am.  R.  138  ;  Furnas  v.  Durgin,  119  Mass. 
600,  s.  c.  20  Am.  R.  841 ;  15  Alb.  L.  J.  424.  Otherwise  if  the  promise  was  only  to 
indemnify. 


CHAPTER  XXL 

ACTIONS    ON  NEGOTIABLE   PAPER. 

I.    RULES  APPLICABLE  TO  NEGOTIABLE  PAPEB  I.    RULES    APPLICABLE  TO,  GENERALLT COW. 

GENERALLY.  Unued. 

1.  General  order  of  proof.  44.  Particular  fund  ;    agreement  to 

2.  Production.  set-off;  to  renew. 

8.  Lost  or  destroyed  paper.  45.  Subsequent  modification. 

4.  Proof  of  execution.  46.  Indorsement. 

6.  Admissions.  47.  Oral  evidence  to  vary  an  indorse- 

6.  Testimony     of     the     supposed  ment. 

writer.  48.  Indorsement  as  a  transfer  of  title. 

7.  Direct  testimony  to  signature.  49.  Demand. 

8.  Witness   who  knows  the  hand-  60.  Non-payment. 

writing  generally.  61.  Indorsements  of  payment,  <fcc. 

9.  Means  of  knowledge.  62.  Competency  of  a  party  to  the  in- 

10.  Opinion  or  belief.  strument  to  impeach  it.     The 

11.  Refreshing  memory.  New  York  rule. 

12.  Testing  the  witness.  63.  —  the  United  States  Court  rule. 

13.  Comparison  of  handa.  64.  Admissions  and  declarations. 

14.  Opinions  of  witnesses.  65.  Foreign  law. 

15.  Matters  of  description. 

16.  Qualifications  of  witness.  II.  ACTION  BY  PAYEE  (OR  ORIGINAL  "BEAR- 

17.  Photographs.               .  ER  ")  AGAINST  MAKER. 

18.  Mark.  56.  Plaintiff's  case. 

19.  Identity  of  names. 

20.  Fictitious  person.  III.  ACTION  AGAINST  ACCEPTOR. 

21.  Joint  makers,  <fcc.  67.  Acceptance. 

22.  Married  woman.  58.  Other  facts. 

23.  Agent's  signature.  69.  Promise  to  accept. 

24.  Partnership  signature.  60.  Several  parts,  or  duplicates. 

25.  Corporation  paper. 

26.  Oral  evidence  to  show  real  patty.  IV.  ACTION    AGAINST   DRAWER  ;   ON  NOM- 

27.  Evidences  of  title.  ACCEPTANCE. 

28.  Delivery.  61.  Refusal  to  accept. 

29.  Consideration.  62.  Excuse  for  non-presentment. 

80.  Accommodation  paper. 

81.  Alterations.  V.  ACTION    AGAINST    DRAWER,  .Ac.  ;    OK 

82.  —  how  pleaded.  NON-PAYMENT. 

83.  —  mode  of  proof.  63.  Acceptance  and  presentment. 

84.  Blanks. 

35.  Marks  of  cancellation.  VI.  ACTION  AGAINST  INDORSERS,  <tc. 

86.  General  rule  as  to  oral  evidence  64.  Execution  of  the  instrument. 

to  vary.  65.  Pleading  facts  to  charge  indoreer- 

37.  Date.  66.  Cogency  of  the  evidence. 

88.  Time  of  payment.  67.  Time  of  demand. 

89.  Amount.     '  68.  Place. 

40.  Medium.  69.  Authority. 

41.  Interest.  70.  Identity  of  maker  or  drawee,  and 

42.  Place  of  payment.  authority  of  agent  or  servant. 

43.  Defeasance.  71.  Production  of  the  instrument. 

[387] 


388 


ACTIONS  ON  NEGOTIABLE  PAPER. 


VI.  AcrroN  AGAINST  iNDORSERs — continued. 
72.  Due  diligence  in  demand. 
78.  Official  protest  as  evidence. 

74.  Sealed  certificate. 

75.  Unsealed  certificate. 

76.  Copy. 

77.  Secondary  evidence. 

78.  Memoranda  to  refresh  memory. 

79.  Memoranda  of  deceased  person. 

80.  Legal  notice  to  charge  indorser. 

81.  Identity  of  person  served. 

82.  Executors  and  administrators. 

83.  Time  of  service. 

84.  Actual  notice. 

85.  Due  diligence  by  the  holder. 

86.  Place  of  directing  notice. 

87.  Due  diligence  in  inquiry. 

88.  Evidence  of  the  contents  of  the 

notice. 

89.  Extrinsic  evidence  as  to  imper- 

fect notice. 

90.  Mailing. 

91.  Inference  of  delivery  or  mailing 

from  ordinary  course  of  busi- 
ness. 

92.  Admissions  of  demand  made  and 

notice  received. 

93.  Indirect  evidence  of  notice. 

94.  Waiver  of  demand  or  notice. 

95.  Want  of  funds  as  an  excuse. 

VIL  IRREGULAR  INDORSEMENT  (BY  THIRD 

PERSON  BEFORE  PAYEE). 

96.  Payee  against  irregular  indorser. 

New  York  doctrine. 

97.  Defenses. 

98.  Subsequent  transferee  against  ir- 

regular indorsee. 

99.  The   United  States   Court  doc- 

trine. 

100.  Oral  evidence  to  vary  the  ascer- 
tained contract. 

VIII.  DEFENSES  GENERALLY. 
/  101.  Defenses    available    against    all 
holders,  whether  bona  fide  or 
otherwise. 

102.  Failure  or  want  of  consideration. 

103.  Accommodation  paper. 

104.  Fraud. 

105.  Duress. 

106.  Impeaching  plaintiff's  title. 

107.  Collateral  security. 

108.  Transfer  after  maturity. 


VIII.  DEFENSES  GENERALLY — continued. 

109.  Suretyship,   and    dealing    with 

principal. 

110.  Payment. 

111.  Qualifying  agreement. 

IX.  DEFENDANT'S    EVIDENCE  TO    REQUIRE 

PLAINTIFF  TO  PROVE  TITLE  AS  A 
BONA  FIDE  HOLDER  FOR  VALUE  BE- 
FORE MATURITY. 

112.  The  general  rule. 

113.  Failure  or  want  of  consideration. 

X.  PLAINTIFF'S    EVIDENCE    OF    TITLB    AS 

HOLDER  FOR  VALUE  BEFORE  MA- 
TURITY. 

114.  Burden  of  proof. 

115.  Evidence  that  transfer  was  be- 

fore maturity. 

116.  —  and  before  notice. 

117.  —  and  for  value. 

118.  Evidence  of  good  faith. 

119.  "  Taking  up." 

XI.  DEFENDANT'S  EVIDENCE  THAT  PLAINTWF 

18  NOT  A  HOLDER  IN  GOOD  FAITH. 

120.  Bad  faith. 

121.  Notice. 

122.  Negligence. 

XII.  ACTION    ON    MUNICIPAL    AND  OTHER 

COUPON   BONDS. 

123.  Title. 

124.  Evidence     of     regularity    and 

power. 

125.  Notice  of  defect,  <fcc. 

XIII.  BANK  CHECKS. 

126.  Stamp. 

127.  Title. 

128.  Oral  evidence  to  vary. 

129.  Laches. 

130.  Action  against  drawer. 

131.  Action  against  the  bank. 

XIV.  ACTION  ON  STOCK  AND  PREMIUM  NOTES 

GIVEN  TO  INSURANCE  COMPANIES. 

.  132.  Stock  notes. 

133.  Premium  notes. 

134.  Losses  and  assessments. 

135.  Defenses. 


RULES  APPLICABLE  GENERALLY.  389 


I.  RULES  APPLICABLE  TO  NEGOTIABLE  PAPEB  GENERALLY. 

1.  General  order  of  proof.'] — In  all  classes  of  cases  the  usual 
order  of  proof *  is,  for  plaintiff ; 

1.  To  produce  the  paper  sued  on  ; 

2.  If  execution  be  not  admitted,  to  prove  the  signatures,  and 
the  necessary  indorsements,  if  any ; 

3.  To  give  such  extrinsic  evidence,  if  any,  as  may  be  neces- 
sary to  explain  the  paper.     If  the  action  is  against  an  indorser, 
or  against  a  drawer  of  a  bill,  plaintiff  will  go  on  ; 

4.  To  prove  presentment,  and  demand  and  dishonor  (and,  if 
necessary,  protest),  or  circumstances  to  excuse  these  ;  and 

5.  Notice  of  dishonor,  &c.,  to  the  indorser,  or  circumstances 
to  excuse  it. 

The  possession  and  proof  of  execution,  &c.,  raise  a  legal  pre- 
sumption of  consideration,  and  of  title  in  plaintiff  by  a  transfer 
before  maturity  in  good  faith  and  for  value.2  If  plaintiff  was  not 
an  original  party  to  the  paper,  evidence  of  certain  infirmities  ^be- 
low stated),  will  throw  on  him  the  burden  of.  affirmative  proof  of 
title  before  maturity  and  for  value  ;  and  this  having  been  given, 
defendant  may  then  prove  that,  nevertheless,  plaintiff  had  notice 
of  the  infirmity.  Though  defendant  be  not  able  to  prove  such  in- 
firmity in  the  inception  of  the  paper  as  will  cast  this  burden  on 
plaintiff,  he  may  show  that  plaintiff  was  not  a  Ijonafide  holder  for 
•value,  before  maturity ;  an&prima facie  evidence  to  negative  either 
of  these  elements  in  plaintiff's  title  will  let  in  evidence  of  any 
equity  in  favor  of  defendant  that  would  be  available  against  the 
original  payee,  if  properly  pleaded.  As  the  mode  of  proof  of 
some  of  the  facts  thus  involved  is  common  to  actions  of  a  great 
variety  of  classes,  the  most  useful  method  will  be  to  state  first 
those  rules  applicable  in  actions  of  several  classes,  and  afterward 
those  peculiar  to  actions  by  Payee  against  Maker,  Indorsee  against 
Indorser,  and  the  like. 

2.  Production.'] — If  the  making  or  contents  of  the  paper  are 
in  issue,  the  paper  must  be  produced,3  or  its  absence  accounted 
for.4  It  is  not  an  excuse  to  show  that  the  paper  is  without  the 
jurisdiction,  'and  in  the  possession  of  an  adverse  claimant  by  de- 
fective title.5  Defendant  does  not  waive  non-production  of  a  ne- 
gotiable note  by  going  into  evidence  on  the  merits.6  Production 
at  the  trial  is  enough,  although  the  paper  had  been  previously 


1  See  paragraphs  112  and  1 1 3,  below,  and  Michigan  Bank  v.  Eldred,  9  "Wall.  548  ; 
and  paragraphs  114—118,  below. 

8  See  paragraphs  27,  46,  97,103,  112,  1 23  and  127,  below,  and  Chambers  Conntyr. 
Clews,  21  Wall.  317. 

3  Potter  v.  Earnst,  51  Ind.  384. 

4  By  the  English  rule,  even  when  not  in  issue,  interest  is  not  recoverable  without 
production.     Hutton  v.  Ward,  15  Q.  B.  26  ;  L.  J.  19  Q.  B.  293  ;  Rose.  N.  P.  350. 

6  Van  Alstyne  v.  Commercial  Bank,  4  Abb.  Ct.  App.  Dec.  452. 
'  Kirby  v.  feisson,  2  Wend.  550. 


390  ACTIONS  ON  NEGOTIABLE  PAPER. 

lost,  if  no  objection  was  made  to,  and  no  prejudice  suffered  by, 
demand  and  notice  while  lost.1 

If  the  paper  was  intentionally  destroyed  by  plaintiff  himself, 
he  must  give  a  satisfactory  explanation  preliminary  to  secondary 
evidence.  If  plaintiff's  pleading  and  evidence  trace  the  note  into 
defendant's  possession,  the  action  itself  is  sufficient  notice  to  pro- 
duce it,  to  allow  secondary  evidence  of  its  contents,8  and  of  its 
indorsements  of  whatever  kind,4  if  he  does  not  produce  it. 

A  statute  excusing  proof  of  execution  unless  there  is  a  sworn 
denial  of  signature,  does  not  dispense  with  production  of  the  note.5 
A  rule  of  court  excusing  plaintiff  from  proving  execution,  if  de- 
fendant omits  to  file  an  affidavit  denying  it,  means  only  actual 
making  and  delivery  of  the  paper,  not  its  validity,  and  only  en- 
ables plaintiff  to  make  out  a  prima  facie  case,  not  a  conclusive  • 
one.6  If  execution  is  admitted,  the  existence  of  the  instrument 
is  proved  by  its  production  and  evidence  of  identity. 

3.  Lost  or  destroyed  paper '.] — The  loss  or  destruction  need  not 
be  alleged  in.  the  complaint.7  The  question  whether  the  evidence 
of  loss  or  destruction  is  sufficient  to  admit  secondary  evidence  is 
for  the  court,  not  the  jury.8  Positive  and  unequivocal  evidence 
is  not  essential.9  Parol  evidence  of  the  contents  of  a  lost  note  or 
bill  is  admissible ; 10  but  the  court  are  to  require  indemnity,  if  it 
was  negotiable.11  To  entitle  to  indemnity,  there  must  be  some 
evidence  that  the  paper  was  negotiable ; M  but  there  need  not  now 
be  evidence  that  it  was  indorsed  or  payable  to  bearer.  The  stat- 
ute 13  requires  indemnity,  though  unindorsed.14  It  is  not  necessary 
to  prove  tender  of  indemnity  before  trial,15  except  for  the  purpose 
of  recovering  interest  where  the  party  was  not  in  default  with- 


1  Smith  v.  Rockwell,  2  Hill,  482. 

s  Blade  v.  Noland,  12  Wend.  173;  and  see  Steele  v.  Lord,  70  N.  Y.  283.     Com- 
pare Vanauken  v.  Hornbeck,  2  Green  (N.  J.)   178. 

3  Hammond  v.  Hopping,  13  Wend.  605. 

4  Howell  v.  Huyck,  2  Abb.  Ct.  App.  Dec.  425.     It  may  be  proved  by  a  witness 
testifying  that  he  has  seen  the  note  in  defendant's  possession,  and  that  he  knows  the 
signature  to  be  genuine.     Prescott  v.  Ward,  10  Allen,  203. 

s  Sebree  v.  Dorr,  9  Wheat.  681. 

6  Freeman  v.  Ellison,  37  Mich.  459,  s.  c.  18  Alb.  L.  J.  210. 

7  Rcnner  v.  Bank  of  Columbia,  9  Wheat.  581. 

8  Page  v.  Page,  15  Pick.  374.     Whether  the  loss  was  by  destruction,  so  that  in- 
demnity is  dispensed  with,  may  be  a  question  for  the  jury.     Swift  v.  Stevens,  8 
Conn.  436. 

9  Swift  v.  Stevens  (above) ;  see,  also,  3  Abb.  N.  Y.  Dig.  new  ed.  64-67. 

10  2  N.  Y.  R.  S.  406,  §  75.     Even  though  lost  since  the  commencement  of  the  suit. 
Jacks  v.  Darrin,  1  Abb.  Pr.  148,  s.  c.  8  E.  D.  Smith,  548.     For  the  conflicting  rules, 
where  no  such  statute  exists,  see  2  Pars,  on  Pr.  N.  <fec.  290,  <fec.    Being  beyond  the 
jurisdiction,  and  adversely  held,  is  not  a  loss.     Van  Alstyne  v.  Commercial  Bank,  4 
Abb.  Ct.  App.  Dec.  449. 

11  Same  statute. 

18  Blade  v.  Noland,  12  Wend.  173,  and  see  Wright  v.  Wright,  54  N.  Y.  441. 

13  2  N.  Y.  R.  S.  406,  §§  75,  76. 

14  Frank  v.  Wessels,  64  N.  Y.  158.     Compare  2  Pars,  on  Pr.  N.  <tc.  290. 

15  Frank  v.  Wessels,  64  N.  Y.  158,  159. 


RULES  APPLICABLE  GENERALLY.  391 

ont  it,  and,  in  some  cases,  costs.1    Proof  of  actual  destruction, 
whether  accidental2  or  explained,  dispenses  with  indemnity. 

Proving  loss  or  destruction  does  not  dispense  with  proof  of 
the  execution  and  identity  of  the  original.  A  sworn  copy,  given 
in  evidence,  excludes  parol  evidence  to  vary  the  contract,  as  would 
the  original.3  But  it  is  not  necessary  to  prove  the  original  consid- 
eration, nor  non-payment,  merely  because  of  loss  or  destruction. 

4.  Proof  of  execution^ — The  signature  of  the  party  to  be 
charged,  if  execution  is  not  admitted,  must  be  proved,  before  the 
note  can  be  put  in  evidence.5  The  signer,  though  competent  and 
available  as  a  witness,  need  not  be  called.6  Proof  of  signature 
is  prima  facie  sufficient,  without  other  proof  of  genuineness.7 

But  if  there  was  a  subscribing  witness,  he  must  be  called,8  or 
his  absence  accounted  for  by  showing  that  he  is  not  living,9  or  not 
competent  to  testify,  or  not  within  the  jurisdiction  of  the  court, 
or  not  to  be  found  with  due  diligence  ;  and  where  his  absence  is 
thus  excused,  his  handwriting  must  be  proved.  If  there  are  sev- 
eral subscribing  witnesses,  it  is  sufficient  to  produce  either  who 
can  prove  the  note  ;  but  the  absence  of  all  must  be  accounted  for 
before  the  note  can  be  proved  by  the  handwriting  of  either.10  The 
fact  that  the  execution  was  abroad  raises  a  presumption  that  the 
subscribing  witness  is  beyond  jurisdiction.11  Plaintiff  may  prove 
that  a  name  written  at  the  left  hand,  in  the  place  usual  for  the 
signature  of  a  subscribing  witness  (though  without  a  prefix  indi- 
cating that  it  was  a  witness's  signature),  was,  in  fact,  the  signature 
of  a  maker.12  If  the  subscribing  witness  leaves  the  question  of 
execution  in  doubt,13  other  evidence  of  execution  becomes  admis- 
sible. A  note  bearing  a  seal  is  admissible  under  a  complaint  not 


1  2  Pars,  on  Pr.  N.  «fec.  302. 

8  Des  Arts  v.  Leggett,  16  N.  Y.  586,  688. 

I  Reed  v.  United  States  Express  Co.  48  N".  Y.  462. 

4  Or,  if  execution  is  denied  on  oath,  where  that  is  required  by  tha  statute. 
Holmes  v.  Riley,  14  Kans.  131. 

8  Id. 

«  Smith  v.  Prescott,  17  Me.  277. 

1  St.  John  y.  Am.  Mut.  Life  Ins.  Co.  2  Duer,  412 ;  and  see  Irvine  v.  Lumberman's 
Bank,  2  Watts  &  S.  190.  The  fact  that  the  handwriting  in  the  body  of  a  check  was 
not  that  of  the  drawer,  raises  no  presumption  that  the  check  was  not  genuine,  es- 
pecially where  there  is  evidence  that  the  usage  of  the  drawer  was  to  have  his  checks 
filled  up  by  a  clerk  or  book-keeper.  Redington  v.  Woods,  45  CaL  406,  s.  o.  13  Am.  R. 
190. 

8  3  Abb.  N.  Y.  Dig.  new  ed.  133;  2  Pars,  on  Prom.  N.  &  B.  474.     The  fact  that 
the  maker  is  non-competent  does  not  dispense  with  the  necessity. 

9  Or,  unless  plaintiff  can  prove  an  admission.     See  paragraph  5. 

10  3  Abb.  N.  Y.  Dig.  new  ed.  134,  135. 

II  Savage  v.  D'Wolf,  1  Blatchf.  343. 

1S  Rape  v.  Westcott,  18  N.  J.  L.  (3  Harr.)  245.  So  he  might  show  that  a  signa- 
ture appearing  to  be  that  of  a  witness  was  a  fictitious  one,  or  a  subsequent  memoran- 
dum for  purposes  of  identification,  or  an  unauthorized  addition.  Id.  Per  HORN- 
BLOWER,  C.  J. 

13  Either  by  imperfect  recollection  ;  Quimby  v.  Buzzell,  1 6  Me.  470 ;  or  by  deny- 
ing all  knowledge  of  tha  matter.  Talbot  v.  Hobson,  7  Taunt.  264. 


392  ACTIONS  ON  NEGOTIABLE  PAPER. 

alleging  that  it  was  sealed  j1  and  if  the  words  of  the  instrument 
refer  to  a  seal,  or  make  no  reference  to  mode  of  authentication, 
the  presumption  is  that  the  seal  was  duly  affixed ; 2  but,  if  the 
words  of  the  note  refer  to  signing  only,  as  "  witness  my  hand 
this,"  «fec.,  a  seal  if  affixed  should  be  proved  as  well  as  the  signa- 
ture.3 

5.  Admissions.'] — The  admission  of  defendant,4  or  his  attorney 
in  the  cause,5  is  competent  proof  of  the  genuineness  of  the  signa- 
ture.    But  the  evidence  must  tend  to  identify  the  note  admitted 
with  that  produced.     If  the  note  was  shown  when  the  admission 
was  made,  a  very  general  admission  that  it  is  all  right,  is  enough  ;6 
if  not  shown,  an  admission  referring  to  it  either  by  the  amount 
alone,7  or  by  the  name  of  the  payee  alone,8  is  not  enough.     If 
only  a  copy  was  shown  there  must  be  other  evidence  that  the  note 
produced  on  the  trial  is  the  original  and  genuine  one.9 

If  the  note  is  not  under  seal,  proof  of  an  admission  by  the 
signer  of  its  genuineness,  dispenses  with  the  necessity  of  calling  a 
subscribing  witness.10  If  under  seal  it  does  not.11 

The  admission  alone  is  not  conclusive ; n  but  if  made  deliber- 
ately, and  with  knowledge  that  the  signature  was  not  genuine,  it 
may  be  available  as  a  ratification,  even  though  the  facts  do  not 
raise  an  estoppel.13  Evidence  that  defendant  accredited  the  paper 
by  acknowledging  it  to  be  genuine,  and  that  plaintiff  acted,1*  or 
refrained  from  acting,15  on  the  faith  of  such  representation,  estops 
defendant  from  denying  the  genuineness.  Evidence  that  defend- 
ant had  previously  recognized  the  validity  of  similar  unauthor- 
ized signatures,  with  knowledge  that  they  were  such,  is  compe- 
tent, as  tending  to  show  authority  in  the  one  who  assumed  to 
sign.16 

6.  Testimony  of  the  supposed  writer.'] — One  cannot  be  required 
to  testify  whether  a  signature  is  his  until  he  has  been  shown  the 


1  ParMson  v.  McKim,  Burn.  (Wis.)  63.     Contra,  Heifer  v.  Alden,  3  Minn.  332. 

*  Merritt  v.  Cornell,  1  E.  D.  Smith,  335  ;    Muckleroy  v.  Bethany,  27  Tex.  551. 

8  Merritt  v.  Cornell  (above). 

4  Though  made  pending  negotiation  for  compromise.  Waldridge  v.  Kennison,  1 
Esp.  143. 

6  Giving  notice  to  produce  a  bill  describing  it  as  signed  by  the  party  is  an  admis- 
sion of  signature.  Steph.  Ev.  26. 

6  Suydam  v.  Coombe,  3  Green  (N.  J.  L.)  133. 

I  Palmer  v.  Manning,  4  Den.  131. 

8  Shaver  v.  Ehle,  16  Johns.  201.      Compare  Minard  v.  Mead,  7  Wend.  68. 
"  Pentz  v.  Winterbottom,  5  Den.  61. 
10  Hall  v.  Phelps,  2  Johns.  451. 

II  Holland  v.  Sebring,  1  South  (4  N.  J.  L.)  105.     Contra,  Stark.  Ev.  606. 

12  Salem  Bank  v.  Gloucester  Bank,  17  Mass.  1,  27. 

13  Hefner  v.  Vandolah,  62  111.  483,  s.  c.  14  Am.  R.  106. 
*M  Kosc.  N.  P.  859,  citing  Leach  v.  Buchanan,  4  Esp.  226. 

15  Casco  Bank  v.  Kcene,  53  Me.  103. 

16  Hammond  v.  Varian,  64  N.  Y.  898.     Whether  it  is  conclusive,  without  showing 
plaintiff's  reliance  on  the  recognition,  compare  Weed  v.  Carpenter,  4  Wend.  219,  and 
Morris  v.  Bethel,  L.  R.  5  C.  P.  47 ;  4  Id.  765. 


RULES  APPLICABLE  GENERALLY.  393 

body  of  the  paper  itself.1  The  party 2  or  a  witness 3  who  has  tes- 
tified as  to  whether  a  signature  is  nis  own,  is  not  entitled,  and 
cannot  be  required  to  write  in  court  as  a  test;4  but  it  is  not 
error  to  permit  him  to  do  so  by  consent.5  He  may  be  asked  if 
the  body  of  the  note  is  in  his  handwriting.6 

The  testimony  of  the  writer,  though  he  be  in  court  and  com- 
petent, is  not  exclusively  the  primary  evidence.  Other  modes  of 
proof,  below  stated,  may  be  resorted  to  without  calling  him.7 
The  testimony  of  the  party  is  not  a  substitute  for  calling  a  sub- 
scribing witness,  if  there  be  one. 

7.  Direct  testimony  to  Particular  Signature.'] — A  witness 
may  testify  positively,  in  the  first  instance,  that  he  knows  the  sig- 
nature shown  him  to  be  that  of  the  defendant,8  and  without  stat- 
ing in  the  first  instance  his  means  of  knowledge.     It  is  for  the 
opposite  party  to  ascertain  by  cross-examination,  now  he  acquired 
his  knowledge.9 

8.  Witness  who  knows  the  Handwriting  generally^ — If  the 
witness  cannot  swear  thus  positively  to  the  particular  signature, 
he  is  incompetent  to  prove  the  signature  without  proof  of  hav- 
ing seen  the  person  write,  or  of  other  circumstances  to  show 
knowledge  of  the  handwriting  which  he  is  called  to  prove.10  Such 
a  witness  therefore  should  be   asked  first  if  he  "  knows "  the 
handwriting  of  the  defendant,  or  if  he  is  "  acquainted  "  with  it, 
or  questions  to  that  effect ;  and  next  should  be  asked  to  state 
his  means  of  knowledge ; n  and  then,  whether  the  signature  is 
that  of  the  party  ;  *  or  whether  he  believes  it  to  be.     Tlie  opinion 
or  belief  of  the  witness  should  be  excluded,  unless  foundation  is 


•  N.  Am.  Fire  Ins.  Co.  v.  Throop,  22  Mich.  161.     But  on  cross-examination  it  is  in 
the  discretion  of  the  Court  to  allow  this.     Hardy  v.  Norton,  66  Barb.  527. 

8  King  v.  Donahue,  110  Mass.  155,  8.  c.  14  Am.  R.  589. 

•  Hutchin's  Case,  4  City  H.  Rec.  119. 

4  Gilbert  v.  Simpson,  6  Daly,  29.     Compare  Chandler  v.  Le  Baron,  45  Me.  534. 

5  Hayes  v.  Adams,  2  Suprn.  Ct.  (T.  «fe  C.)  593. 

6  Haughey  v.  Wright,  12  Hun,  179.     Especially  if  the  terms  of  the  note  are  in 
controversy.     Id. 

7  Edw.  Notes  to  2  Cow.  <fc  H.  507,  and  auth.  cit. ;  s.  P.  An  indictment  for  forgery. 
Foulker's  case,  2  Rob.  (Va.)  836. 

•  Whittier  v.  Gould,  8  Watts  (Penn.)  485;  Goodhue  v.  Bartlett,  5  McLean,  186; 
contra,  Slaymaker  v.  Wilson,  1  Penr.  <fc  W.  216. 

9  Whittier  v.  Gould ;  Goodhue  T.  Bartlett  (above). 

10  The  rule  in  Slaymaker  v.  Wilson  (above),  to  the  effect  that  means  of  knowledge 
must  be  shown  in  the  first  instance,  is  a  sound  rule  for  cases  where  the  witness  testi- 
fies to  his  opinion  from  his  knowledge  of  the  party's  handwriting  as  distinguished 
from  testifying  directly  to  the  genuineness  of  the  signature  from  his  knowledge  of 
the  particular  instrument;  and  this  accords  with  the  general  principle  as  to  opinion 
evidence.     But  Moody  v.  Rowell,  17  Pick  490,  admits  the  testimony  in  both  cases, 
leaving  the  means  of  opinion  to  cross-examination. 

11  Pate  v.  People,  8  111.  644,  660.    Even  though  he  have  apparent  means  of  knowl- 
edge, he  is  not  competent  if  he  can  only  say  he  rather  thinks  he  could  tell  the  hand- 
writing.    Burnhaiu  v.  Ayer,  36  N.  H.  182. 


894:  ACTIONS  ON  NEGOTIABLE  PAPER. 

thns  first  laid.1  The  adverse  party  may  interpose  by  cross-exam- 
ination on  this  as  a  preliminary  question ; 2  and  it  is  for  the  judge 
to  pass  on  the  competency  of  the  witness  to  express  an  opinion 
or  belief. 

9.  Means  of  knowledge.'] — There  is  no  precise  standard  fixing 
the  degree  of  knowledge  necessary.3  The  question  of  qualifica- 
tion depends  rather  on  the  source  of  knowledge  than  its  degree.4 
It  is  sufficient  for  the  purpose  if  it  appear  either : 6 

1.  That  the  witness  has  seen  defendant  write  at  least  once  ; 6 
or, 

2.  That  he  has  seen  writings  which  defendant  either  directly,7 
or  indirectly,  acknowledged  to  be  in  his  handwriting — as,  for  in- 
stance, a  note  which  the  defendant  paid  ; 8  or, 

3.  That  he  has  received  letters,  or  other  documents,  purport- 
ing to  be  written  or  signed  by  the  defendant,  in  answer  to  com- 
munications 9  written  by  himself,  or  under  his  authority,  and  ad- 
dressed to  defendant,  and  has  acted  on  them  as  such  ; 10  or,  if  the 


1  McCracken  v.  West,  17  Ohio,  16.  The  better  opinion  is,  that  if  no  objection  is 
made  to  the  qualification  of  the  witness,  the  omission  to  show  the  source  of  his  knowl- 
edge is  waived. 

4  See  Henderson  v.  Bank,  11  Ala.  855  ;  Barnich  v.  Wood,  3  Jones  (N.  C.)  L.  306, 
310;  Moody  v.  Rowell,  17  Pick.  490. 

3  Hartung  v.  People,  4  Park.  Cr.  319,  324. 

4  Smith  v.  "Walton,  8  Gill  (Md.)  77. 

5  There  is  no  good  reason,  says  Davis,  J.,  for  excluding  testimony  founded  on  any 
other  mode  of.  getting  knowledge  of  handwriting,  if  the  court,  on  the  preliminary 
examination,  can  see  that  the  witness  has  that  degree  of  knowledge  which  will  enable 
him  to  judge.     Rogers  v.  Ritter,  12  Wall.  317. 

6  Magee  v.  Osborn,  32  N.  Y.  669,  reVg  1  Rob.  689 ;  Hammond  v.  Yarian,  54  N. 
Y.  398;  Smith  v.  Walton,  8  Gill  (Md.)77;  Edelen  v.  Gough,  Id.  87;  Rideout  v. 
Newton,  17  N.  H.  71.     Having  seen  him  sign  by  initials  was  held  sufficient,  where 
the  belief  in  genuineness  depended  on  their  form.     Jackson  v.  Van  Dusen,  5  Johns. 
144.     The  testimony  is  not  incompetent  because  he  only  saw  defendant  write    many 
years  ago,  R.  v.  Hornstooke,  25  St.  Tr.  71,  cited  in  Steph.  Ev.  58;  or  since  the  date 
of  the  disputed  signature,  Keith  v.  Lathrop,  10  Gush.  453;  but  if  only  since  the  con- 
troversy arose  it  is  insufficient,  if  not  incompetent.     Utica  Ins.  Co.  v.  Badget,  3 
Wend.  102.     But  seeing  defendant  in  the  aot  of  writing  is  not  enough,  if  there  was 
no- inspection  of  what  he  wrote.     See  Brigham  v.  Peters,  1  Gray,  139.    The  fact  that 
the  witness  is  not  absolutely  positive  of  the  identity  of  the  defendant  with  the  person 
whom  he  saw  write,  does  not  render  his  testimony  incompetent.     See  Woodford  v. 
McCluahan,  9  111.  85 ;  Warren  v.  Anderson,  8  Scott,  384. 

7  State  v.  Spence,  2  Harr.  (Del.)  348. 

8  Johnson  v.  Daverne,  19  Johns.  134;  Hammond  v.  Varian,  54  N.  Y.  398;  and 
see  Hess  v.  State,  5  Ohio,  5  ;  State  v.  Cheek,  13  Ired.  L.  (N.  C.)  114,  120. 

9  Webb  v.  Mauro,  1  Morr.  (la.)  329. 

10Tilford  v.  Knott,  2  Johns.  Cas.  211;  Southern  Express  Co.  v.  Thornton,  41 
Miss.  216.  But  it  is  not  enough  to  show  that  the  witness  has  had  some  business 
with  defendant.  Mapes  v.  Leal,  27  Tex.  345.  Nor  that  he  had  seen  letters  purport- 
ing to  come  from  him,  or  said,  by  other  persons  not  produced,  to  have  come  from 
him.  Philadelphia,  <fec.  R.  R.  Co.  v.  Hickman,  28  Penn.  St.  318,  329;  Goldsmith  v. 
Bane,  3  Halst.  (8  N.  J.  L.)87;  even  though  the  witness  acted  on  them.  Cunning- 
ham v.  Hudson  River  Bank,  21  Wend.  557.  Compare  Steph.  Ev.  Art.  51.  Or 
though  he  can  testify  that  from  their  contents  he  knows  they  mast  have  come  from 
defendant  Philadelphia,  <fcc.  R.  R.  Co.  v.  Hickman  (above). 


RULES   APPLICABLE  GENERALLY.  395 

acts  of  the  witness  done  pursuant  to  the  letters  purporting  to 
come  from  defendant  have  been  ratified  by  defendant ; x  or, 

4.  That,  in  the  ordinary  course  of  business,  writings  or  sig- 
natures purporting  to  be  made  by  defendant,  have  been  habitually 
passed  through  his  hands,  and  acted  on  by  him  as  such ; 2  or, 

5.  That,  as  a  public  officer,  he  has  been  called  upon  to  pass 
on  what  he  believed  to  be  the  defendant's  signature,  and  has  done 
so.8 

If  it  appear  that  the  knowledge  was  acquired  for  the  purpose 
of  the  present  controversy,  the  witness  is  not  qualified.4 

10.  Opinion  or  belief.'] — After  showing  knowledge  of  the 
handwriting  (or  of  the  signature  alone  as  distinguished  from  the 
handwriting  generally),5  founded  on  adequate  means  of  knowl- 
edge, the  witness  may  testify  to  his  belief  or  his  opinion,6  as  to 
genuineness  ;  and  this  evidence  is  sufficient  to  go  to  the  jury  in 
proof  of  execution.7    An  expression  of  belief,  though  not  posi- 
tive, is  competent ;  but  if  hesitating  or  qualified,  it  may  not  alone 
be  sufficient.8 

It  is  not  competent  for  a  witness  who  cannot  swear  to  belief 
or  opinion  to  testify  that  the  writing  is  like  defendant's.9 

11.  Refreshing  memory.'} — A    witness    who    satisfies  these 
rules  may,  before 10  or  at  the  trial,11  refer  to  papers  in  his  pos- 
session which  he  knows  to  be  in  defendant's  handwriting,  to  re- 
fresh his  memory,  before  testifying ;  but  if,  after  so  doing,  he  is 
not  able  to  speak  to  the  genuineness  of  the  signature  in  suit,  ex- 
cept from  comparing  the  two,  his  testimony  on  the  point  is  not 
competent.13 


1  BRONSON,  J.  Cunningham  v.  Hudson  River  Bank,  21  Wend.  55*7.  But,  in  all 
these  cases,  personal  knowledge  of  the  facts  constituting  the  means  of  forming  an 
opinion,  must  be  in  the  witness  who  is  to  express  the  opinion.  Knowledge  in  one, 
and  belief  of  another,  will  not  do.  Power  v.  Frick,  2  Grant  (Penn.)  306.  The 
writings  by  which  the  witness  acquired  his  conversance  with  the  handwriting,  need 
not  be  produced.  Jackson  v.  Murray,  Anth.  N.  P.  143. 

9  Bowman  v.  Sanborn,  25  N.  H.  8*7.     As  in  the  case  of  a  bank  cashier  passing  the 
bills  of  a  neighboring  bank.     So,  also,  of  the  case  of  a  messenger  carrying  defend- 
ants letters  to  the  post-office.     See  Doe  &  Mudd  v.  Suckermore,  6  Ad.  <fe  E.  703,  740; 
Hess  v.  State,  5  Ohio,  5. 

3  Bank  of  Commonwealth  v.  Mudgett,  44  N.  Y.  614,  affi'g  45  Barb.  663;  U.  S.  v. 
Champagne,  1  Ben.  241,  243 ;  Amherst  Bank  v.  Root,  2  Mete.  622, 532. 

4  1  Whart.  Ev.  §  707. 

5  McKonkey  v.  Gaylord,  1  Jones  L.  (N.  C.)  94. 

*  Shitler  v.  Bremer,  23  Penn.  St.  413;  Clark  v.  Freeman,  25  Id.  133;  Fash  v. 
Blake,  38  111.  363. 

1  Hopkins  v.  Megguirp,  35  Me.  78 ;  Magee  v.  Osborn  (above). 

8  Smith  v.  Walton  (above);  Warson  v.  Brewster,  1  Penn.  St.  381.  Compare 
Wiggin  v.  Palmer,  31  N.  H.  251,  270. 

»  Contra,  1  Whart.  Ev.  §  709.  The  reason  why  it  is  not  competent  is  that  evi- 
dence that  one  handwriting  is  like  another,  or  resembles  another,  is  no  evidence 
whatever  that  it  is  the  same. 

10  Redford  v.  Peggy,  6  Rand.  (Va.)  816  ;  see  page  321,  of  this  vol. 

11  Smith  v.  Walton,  8  Gill  (Md.)  77  ;  McNair  v.  Commonwealth,  26  Penn.  St.  888. 
13  Id. 


396  ACTIONS  ON  NEGOTIABLE  PAPER. 

12.  Testing  witness.'] — To  test  or  impeach  the  witness,  he  can- 
not be  shown,  and  examined  as  to  the  genuineness  of  papers, 
neither  in  evidence,  nor  adduced  for  comparison.1    A  witness  can- 
not be  required  to  answer  as  to  part  of  a  signature  before  being 
permittee!  to  see  the  whole ; 2  but  may  express  an  opinion  as  to 
part,  though  unable  to  form  one  as  to  the  rest.8 

13.  Comparison  of  hands. ~\ — The  statute4  is, — "Comparison 
of  a  disputed  writing  with  any  writing5  proved 6  to  the  satisfaction 
"of  the  court  to  be  genuine,  shall  be  permitted  to  be  made  by  wit- 
nesses in  all  trials  and  proceedings,  and  such  writings  and  the  evi- 
dence of  witnesses  respecting  the  same  may  be  submitted  to  the 
court  and  jury,  as  evidence  of  the  genuineness,  or  otherwise,  of 
the  writing  in  dispute."    At  common  law,  this  comparison  may 
be  made  with  writings  already  in  evidence ; 7  but  not  with  others,8 
except  to  prove  an  ancient  document.9 

A  skilled  witness  may  give  opinion  as  to  the  identity  or  differ- 
ence of  the  handwritings.1"      And  the  jury  may  compare  them.11 

14.  Opinions  of  witnesses.'] — In   order  to   express  an   opin- 
ion directly  upon  the   question,   whether  the  writing  shown 


1  Van  Wyck  v.  Mclntosh,  14  N.  T.  439.  Contra,  1  Whart.  Ev.  §  710.  Nor  can 
a  party  allowed  to  do  this  contradict  the  answers.  Van  Wyck  v.  Mclntosh  (above). 

8  See  N.  Am.  Fire  Ins.  Co.  v.  Throop,  22  Mich.  161.  Compare  41  Ala.  626,  634. 
Testing  party  by  signature  of  concealed  paper,  allowed.  66  Barb.  527. 

3  Smith  v.  Walton,  8  Gill.  (Md.)  77. 

4N.  Y.  L.  1880,  c.  36.  Same  Stat.  28  <fc  29  Viet  c.  18,  §  8;  Iowa  Code,  §  3,655. 
Same  rule  without  ^statute,  in  Connecticut,  Lyon  v.  Lyman,  9  Conn.  55,  61 ;  Maine, 
Woodman  v.  Dana,  62  Me.  9;  Mississippi,  Wilson  v.  Beauchamp,  50  Miss.  24;  Mass., 
Moody  v.  Rowell,  17  Pick.  490;  and  New  ffamp.,  State  v.  Hastings,  53  N.  H.  452. 

5  Unsigned  writings  may  be  used.     Richardson  v.  Newcomb,  21  Pick.  315,  317. 
But  not  letter-press  copies.     Commonw.  v.  Eastman,  1  Cush.  189. 

6  Beyond  doubt.     Martin  v.  Maguire,  7  Gray  (Mas?.),  177,  178.    For  instance,  by  a 
witness  who  saw  the  person  write  the  very  paper  (1  Iowa,  ]  59);  or  by  the  admission  of 
the  writer,  or  of  his  counsel  (2  Me.  [2  Greenl.]  33),  unless  offered  on  his  own  behalf 
(1  Iowa,  159).  The  opinion  of  awitnessis  not  enough  (1  Cush.  189).  Nor  letters  merely 
proved  to  have  been  received  (108  Mass.  344).   Nor  a  certificate  of  acknowledgment 
(7  Gray,  177;  1  Iowa,  159). 

'  Moore  v.  U.  S.  9]  U.  S  (1  Otto),  270 ;  Henderson  v.  Hackney,  16  Geo.  521 ;  Wil- 
liams v.  Drexel,  14  Md.  566.  And,  according  t->  some  authorities,  any  proceeding  in 
the  cause,  incontestably  signed  by  the  party  (Northern  Bk.  v.  Buford,  1  Duv.  [Ky.] 
835;  Dunlop  v.  Silver,  1  Cranch  C.  Ct.  27;  Shannon  v.  Fox,  Id.  133). 

8  Moore  v.  U.  S.  (above),  (unless  by  consent,  Kannou  v.  Galloway,  58  Tenn.  230). 
This  rule  has  been  applied  also  in  Alabama,  State  v.  Givens,  6  Ala.  747;  Illinois,  Bd.  of 
Trustees  v.  Misenheimer,  78  111.  22;    Kentucky,  McAllister  v.  McAllister,  7  B.  Mon. 
269;  Maryland,  Tome  v.  Parkersburgh  R.  R.  Co.,  39  Md.  36,  s.  c.  17  Am.  R.  640,661; 
Micfiiffan,\&n  Sickle  v.  People,  29  Mich.  61;    New  Jersey,  West  v.  State,  22  N.  J.  L. 
(2  Zab.)  212 ;  North  Carolina,  Ot?y  v.  Hoy.  3  Jones,  407  ;   Tennessee,  Clark  v.  Rhodes, 
2  Heisk.  206 ;    Texas,  Hanley  v.  Gandy,  28  Tex.  211 ;  Virginia,  Rowt  v.  Kyle,  1  Leigh, 
216;  West  V.  Clay  v.  Alderson,  10  W.Va.  49;    Wisconsin,  Pierce  v.  Northey,  14  Wis.  9. 

In  Indiana  (Burdick  v.  Hunt,  43  Ind.  281).  writings,  admitted  to  be  genuine,  are 
thus  used.  Writings  proved  or  admitted  are  used  for  purposes  of  corroboration  only, 
in  Indiana,  Clark  v.  Wygatt,  15  Ind.  271  ;  but  see  43  Id.  281;  Pennsylvania,  Hay- 
cock  v.  Greup,  57  Penn.  St.  438  :  Souffi  Car.,  Bennett  v.  Matthews,  5  S.  C.  478. 

9  Strother  v.  Lucas,  6  Pet.  763;  Woodard  v.  Spiller,  1  Dana.  (Ky.)  179,  181. 

10  Moody  v.  Rowell,  1 7  Pick.  (Mass.)490,496.    Contra,  Travis  v.  Brown,  43  Penn.  St.  9. 

11  State  v.  Hastings,  63  N.  H,  452.      Contra,  Huston  v.  Schindler,  46  Ind.  38. 


RULES  APPLICABLE  GENERALLY.  397 

the  witness  is  that  of  the  person  to  whom  it  is  imputed,  when 
this  is  the  question  for  the  jury,  the  witness  must  know  the 
handwriting,  by  means  of  knowledge  such  as  are  indicated  above.1 
But  an  expert  properly  qualified,  although  he  does  not  know  the 
handwriting,  may  express  an  opinion  as  to  the  characteristics  of 
the  writing  in  evidence — for  instance,  as  to  the  age  of  the 
writing,  and  of  the  paper ;  as  to  whether  the  writing  is  simu- 
lated or  constrained,  or  natural ; 2  whether  the  whole  was  written 
at  the  same  time,3  by  the  same  hand,4  and  with  the  same  pen  and 
ink;5  whether  it  has  been  altered;6  whether  writing  upon  a 
crease  in  the  paper  was  made  before  or  after  the  crease ; 7  and 
whether  writing  upon  an  erasure  was  made  before  or  after  the 
body  of  the  document  was  written,8  and  k>  general  as  to  all  matters 
which  require  special  skill  and  scientific  research  to  discover 
and  explain.9 

The  grounds  and  reason  of  his  opinion  may  be  called  for  on 
direct  as  well  as  on  cross-examination.10 

15.  Matters  of  'description.'] — Beside  the  expression  of  opinion, 
a  competent  witness  may  describe  the  condition  and  appearance 
of  the  document,  so  far  as  material,  for  the  purpose  of  having 
them  stated  in  the  record.11  So  one  not  an  expert  may,  of  course, 
testify  to  facts  he  observed,  such  as  the  apparent  effect  of  a  pow- 
der found  on  the  alleged  forger's  person.1^ 


1  Paragraphs  8  and  9.  This  I  understand  to  be  the  common  law  rule  still  in  force 
in  New  York  and  some  other  States.  Goodyear  v.  Vosburgh,  63  Barb.  156  ;  Frank 
v.  Chemical  Bank,  87  Super.  Ct.  (J.  &  S.)  31 ;  People  v.  Spooner,  1  Den.  543;  Tome 
v.  Parkersburgh  R.  R.  Co.  39  Md.  36,  s.  o.  17  Am.  R.  540;  although  the  rule  is  not 
uniformly  applied  in  practice.  The  rule  is  a  proper  corollary  of  that  which  ex- 
cludes comparison  of  hands  ;  for  otherwise  an  expert  might  testify  to  an  opinion 
formed  on  a  comparison  of  hands  out  of  court,  and  exclude  the  comparison  from  the 
jury.  Contra,  Moody  v.  Rowell,  17  Pick.  490  (the  leading  case  in  favor  of  expert 
opinions  as  to  genuineness);  Hicks  v.  Person,  19  Ohio,  426,  441 ;  Withee  v.  Rowe, 
45  Me.  571,  589 ;  Woodman  v.  Dana,  52  Id.  9  ;  and  see  Lyon  v.  Lyman,  9  Conn.  55; 
Travis  v.  Brown,  43  Penn.  St.  9 ;  and  5  Am.  L.  Rev.  238. 

s  People  v.  Hewit,  2  Park  Cr.  20.  But  the  mere  denial  of  a  signature,  without  al- 
legation or  evidence  that  it  is  simulated,  does  notjustify  the  admission  of  evidence 
that  it  is  not  simulated.  Rowing  v.  Manly,  49  N.  Y.  192,  203,  s.  c.  li  Abb.  Pr.  N.  S. 
276. 

3  Dubois  v.  Baker,  30  N.  Y.  355,  363,  365,  affi'g  40  Barb.  556 ;  Quinsigamond 
Bankv.  Hobbs,  11  Gray,  250,  257. 

*  State  v.  Ward,  39  Vt.  225,  236.  But  compare  Lodge  v.  Phipher,  11  Serg.  & 
R.  833  ;  and  Fulton  v.  Hood,  84  Penn.  St.  365. 

6  Fulton  v.  Hood,  84  Penn.  St.  365. 

6  Moye  v.  Herndon,  30  Miss.  110,  118. 

7  Bacon  v.  Williams,  13  Gray,  525.     Contra,  Sackett  v.  Spencer,  29  Barb.  187. 
Unsound. 

8  Dubois  v.  Baker,  30  N.  Y.  355.     But  not  whether  erasures  were  made  by  a  pe- 
culiar instrument  found  in  the  party's  possession.     Commonwealth  v.  Webster,  5 
Cush.  295. 

9  Frank  v.  Chemical  Nat.  Bk.  37  Super.  Ct.  (J.  <fc  S.)  81. 

10  Keith  v.  Lathrop,  10  Cush.  453. 

11  Dubois  v.  Baker  (above). 

18  People  v.  Brotherton,  47  Cal.  888. 


398  ACTIONS  ON  NEGOTIABLE  PAPER. 

16.  Qualifications  of  witness.'] — The  qualifications  of  the  ex- 
pert must  be  such  as  are  appropriate  to  the  questions  on  which 
nis  opinion  is  sought.     Special  conversance  with  handwriting, 
whether  acquired  in  teaching  it  as  a  writing-master,1  or  in  scruti- 
nizing it  as  a  bank  cashier,2  or  as  a  business  man  in  commercial 
employments,3  qualifies  a  witness  to  express  some  opinion  as  to 
handwriting;  for  the  qualification  does  not  depend  on  vocation, 
but  on  intelligence,  means  of  knowledge  and  practical  experience ; 
and  it  is  not  necessary  that  the  witness  claim  to  be  an  expert ;  * 
although  experience  in  the  special  duty  of  examining  and  detect- 
ing alterations,  erasures  and  forgeries,  enhances  the  qualification 
of  the  witness.     But  mere  skill  in  judging  handwriting  does  not 
necessarily  qualify  to  express  an  opinion  as  to  the  age  of  writing ; s 
or  whether  an  erasure  has  been  made.6 

17.  Photographs.'] — In  aid  of  evidence  on  the  question  of  gen- 
uineness, magnified  photographs  of  the  writing  in  evidence  are 
competent,7  upon  preliminary  proof  of  their  accuracy,8  and  the 
photographer  may  be  examined  as  an  expert.9 

18.  Mark] — Signature  by  mark  does  not  require  any  special 
allegation,10  nor  any  different  mode  of  proof.11     An  expert  may 
testify  that  a  mark,  purporting  to  be  the  signature  of  a  very  old 
man,  could  not  have  been  made  by  the  unaided  hand  of  such  a 
man.12 

19.  Identity  of  names.'] — A  discrepancy  in  name  between  the 
pleading  and  the  bill  or  note,  or  between  the  name  of  the  payee 
and  the  indorser,  should  be  explained  by  evidence  of  identity.13 
Where  the  names  are  identical,  identity  of  person  is  presumed  in 
support  of  the  action,  unless  the  name  is  too  common  to  allow 
the  reasonableness  of  a  presumption  of  identity,14  or  there  are  cir- 
cumstances in  evidence  negativing  it,15  or  it  appears  that  there  are 


1  Moody  v.  Rowell,  17  Pick.  490 ;  Bacon  v.  Williams,  13  Gray,  525. 

2  Dubois  v.  Baker,  30  N.  Y.  355. 

3  Hyde  v.  Woolfolk,  1  Iowa,  159,  166. 

4  Id 

6  Clark  v.  Bruce,  12  Hun,  271. 

6  Swan  v.  CTFallon,  7  Mo.  231,  237. 

7  Marcy  v.  Barnes,  16  Gray,  161.     Contra,  Tome  v.  Parkersburgh,  <fec.  R.  R.  Co. 
39  Md.  36,  s.  c.  17  Am.  R.  540. 

8  Taylor  Will  Case,  10  Abb.  Pr.  N.  S.  301. 

9  Marcy  v.  Barnes  (above). 

10  Walbridge  v.  Arnold,  21  Conn.  424,  429. 

11  See  Jackson  v.  Van  Duaen,  5  Johns.  144 ;  1  Whart.  Ev.  §  696. 

12  Lansing  v.  Russell,  3  Barb.  Ch.  325.     But  such  testimony  loses  its  force  if  the 
subscribing  witness  testify  that  the  hand  was  guided  by  another. 

18  2  Pars,  on  Pr.  N.  &  B.  474, 479.  Compare  Hunt  v.  Stewart,  7  Ala.  525 ;  where 
the  omission  of  a  middle  initial  was  not  held  sufficient  to  require  evidence  of  identity, 
and  see  2  Dan.  Neg.  Inst.  221 ;  and  see  Fletcher  v.  Conly,  2  Greene  (Iowa),  88.  But 
identity  of  holder  with  payee  of  the  same  name  was  not  presumed  in  Curry  v.  Bank 
of  Mobile,  to  defeat  claim  to  be  bonafide  indorsee  before  maturity. 

14  1  Whart.  Ev.  665,  §  701. 

15  See  p.  101,  of  this  voL 


RULES  APPLICABLE  GENERALLY.  399 

two  persons  of  similar  name  and  residence,  or  similar  name  and 
vocation.1  Parol  evidence  of  identity  is  admissible,  and  a  va- 
riance in  the  pleading  amendable. 

20.  Fictitious  person^ — The  fact  that  a  person  to  whose  or- 
der the  paper  was  payable  was  a  fictitious  person,2  may  be  shown 
by  parol ;  and  as  evidence  of  the  party's  knowledge  of  the  fact,  it 
is  competent  to  show  that  he  had  executed  other  similar  paper, 
under  circumstances  implying  such  knowledge.3 

21.  Joint  makers,  &cl\ — Where  a  joint  note  is  shown  to  have 
been  given  upon  a  joint  liability,  it  will  be  presumed  it  was  in- 
tended the  note  should  be  several  as  well  as  joint,  except  in  the 
case  of  a  mere  surety.4 

22.  Married  women.'] — In  an  action  on  notes  made  by  a  mar- 
ried woman  to  the  order  of  and  indorsed  by  her  husband,  there 
must  be  extrinsic  evidence  that  they  were  in  fact  made  in  her 
separate  business,  or  for  the  benefit  of  her  separate  estate.     The 
fact  that  she  gave  them  to  her  husband  to  be  discounted,  raises 
no  presumption  for  this  purpose.5 

23.  Agent's  Signature.'] — If  the  signature  or  indorsement  is 
by  an  agent,  his  handwriting  and  authority  must  be  proved.6    An 
allegation  of  agency  is  not  necessary,  and  if  it  be  alleged,  a 
further  allegation  or  authority  is  not  needed.7    If  the  allegation 
is  that  the  defendant  signed  or  indorsed,  an  admission  of  execu- 
tion will  usually  include  admission  of  the  authority  of  the  agent ; 
but  if  the  signature  is  that  of  an  apparent  agent,  and  the  allega- 
tion is  that  the  agent  signed,  an  admission  of  the  execution  with 
a  denial  of  all  other  allegations,  will  put  in  issue  the  authority  of 
the  agent.8    But  an  admission  of  the  agent's  authority  without 
qualification,  admits  that  he  acted  within  its  scope. 

The  authority  of  an  agent  to  sign  or  to  indorse  may  be  shown 
by  oral  communications  or  by  implication.9  "Written  evidence  is 
not  necessary.  Authority  may  be  inferred  even  where  no  ex- 
press authority  existed,  from  the  usage  of  the  agent  to  make 
such  paper,  w\th  the  knowledge  and  tacit  assent  of  the  principal ; 


1  2  Whart.  (above).    For  a  collection  of  authorities  on  names,  see  18  Alb.  L.  J. 
126. 

1  1  N.  Y.  R.  S.  768,  §  6. 

1  Gibson  v.  Hunter,  2  H.  Bl.  288  ;  Rose.  N.  P.  93. 

4  Yorks  v.  Peck,  14  Barb.  644.  For  the  rules  of  proof  in  case  of  joint  admissions, 
see  pp.  186,  Ac.  of  this  vol. 

5  Second  National  Bank  of  Watkins  v.  Miller,  63  N.  Y.  639,  affi'g  2  Supm.  Ct. 
(T.  A  C.)  104.     For  the  rules  of  proof  in  actions  on  married  women's  notes,  Ac.  see 
pp.  163,  Ac.  of  this  voL 

•  See  Nixon  v.  Palmer,  8  N.  Y.  398  ;  Beach  v.  Vandewater,  1  Sandf.  265. 

7  Moore  v.  McClure,  8  Hun,  557. 

8  Chambers  County  v.  Clews,  21  Wall.  822. 

9  2  Greenl.  on  Ev.  49,  §  61 ;    Trull  v.  True,  33  Me.  367;    Moore  v.  Bank  of  Me- 
tropolis,  13  Pet.  802.     As  to  what  amounts  to  evidence  of  authority,  compare  N.  Y. 
Dig.  new  ed.  Prin.  A  A.  76,  82,  95,  114. 


400  ACTIONS  ON  NEGOTIABLE  PAPER. 

and  evidence  of  such  a  fact  is  competent  even  though  it  be  not 
also  shown  that  it  was  known  to  the  plaintiff.  Evidence  that  the 
plaintiff  knew  the  fact  and  in  good  faith  relied  on  it  as  showing 
authority,  is  competent,  and  may  raise  an  equitable  estoppel  in 
his  favor. 

One  who  seeks  to  support  a  transaction  with  an  agent  in  his 
own  name,  by  a  previous  course  of  dealing  implying  authority, 
should  show  that  the  form  of  the  previous  transactions  were 
such  as  to  justify  reliance  on  the  agent's  authority ; 1  or,  at  least, 
to  amount  to  a  holding  out  of  the  agent  as  authorized.  Author- 
.  ity  to  buy  and  sell  does  not  imply  authority  to  make  negotiable 
paper  even  in  buying.2  Authority  to  sign  as  maker  or  surety 
cannot  be  inferred  from  a  general  usage  to  indorse.3 

To  charge  one  personally,  who  signs  as  agent  in  a  form  ade- 
quate to  bind  his  principal,  the  burden  is  on  plaintiff  to  show 
that  defendant  was  not  in  fact  authorized  to  sign.4 

24.  Partnership  Signature."] — The  partnership  of  the  defend- 
ants having  been  proved,  as  stated  elsewhere,5  it  is  enough  to 
prove  the  signature,  unless  by  reason  of  the  character  of  the  busi- 
ness, etc.,  evidence  of  authority  is  necessary ;  and  the  signature 
may  be  proved  by  evidence  of  the  handwriting  of  him  who  wrote 
it,  or  by  admission  of  either  partner.  The  partnership,  and  their 
signature  being  shown,  plaintiff  may  rely  on  the  presumption  of 
law  that  the  signature  was  given  for  partnership  purposes,  or  by 
authority  of  the  other  partners  (even  though  the  partner  be  in- 
dividually a  party) 6  without  showing  that  the  firm  was  a  com- 
mercial or  trading  firm,  or  that  the  act  was  ratified,  unless  some 
of  these  facts  are  alleged  in  his  pleading.7  If  it  appear,  however, 
on  the  face  of  the  paper8  or  otherwise,  either  that  the  firm  was  a 
non-trading  firm,  in  which  such  authority  is  not  implied,9  or  that 


1  Thus  an  agent  of  a  firm  who  took  a  draft  from  their  debtor  payable  to  "  my 
order "  instead  of  to  "  our  order,"  is  not  presumed  to  have  been  authorized,  from 
mere  proof  that  he  had  previously  taken  drafts  in  the  course  of  his  agency,  unle  s 
the  form  of  the  previous  drafts  is  shown.     Hogarth  v.  Wherley,  L.  R.  10  Com.  PI. 
630,  s.  c.  14  Moak's  Eng.  R.  474.     Compare  Exchange  Bank  v.  Monteath,  26  N.  Y. 
505 ;  Reed  v.  Carpenter,  10  Wend.  403  ;  Llewellyn  v.  Winckworth,  13  M.  &  Tr.  598  ; 
Rose.  N.  P.  358.        • 

2  But  an  amendment  so  as  to  recover  on  the  original  consideration  is  allowable. 
Vibbard  v.  Roderick,  51  Barb.  616. 

8  Early  v.  Reed,  6  Hill,  12. 

4  Walker  v.  Bank  of  State  of  N.  Y.  9  N.  Y.  682,  affi'g  13  Barb.  636  ;  and  see  Shef- 
field v.  Ladue,  16  Minn.  388,  s.  c.  10  Am.  R.  145.  According  to  the  Massachusetts 
cases  also,  he  must  show  that  defendant  intended  to  use  the  name  to  bind  himself. 
Bartlett  v.  Tucker,  104  Mass.  836,  a.  c.  6  Am.  R.  240 ;  or  actually  received  the  con- 
sideration. Compare  White  v.  Madison,  26  N.  Y.  117,  8.  o.  less  fully,  26  How. 
Pr.  481. 

6  Pp.  206-210  of  this  vol. 

6  Bank  of  Commonwealth  v.  Mudsjett,  44  N.  Y.  514. 

T  Carrier  v.  Cameron,  31  Mich.  373,  s.  c.  18  Am.  R.  192;  Gansevoort  v.  Williams, 
14  Wend.  134;  1  Wood's  Coll.  678,  n. 

8  As,  for  instance,  where  the  firm  sign  as  surety.     Boyd  v.  Plumb,  7  Wend.  309. 

•  Smith  v.  Sloan,  37  Wis.  285,  s.  c.  19  Am.  R.  757. 


RtJLES  APPLICABLE  GENERALLY.  401 

the  paper  was  given  by  a  member  out  of  the  firm  business,1  the 
burden  is  upon  the  plaintiff,2  holder  of  the  note,  to  prove  the  au- 
thority, necessity,  usage  or  ratification  which  may  sustain  the 
act.  The  fact  that  paper  indorsed  was  negotiated  to  plaintiff  by 
the  maker  or  payee,  is  prima  facie  evidence  that  it  was  accom- 
modation.3 If  it  was  in  terms  payable  to  the  firm,  in  whose  name 
it  is  indorsed,  the  fair  inference  is  that  it  was  indorsed  in  usual 
course  of  business.4  Evidence  that  it  was  accommodation  paper 
is  sufficient  to  throw  on  plaintiff  the  burden  of  giving  further 
evidence  to  bind  the  other  partners  than  the  one  who  signed  the 
firm  name.5 

As  against  one  who  has  made  negotiable  paper  payable  to  a 
firm  name,6  or  indorsed  negotiable  paper  drawn  by  a  firm  name,7 
the  production  of  the  paper  is  sufficient  evidence  of  the  existence 
of  the  firm  ;  and  the  names  of  the  third  persons  who  constituted 
the  firm  need  not  be  alleged.8 

25.  Corporation  Paper. ~\ — A  business9  corporation,  in  the  ab- 
sence of  special  provision  of  charter,  has  implied  power  to  make 
negotiable  paper  in  the  usual  course  of  its  business,10  but  the  au- 
thority of  the  officer  or  agent,  and  the  fact  that  the  note  was 
given  in  the  legitimate  business  of  the  company,  must  be 
proven.  An  allegation  that  the  paper  was  made  or  indorsed  by 
defendants  implies  a  lawful  making  or  indorsement ;  and  the 
burden  is  on  defendants  to  show  that  it  was  not  lawfully 
done.  It  need  not  be  averred  in  the  complaint  that  the  note 
was  indorsed  by  defendants  in  the  course  of  their  legitimate 
business.11 

The  cashier  of  a  bank  is  presumed  to  have  authority  to  in- 
dorse and  transfer  paper  belonging  to  it,  in  the  ordinary  course 
of  business^12  but  not  to  indorse  for  his  own  accommodation.18 

1  Gansevoort  v.  Williams  (above);  Hoskinson  v.  Eliot,  62  Penn.  St.  393;  Man- 
ning v.  Hays,  6  Md.  5;  Leverson  v.  Lane,  13  C.  B.  N.  S.  278;  Kendall  v.  Wood,  L. 
R.  6.  Exch.  243. 

s  As  to  bonafide  transferees,  see  subsequent  paragraphs. 

8  Hendric  v.  Berkowitz,  37Cal.  113. 

4  Catskill  Bank  v.  Stall,  15  WenJ.  366 ;  18  Id.  466. 

5  Lemoine  v.  Bank  of  N.  A.  3  Dill.  C.  Ct.  48.      Otherwise,  of  a  guaranty.      Nat. 
Bank  T.  Carpenter,  34  Iowa,  433. 

8  Blodgett  v.  Jackson,  40  N.  H.  21. 

7  Dalrymple  v.  Hillenbrand,  62  N.  T.  5,  s.  c.  20  Am.  R.  438. 

8  Bacon  v.  Cook,  1  Sandf.  77. 

9  As  to  municipal  corporations,  see  Mayor,  <fec.  v.  Ray,  19  Wall.  468. 

10  McCullough  v.  Moss,  5  Den.  567 ;  Benedict  v.  Lansing,  Id.  283  ;    and  see  Moss 
v.  McCullough,  7  Barb.  279.     As  to  distinction  between  this  and  accommodation 
paper,  see  Olcott  v.  Tioga  R.  R.  Co.  27  N.  Y.  546,  affi'g  40  Barb.  179;    Morford  v. 
Farmers'  Bank  of  Saratoga  Co.  26  Barb.  568  ;  Bridgeport  City  Bank  v.  Empire  Stone 
Dressing  Co.  30  Barb.  421,  s.  c.  19  How.  Pr.  51 ;    Mech.  Bank.  Asso.  v.  N.  Y.  <fe  Sau- 
gerties  White  Lead  Co.  35  N.  Y.  505,  affi'g  23  How.  Pr.  74,  s.  c.  less  fully.  20  Id.  609. 

11  Mechanics'  Banking  Association  v.  Spring  Valley  Shot  <fe  Lead  Co.  25  Barb  419 
rev'g  13  How.  Pr.  227. 

11  Matthews  v.  Mass.  Nat.  Bk.  1  Holmes,  396,  and  see  3  Am.  L.  Rev.  612,  and  cas.  cit 
13  West.  St.  Louis  Sav.  Bk.  v.  Shawn.ee  Co.  Bk.  95  U.  S.  (5  Otto)  537.  affi'g  3, 
Dill.  403.     Compare  Pope  v.  Bank  of  Albion,  57  N.  Y.  126,  rev'g  59  Barb.  226. 
26 


402  ACTIONS  ON  NEGOTIABLE  PAPER. 

Authority  in  other  officers  is  sufficiently  shown  by  evidence  of 
their  constant  usage  to  do  so,1  known  to  the  corporation  or  board.2 

26.  Oral  evidence  to  show  real  party.~\ — Persons  dealing  with 
negotiable  instruments  are  presumed  to  take  them  on  the  credit 
of  the  parties  whose  names  appear  upon  them ;  but  if  there  are 
sufficient  indications  on  the  face  of  the  paper  to  show  that  it 
might  reasonably  have  been  intended  as  a  contract  by8  or  with4 
another  than  the  one  named, — as  for  instance  where  a  corpora- 
tion note  is  signed  by  an  officer,  or  where  a  note  is  expressed  or 
indorsed  as  payable  to  a  cashier, — oral  evidence  is  admissible  for 
the  purpose  of  enabling  the  real  party  to  recover ;  and  equally  to 
charge  the  real  party;6  but  not  usually  for  the  purpose  of 
exonerating  the  signer,6  unless  to  show  that  he  contracted  as 
agent  for  a  government. 7  For  the  purpose  of  thus  showing  the 
real  party,  the  conversations  of  the  parties  to  the  transaction,  at 
the  time  of  making  the  paper,  and  at  the  time  of  creating  the 
consideration  for  the  bill  or  note(  are  admissible  as  part  of  the  res 
gestce.6  When  individuals  subscribe  their  proper  names  to  a 
promissory  note,  prima  facie  they  are  liable  personally,  though 
they  add  a  description  of  the  character  in  which  the  note  is 
given ;  but  such  presumption  of  liability  may  be  rebutted,  as 
between  the  original  parties,  by  proof  that  the  note  was  in  fact 
given  by  the  makers  as  agents,  with  the  payee's  knowledge  of 
that  fact. 9  But  even  where  the  signature  is  with  an  addition 


1  Marine  Bank  v.  Clements,  81  N.  Y.  33,  affi'g  6  Bosw.  166. 

9  Lawrence  v.  Gebhard,  41  Barb.  575.  Whether  the  bank  ia  estopped  by  state- 
ment of  cashier  to  surety,  whom  he  knew  to  be  such,  that  note  was  paid,  compare 
Cocheco  Nat.  Bank  v.  Haskell,  51  N.  H.  116,  s.  c.  12  Am.  R.  67  and  75  note,  and 
Bank  v.  Seward,  37  Me.  519. 

3  Mechanics  Bank  v.  Bank  of  Columbia,  6  "Wheat.  326,  337. 

*  Baldwin  v.  Bank  of  Newbury,  1  Wall.  234. 

6  Compare  Baldwin  v.  Bank  of  Newbury,  1  Wall.  234;  Briggs  y.  Partridge,  65 
N.  Y.  363,  and  cases  cited ;  Eastern  R.  R.  Co.  v.  Benedict,  5  Gray,  566,  and  see  p. 
672;  Caldwell  v.  Mohawk  Bank,  64  Barb  333,  and  cases  cited;  and  see  9  Moak's 
Eng.  15,  and  cases  cited.  The  Supreme  Court  of  the  United  States  sanctions  the 
same  rule  where  nothing  appears  on  the  f. ice  of  the  paper  to  indicate  agency.  A 
certificate  of  deposit  signed  with  an  individual  name,  may  be  shown  by  parol  evi- 
dence in  an  action  against  one  not  named,  to  be  the  contract  of  the  latter  made  by 
the  signer  as  the  clerk  or  agent  of  the  latter.  Coleman  v.  First  Nat.  Bank,  53  N.  Y. 
388  ;  64  Barb.  83.  Evidence  that  the  transaction  was  at  defendant's  counter,  in  the 
usual  course  of  their  business,  in  pursuance  of  inquiry  for  defendants  and  without 
mention  of  the  agent's  name,  is  sufficient  to  sustain  a  finding  that  the  contract  was 
by  the  defendant*.  Compare  Shields  v.  Niagara  Savings  Bank,  3  Hun,  477 ;  Rich  v. 
Niagara  Savings  Bank,  3  Hun,  481 ;  and  Van  Leuven  v.  First  Nat.  Bank,  54  N.  Y. 
671,  affi'g  6  Lans.  373. 

For  the  rule  where  there  is  no  extrinsic  evidence,  see  De  Witt  v.  Walton,  9  N.  Y. 
571 ;  Fisher  v.  Eldridge,  12  Gray,  472  ;  and  see  9  Am.  R.  161. 

6  Compare  Brown  v.  Poster,  7  Allen,  337;  Barbour  v.  Litchfield,  4  Abb.  Ct.  App. 
Dec.  655. 
,  7  Goodwin  v.  Robarts,  L.  R.  10  Exch.  337,  s.  c.  14  Moak's  Eng.  591. 

8  Bank  v.  Kennedy,  17  Wall.  24. 

9  Haile  v.  Pierce,  33  Md.  327  ;  Hood  v.  Hallenbeck,  7  Hun,  362.    Contra,  Tucker 
Co.  v.  Fairbanks,  98  Mass.  101,  and  cases  cited ;  Carpenter  v.  Farnsworth,  106  Id, 
661,  s.  o.  8  Am.  R.  360;  Sturdevant  v.  Hall,  59  Me.  172,  s.  c.  8  Am.  R.  409. 


BULES  APPLICABLE   GENERALLY.  403 

indicating  agency  or  official  character,  it  is  not  always  enough  to 
prove  that  the  other  contracting  parties  knew  the  facts,  and  that 
the  consideration  went  to  the  principal  or  corporation  :  for  the 
parties  may  have  intended  to  pledge  the  personal  credit  of  the 
apparent  signers. x 

As  between  principal  and  agent,  an  agent  who  signs  or  in- 
dorses in  his  own  name,  may  prove  by  parol,  that  it  was  not  the 
intention  that  he  should  be  bound  personally, 2  but  the  evidence 
should  be  clear  and  strong. 3 

27.  Evidences  of 'title  .] — Plaintiffs  possession4  of  negotiable 
paper,  not  expressed  or  indorsed  to  be  payable  to  another  person,5 
\Qprimafacie  (but  not  conclusive)  evidence  of  his  title,  and  if  it 
be  expressly  payable  to  him,  or,  if  not  so  expressed,  if  it  be  pay- 
able after  its  date,  he  holds  it  clothed  with  the  presumption  that 
it  was  negotiated  for  value  in  the  usual  course  of  business  at  the 
time  of  its  execution,  and  without  notice  of  anv  equities  between 
the  prior  parties  to  the  instrument. 6  Even  if  he  once  indorsed 
it  away,  his  possession  is  presumptive  evidence  of  his  title, 
whether  his  and  subsequent  indorsements  be  cancelled 7  or  not. 8 
If  the  paper  is  restricted  "  to  order,"  and  title  is  not  shown  as 
above,  plaintiff  must  give  evidence  of  his  title. 9  In  an  action  by 
an  indorsee  against  the  drawer  of  a  bill  or  acceptor  or  maker  of  a 
note  payable  to  order,  the  payee's  indorsement  must  be  proved  ;10 
but  when  sufficient  has  been  proved  to  show  the  instrument  pay- 
able to  bearer,  subsequent  indorsements  need  not  be  proved,  in 
the  first  instance,  although  restrictive.11  Against  an  indorser 


1  Powers  v.  Briggs,  79  HI.  493,  s.  c.  22  Am.  R.  175.  Compare  Houghton  v.  First 
Nat.  Bank  of  Elkhorn,  26  Wise.  663,  a  c.  7  Am.  R.  107. 

5  Lewis  v.  Brehme,  33  Md.  412,  s.  c.  3  Am.  R.  190,  qualifying  Story  on  Ag.  §  157 ; 
Chitty  on  B.  46. 

3lb. 

4  Actual  possession  as  distinguished  from  constructive  possession,  or  symbolical 
delivery,  essential.  Muller  v.  Pondir,  55  N.  Y.  325,  affi'g  6  Lans.  472. 

8  Collins  v.  Gilbert,  94  U.  S.  -(4  Otto),  753,  and  cases  cited.  The  presumption  is 
sufficient  even  where  it  appears  that  plaintiff,  not  being  the  original  party,  paid  noth- 
ing for  it.  Brown  v.  Penfield,  36  N.  Y.  473,  affi'g  24  How.  Pr.  64;  May  v.  Richard- 
son, 3  Gray,  142.  If  the  plaintiff,  with  possession,  has  other  lawful  documents  going 
with  the  instrument, — as  a  genuine  letter  of  introduction  from  a  correspondent — this 
presumption  is  strengthened.  And  in  general  this  presumption  is  stronger  in  pro- 
portion as  it  would  be  easy  to  rebut  it  if  erroneous,  2  Pars,  on  Pr.  N.  <fec.  480. 

Where  the  paper  is  to  bearer  or  indorsed  in  blank,  allegations  in  the  complaint 
as  to  how  the  hollar  acquired  title  thereto  from  the  payee,  are  unnecessary.  Mech- 
anics' Bank  v.  Straiton,  8  Abb.  Ct.  App.  Dec.  269  ;  and  if  made  need  not  be  proved. 
Bedell  v.  Carll,  83  N.  Y.  581.  If  plaintiff,  appearing  on  the  record  individually,  be 
an  executor  or  administrator,  the  objection  that  he  holds  as  such,  if  material,  must 
be  raised  at  the  trial  in  order  that  he  may  give  further  evidence  as  to  his  personal 
interest.  See  Barlow  v.  Myers,  64  N.  Y.  41,  46. 

6  Collins  v.  Gilbert,  94  tl.  S.  (4  Otto),  758. 
1  Dollfus  v.  Frosch,  1  Den.  367. 

8  Mottram  v.  Mills,  1  Sanclf.  37. 

9  Dorn  v.  Parsons,  56  Mo.  601. 
10  2  Pars,  on  Pr.  N.  <fcc.  485. 
"Id. 


404  ACTIONS  OX  NEGOTIABLE  PAPER. 

proof  of  his  indorsement  is  sufficient  proof  of  all  the  previous 
indorsements  through  whom  the  holder  chooses  to  deduce  title. l 

28.  Delivery, .] — Delivery  is prima  facie  shown  by  production 
of  the  paper.3    The  time®  and  purpose4  of  delivery  may  be 
proved  by  parol.     If  delivered  by  letter  the  letter  is  competent, 
as  part  01  the  res  gestce ; 8  if  manually  delivered,  the  conversation 
is  competent. 6 

Unless  the  note  be  sealed,  oral  evidence  is  competent  to  show 
that  it  was  delivered  to  the  party  in  whose  favor  it  was  drawn, 7 
upon  a  condition,  such  that  without  performance  of  the  condition 
he  acquired  no  right  to  enforce  it. 8 

29.  Consideration^ — The  burden  of  proof  of  the  existence  of 
a  consideration  between  the  original  parties,  is  on  plaintiff,  and 
in  case  of  a  conflict  of  evidence,  remains  on  him  to  satisfy  the 
jury  by  preponderance  -of  evidence. 9 

But  the  production  of  negotiable  paper,  whether  made  by  in- 
dividuals or  corporations, 10  is  presumptive  evidence  of  considera- 
tion u  both  in  the  original  making, w  and  in  the  transfers  by  which 
plaintiff  acquired  it.18  This  presumption  may  be  repelled  by 
extrinsic  evidence, u  or  by  the  terms  of  the  note  itself,  as  where  it 
shows  the  value  was  received  from  a  third  person. 15  And  where 
consideration  must  be  proved,  the  words  "value  received"  in  the 

1  2  Pars,  on  Pr.  K  <fcc.  484. 

s  Sawyer  v.  Warner,  15  Barb.  282.  As  to  proof  of  actual  delivery,  see  Kinne  v. 
Ford,  43  N.  Y.  587,  affi'g  52  Barb.  194. 

8  Good  v.  Martin,  95  U.  S.  (5  Otto),  90,  96. 

4  Bank  v.  Kennedy,  17  Wall.  26.  The  person  who  delivered  it  may  state  for 
what  purpose.  Id.  But  the  mere  belief  or  impression  of  a  witness  of  the  transac- 
tion is  not  competent.  Head  v.  Shaver,  9  Ala.  791 ;  Crounse  v.  Fitch,  14  Abb.  Pr. 
346. 

6  See  Bank  of  Monroe  v.  Culver,  2  Hill,  531  ;  Darling  v.  Miller,  54  Barb.  149 ; 
but  compare  Bailey  v.  Wakeman,  2  Den.  220. 

6  Bank  v.  Kennedy  (above). 

I  Or  to  a  third  person.     Vallett  v.  Parker,  6  "Wend.  615  ;  Chapman  v.  Tucker,  38 
"Wise.  43,  s.  c.  20  Am.  R.  1. 

8  Seymour  v.  Cowing,  4  Abb.  Ct.  App.  Dec.  200 ;  and  see  Couch  v.  Meeker,  2 
Conn.  302 ;  Barton  v.   Martin,  62  N.  Y.  570 ;  Bookstaver  v.  Jayne,  60  N.  Y.  146. 
The  evidence,  to  be  admissible,  must  qualify  the  delivery,  as  distinguished  from  the 
terms  of  the  note.     Compare  Erwin  v.  launders,  1  Cow.  249,  and  cases  cited. 

9  Small  v.  Clewley,  62  Me.  155,  s.  c.  16  Am.  R.  410;  Delano  v.  Bartlett,  6  Cush. 
364;  Story  on  Pr.  N.  §  181;  1  Dan.  Neg.  I.  129.     But  see  Sawyer  v.  McLouth,  46 
Barb.  350.     "Whether  the  rule  is  the  same  as  to  a  failure  of  consideration,  see  Burn- 
ham  v.  Allen,  1  Gray,  496. 

10  See  "Willmarth  v.  Crawford,  10  "Wend.  341.  • 

II  Whether  the  words  for  "value  received"  are  in  it,  or  not.     Kinsman  v.  Bird- 
Ball,  2  E.  D.  Smith,  395.     As  to  the  recent  statutes  avoiding  notes  given  for  patent 
rights  unless  so  expressed,  see  note  in  22  American  Reports,  67. 

12  Black  River  Savings  Bank  v.  Edwards,  10  Gray,  387. 

13  Collins  v.  Gilbert,  94  U.  S.  (4  Otto),  753.     From  the  issuing  and  delivery  of 
negotiable  drafts  for  money,  though  illegal,  there  is  a  legal  presumption  that  the 
consideration  was  money.     Oneida  Bank  v.  Ontario  Bank,  21  N.  Y.  490. 

14  See  Dodge  v.  Pond,  9.3  N.  Y.  69. 

15  Tenyck  v.  Vanderpoel,  8  Johns.  120.     To  recover  on  a  note  given  for  no  other 
consideration  than  payment  of  the  debt  of  another,  the  payee  must  prove  the  privity 
or  assent  of  the  debtor.     "Williams  v.  Sims,  22  Ala.  512. 


RULES  APPLICABLE  GENERALLY.  405 

paper,  set  out  in  the  pleading  is  a  sufficient  allegation,  even  as 
against  indorsers ; 1  and  the  consideration  need  not  be  an  equiva- 
lent, even  as  between  the  original  parties. 2  Inadequacy  of  con- 
sideration 3  is  not  a  defense, 4  unless  fraud  be  in  issue,  and  then  it 
may  be  a  relevant  circumstance. 5  A  consideration  consisting  of 
a  prior  indebtedness  on  an  account  stated  or  the  like,  may  be 
proved  by  parol  without  producing  the  document  evidencing  the 
consideration;  but  the  document  is  competent. 6  Evidence  that 
the  paper  was  given  in  consideration  of  the  surrender  of  a  prior 
note  made  by  the  same  party  is  prima  facie  sufficient,  and  raises 
a  legal  presumption  that  differences  as  to  the  validity  of  the 
former  note  were  settled. 7  But  this,  even  if  expressed,  is  not 
conclusive  as  between  the  original  parties,8  and  those  limited  to 
their  rights.  If  a  note  is  expressed  to  carry  interest  from  a  time 
prior  to  its  date,  the  presumption  is  not  that  it  is  usurious,  but 
that  it  was  given  for  an  antecedent  consideration. 9 

In  cases  where  the  existence  of  a  consideration  between  the 
original  parties  is  open  to  inquiry,  the  writing  does  not  exclude 
oral  evidence.  The  purpose  for  which  a  note  was  made  is  admis- 
sible if  entirely  consistent  with  its  terms  and  conditions ; 10  and  a 
witness  who  knows  the  purpose  may  testify  directly  to  the  fact, u 
but  not  whether  it  would  or  would  not  have  been  made  in  a  sup- 
posed case.12  A  witness  having  knowledge  of  the  transaction 
may  be  asked  directly  what  was  the  consideration, — whether  two 
notes  were  part  of  the  same  transaction — and  the  like,  leaving 
details  to  be  called  for  by  cross  examination. 13 

The  declarations  of  a  prior  party14  are  not  generally  admissible 
against  the  right  of  a  subsequent  holder,  except  within  the  rules 
stated  in  Chapter  I,  or  when  part  of  the  res  gestce  of  an  act  prop- 
erly in  evidence, u  or  unless  some  further  connection  between  the 
two  persons  is  shown. 16 

1  Meyer  v.  Hibsher,  47  N.  Y.  265.     Otherwise  at  common  law.     Saxton  v.  John- 
son, 10  Johns.  418;  see  also  Bourne  v.  Ward,  61  Me.  191. 

2  Worth  v.  Case,  42  N.  Y.  862,  affi'g  2  Lans.  264.     If  an  executory  consideration 
is  indorsed  on  the  note,  it  may  be  notice  of  equities  to  transferees,  but  does  not  pre- 
vent the  note  being  admitted  as  a  negotiable  instrument;  and  plaintiff  should  prove 
performance,  if  required  at  the  trial.     Sanders  v.  Bacon,  8  Johns.  485. 

3  As  distinguished  from  usury  pleaded,  and  from  grossly  unconscionable  bargain. 
*  Earl  v.  Peck,  64  N.  Y.  698. 

5  Especially  where  incapacity  or  undue  influence  is  alleged.     Molson  v.  Hawley, 
1  Blatchf.  409. 

6  Leland  v.  Manning,  4  Hun,  7;  Friedman  v.  Johnson,  21  Minn.  12. 

7  Hper  v.  Wade,  57  Geo.  223;  and  see  Davis  v.  Gray,  17  Ohio  St.  330. 

8  McDougall  v.  Cooper,  31  N.  Y.  498. 

9  Ewing  v.  Howard,  7  Wall.  505. 

10  Bell  v.  Shibley,  83  Barb.  610,  and  cases  cited.     Compare  Mathews  v.  Crosby, 
56  N.  H.  21.  . 

11  Osborn  v.  Robbins,  36  N.  Y.  865,  s.  c.  4  Abb.  Pr.  N.  S.  15,  rev'g  37  Barb.  481. 
«  Newell  v.  Doty,  83  N.  Y.  83. 

18  Ayrault  v.  Chamberlain,  33  Barb.  229. 

14  Even  though  he  be  since  deceased.     Kent  v.  Walton,  7  Wend.  256. 

15  See  Snyder  v.  Willey,  83  Mich.  483;  First  Nat.  Bank  v.  McMaingle,  69  Penn. 
St.  156;  Nutter  v.  Stover,  48  Me.  163. 

»  Phillips  v.  Cole,  10  Ad.  &  E.  106 ;  Rose.  N.  P.  384. 


406  ACTIONS   ON  NEGOTIABLE  PAPER. 

30.  Accommodation  paper."] — The  presumption  of  considera- 
tion, even  where  the  paper  is  expressed  to  be  for  value  received, 
does  not  estop  maker,1  drawer,   acceptor,3  or  indorser,8  from 
proving  that  his  act  was  done  for  accommodation ;  but  such  proof 
does  not  alone  (except  as  between  the  original  parties  and  those 
subject  to  their  equities),  throw  the  burden  on  plaintiff  to  give 
further  evidence  of  consideration.4 

31.  Alterations.] — If  any  material  alteration,5  whether  ap- 
parently advantageous  to  the  holder  or  not,6  appears  on  the  face 
of  the  paper,  or  in  the  indorsements  on  which  his  action  depends,7 
he  should  be  prepared  with  at  least  some  evidence  tending  to 
explain  it.     The  question  whether  the  alteration  is  such  that  the 
absence  of  an  explanation   excludes  the  paper,  is  one  for  the 
court.8    If  there  is  nothing  suspicious  about  the  alteration,  it  is 
not  error  to  admit  the  paper  without  explanation.     If  there  is 
anything  suspicious,  the  court  should  require  explanation ;  and  the 
evidence  offered  for  this  purpose, — which  may  include  all  the  cir- 
cumstances of  its  history,  its  nature,  the  appearance  of  the  altera- 
tions, the  possible  or  probable  motives  for  the  alteration  or  against 
it,  and  its  effect  upon  the  parties  respectively, — ought  to  be  sub- 
mitted to  the  jury  with  the  paper  itself.9 


1  Corlies  v.  Howe,  11  Gray,  125. 

2  Clark  v.  Sisson,  22  N.  Y.  312,  affi'g  5  Duer,  468. 

3  Patten  v.  Pearson,  55  Me.  39. 

4  Ellicott  v.  Martin,  6  Md.  509;  1  Dan.  Neg.  In.  129;  Pee  also  2  Abb.  N.  C.  305. 

5  Or  an  immaterial  one  fraudulently  made.     1  Greenl.  Ev.  608,  §  568. 

6  If  the  alteration  was  apparently  disadvantageous  to  the  holder,  this  goes  to  re- 
lieve the  case  from  suspicion  that  it  was  made  after  execution  and  without  consent ; 
see  Bailey  v.  Taylor,  11  Conn.  531 ;  but  even  if  shown  to  have  been  so  made,  does 
not  prevent  the  alteration  from  defeating  the  action.     See  Heins  v.  Cargill.  67  Me. 
554;  Franklin  Ins.  Co.  v.  Courtney,  6  Rep.  712;  Huntington  v.  Finch,  3  Ohio  St. 
445  ;  2  Dan.  Neg.  In.  376.     For  other  cases  on  the  different  views  that  have  pre- 
vailed on  this  question,  see  also  17  Am.  R.  97;  14  Moak's  Eng.  585  ;   16  Id.  585  ;  16 
Alb.  Law.  J.  64,  80 

1  Otherwise  of  words  written  on  the  back,  and  thus  not  essential.  See  Bay  v. 
Schrader,  30  Miss.  326;  Kimball  v.  Lawson,  2  Vt.  138. 

8  Tillou  v.  Clinton,  <fcc.  Ins.  Co.  7  Barb.  564. 

9  Maybee  v.  Sniffen,  2  E.  D.  Smith,  1,  s.  o.  10  N.  T.  Leg'.  Obs.  18;  Artisans 
Bank  v. 'Backus,  31  How.  Pr.  242,  36  N.  Y.  100,  s.  c.  3  Abb.  Pr.  N.  S.  273. 

Four  different  rules  contend  for  control  on  this  vexed  question,  1.  That  an  al- 
teration apparent  on  the  face  of  the  paper  raises  no  presumption  either  way,  but  the 
question  is  for  the  jury.  (Hunt  v.  Gray,  35  N.  J.  L.  227  ;  Hayden  v.  Goodnow,  39 
89  Conn.  164,  and  see  Davis  v.  Jenney,  1  Mete.  221.) 

2.  That  it  raises  a  presumption  against  the  paper,  and  requires,  therefore,  some 
explanation  to  render  the  paper  admissible.     (Rosa  N.  P.  351,  384;  2  Pars,  on  Contr. 
228 ;  and  see  2  Dan.  Neg.  In.  314,  374,  etc. ;  Mills  v.  Barnes,  UN.  H.  395 ;  Low  v. 
Merrill,  Burn.  [Wise.]  185.) 

3.  That  it  raises  such  a  presumption  when  it  is  suspicious,  otherwise  not.     (1 
Whart.  Ev.  601,  £  629  ;  1  Greenl.  604,  §  564 ;  Welch  v.  Coulbord,  3  Houst.  [Del.]  647- 
Compare  Farnsworth  v.  Sharp,  4  Sneed  [Tenn.]  55.) 

4.  That  it  is  presumed,  in  the  absence  of  explanation,  to  have  been  made  before 
delivery,  and,  therefore,  requires  no  explanation  in  the  first  instance.     (White  v. 
Hnss,  32  Ala.  470;  Paramour  v.  Lindsey,  63  Mo.  63.)    The  third  rule,  though  some- 
what vague,  is  the  true  one.     It  is  impossible  to  sustain  the  unqualified  assertion 
that  every  alteration  must  raise  a  presumption  either  way,  or  that  there  can  be  no 


RULES  APPLICABLE  GENERALLY.  407 

An  interlineation  or  addition,  in  a  hand  different  from  the 
other  writing  in  the  body  of  the  note  and  from  the  signature,  is 
presumptively  an  alteration,  within  these  rules.  Otherwise  of  the 
mere  use  of  a  different  ink  for  part  of  the  writing.1 

Alteration,  though  not  appearing  on  inspection,  may  be  shown 
by  extrinsic  evidence ;  and  this  throws  the  same  burden  on  the 
party  offering  the  instrument,  to  explain  the  alteration.2 

32.  JIow  pleaded.'] — If  the  action  is  on  the  instrument  in  its 
original  form,  a  material  alteration  raises  a  question  of  variance  or 
failure  of  proof,  as  well  as  admits  the  objection  that  the  instrument 
has  been  made  void.3     If  the  action  is  on  the  instrument  in  its 
altered  form,  an  answer  admitting  execution,  without  alleging 
the  alteration,  precludes  evidence  of  alteration  ;4  but  under  a  de- 
nial of  execution5  or  a  general  denial,  evidence  that  an  alteration 
was  made  after  delivery  is  admissible.6    Proof  of  the  defendant's 
signature  is  prima  facie  evidence  that  the  whole  body  of  the  note 
written  over  it  is  the  act  of  the  defendant  (subject  to  the  rules  as 
to  suspicious  alterations  above  stated) ;  but  the  burden  of  proof 
remains  on  the  plaintiff  to  show,  on  the  whole  evidence, that  the 
note  declared  on  was  the  note  of  the  defendant.7 

33.  Mode  of  proof  .~\ — Alterations  may  be  proved  by  a  wit- 
ness who  saw  the  instrument  prior  to  alteration,  although  not 
present  when  made ; 8  and  he  may  testify  that  he  has  no  knowl- 
edge  or  recollection   that   the   alteration   existed  when   he   in- 
spected the  instrument ; 9  and,  under  the  rules  already  stated,  ex- 
alteration  that  will  not  raise  a  presumption  against  the  note.    Thus  a  cancellation  of 
the  printed  word  "  bearer"  and  insertion  of  "  order,"  in  the  same  hand  and  ink  as  the 
other  writing,  could  not  ordinarily  exclude  the  paper  for  want  of  explanation.     On  the 
other  hand,  an  increase  of  the  amount,  written  over  an  erasure,  and  exceeding  the 
marginal  figures  would  require  explanation  before  the  case  could  go  to  the  jury. 
Between  such  extremes  there  is  every  variety  of  degree  ;  and  the  only  safe  guide  is 
that  stated  in  the  text.     For  recent  cases,  where  the  particular  kinds  of  alteration  are 
considered,  see,  as  to  altering  Date,  Low  v.  Merrill,  Burn.  (Wise.)  185 ;  Wood  v. 
Steele,  6  Wall.  80;  Time  to  run,  Davis  v.  Jenney,  1  Mete.  221 ;  Place  of  payment, 
"White  v.  Has?,  32  Ala.  470 ;  Corcoran  v.  Dall,  32  Cal.  82 ;  Meikel  v.  State  Havings 
Bank,  36  Ind.  355;  Diminishing  the  amount,  Heins  v.  Cargill,  67  Me.  554;  Adding 
interest  clause,  Iron  Mountain  Bark  v.  Murd<>ck,  62  Mo.  70;  Precluding  interest  ex- 
cept after  maturity,  Franklin  Ins.  Co.  v.  Courtney  (Fnd.  S.  Ct.  1878),  6  Reporter,  712; 
compare  Paramour  v.  Lindsey,  63  Mo.  63;  Alteration  in  clause  "without  defalcation 
or  discount,"  Hunt  v.  Gray,  35  N.  J.  L.  227;  Inserting  charge  on  separate  estate, 
Taddiken  v.  Cantrt-11,  69  N.  Y.  697;  Erasure  from  priuted  form,  Corcoran  v.  Dall, 
32  Cal.  82  ;  Paramour  v.  Lindsey,  63  Mo.  63. 

For  the  rule  as  to  sealed  instruments,  compare  Little  v.  Herndon,  10  Wall.  31,  and 
cases  cited ;  Smith  v.  U.  S.  2  Id.  231,  and  see  1  Id.  282,  and  Ch.  XLVIIl,  paragraph  7. 
1  Wilson  v.  Harris,  85  Iowa,  507. 
s  Ilerrick  v.  Malin,  22  Wend.  388;  Jackson  v.  Osborn,  2  Id.  565. 

3  Contra,  Hirschman  v.  Budd,  L.  R.  8  Ex.  171,  8.  c.  6  Moats  Eng.  361. 

4  Smedbcrgh  v.  Whittlesey,  3  Sandf.  Ch.  320. 
8  Rose.  N.  P.  384. 

6  Boomer  v.  Koon,  6  Hun,  645;  Lincoln  v.  Lincoln,  12  Grav,  47. 

7  Simpson  v.  Davis,  119  Mass.  269,  8.  c.  20  Am.  R.  324;  Willett  v.  Shepard,  34 
Mich.  106. 

8  Ansley  v.  Peterson,  30  Wise.  653. 

9  Abel  v.  Fitch,  20  Conn.  90,  97. 


408  ACTIONS  ON  NEGOTIABLE  PAPER. 

perts  and  those  who  are  acquainted  with  the  handwriting,  may  be 
examined.1  Original  memoranda  or  entries  of  the  transaction  are 
competent  also,  under  rules  already  stated.8 

The  fact  that  the  defendant  was  the  maker  or  indorser  of 
other  paper  having  a  similar  clause  to  the  one  alleged  to  be  an  al- 
teration, is  not  admissible  in  evidence,  for  the  purpose  of  raising 
an  inference  that  the  clause  was  not  an  alteration.8  The  fact 
that  the  party  to  whom  the  alteration  is  imputed,  was  in  embar- 
rassed circumstances,  when  he  negotiated  the  paper,  is  not  com- 
petent as  tending  to  show  that  it  was  altered  by  him  so  as  to  in- 
crease its  amount  before  negotiation.4  Evidence  that  defendant 
has  paid  interest  on  the  altered  paper,  is  relevant  to  show  con- 
sent.9 Evidence  that  plaintiff  demanded  payment,  is  not  neces- 
sarily a  ratification  of  an  unauthorized  alteration  made  by  a  third 
person.6  A  general  consent  or  authority  to  add  or  alter  may  be 
proved ;  and  it  is  not  material  that  the  maker  was  not  informed 
what  addition  was  made.7 

34.  Blanks.'} — Evidence  that  a  party  to  the  instrument  in- 
trusted it  to  another,  for  use  as  such,  with  blanks  not  filled,  is 
prima  facie  evidence  of  authority  to  complete  it  by  filling  them, 
but  not  to  vary  or  alter  its  material  terms  by  erasing  what  was 
written  or  printed  as  a  part  thereof,  nor  to  pervert  its  scope  or 
meaning  by  filling  the  blanks  with  stipulations  repugnant  to  what 
was  plainly  and  clearly  expressed  in  the  instrument;8  and  this 
authority  enures  to  successive  holders  who  take  it  with  the  blank 
unfilled ; 9  and  evidence  of  the  blank  and  of  the  filling  of  it,  is 
admissible  under  an  allegation  describing  simply  the  completed 
paper.10 

35.  Marks  of  cancellation^ — Lines   cancelling  the  whole  in- 
strument,11 or  the  stamp  "  Paid,"  w  raise  a  presumption  of  dis- 
charge ;  but  this  may  be  rebutted.18    The  presumption  of  discharge 


I  Paragraphs  8  to  17.     If  reliance  is  put  on  the  fact  that  a  part  is  in  different  ink 
from  the  rest,  interrogate  a  witness  as  to  the  fact,  so  as  to  have  it  on  the  record. 
See  Hardy  v.  Norton,  66  Barb.  528. 

8  Kennedy  v.  Crandell,  3  Lans.  1  ;  and  p.  322  of  this  vol. 

8  Iron  Mountain  Bank  v.  Murdock,  62  Mo.  70 ;  Paramour  v.  Lindsey,  63  Id.  63. 
But  he  may  be  asked  whether  he  ever  made  any  such  note  whatever.  First  Nat.  Bank 
of  Pittsburgh  v.  Heaton,  6  Supra.  Ct.  (T.  &  C.)  37;  Jourden  v.  Boyce,  33  Mich.  302. 

4  Agawam  Bank  v.  Sears,  4  Gray,  95. 

•  Rose.  N.  P.  383. 

6  Laugenberger  v.  Kroeger,  48  Cal.  147,  s.  c.  17  Am.  R.  418. 

7  Taddiken  v.  Cantrell,  69  N.  Y.  597.     Compare  Davidson  v.  Lanier,  4  Wall.  447. 

8  Angle  v.  North-western  Mutual  Life  Insurance  Co.  92  U.  S.  (2  Otto),  330;  Ab- 
bott v.  Rose,  62  Me.  194,  s.  c.  16  Am.  R.  427;  lledlich  v.  Doll,  54  N.  Y.  234. 

9  Page  v.  Morrel,  3  Abb.  Ct.  App.  Dec.  433 ;  and  see  Spitler  T.  James,  82  Ind.  202, 
8.  c.  1  Am.  R.  334,  and  note ;  Michigan  Bank  v.  Eldred,  9  Wall.  544 ;  Davidson  v. 
Lanier,  4  Wall.  447. 

10  Rose.  N.  P.  852. 

II  Pitcher  v.  Patrick,  5  Ala.  (1  Stew.  <fe  P.)  478. 

18  See  Turner  v.  Bank  of  Fox  Lake,  4  Abb.  Ct.  App.  Dec.  434. 

11  Same  cases. 


RULES  APPLICABLE  GENERALLY.  409 

arising  from  actual  cancellation  is  not  necessarily  rebutted  by 
evidence  that  the  discharge  was  not  by  payment  or  set-off.1 

36.  General  rule  as  to  oral  evidence  to  vary.'] — Parol    evi- 
dence of  an  oral  agreement  alleged  to  have  been  made  at  the  tune 
of  the  drawing,  making  or  indorsing  of  a  bill  or  note,  cannot  be 
permitted 2  to  vary,  qualify,  or  contradict,  or  to  add  to  or  subtract 
from  the  absolute  terms  of  the  written  contract,  there  being  no 
fraud,  accident  or  mistake.3    If  a  memorandum  appears  upon  the 
paper  in  such  a  position  as  not  to  be  authenticated  by  the  signa- 
ture, either  party  may  show  parol  facts  as  to  its  being  affixed, 
and  if  it  be  shown  that  it  was  affixed  before  delivery,  as  a  part  of 
the  contract,  it  is  part  of  the  note  within  the  above  rule.4 

37.  Date.'] — If  no  date  is  expressed,  the  date  of  delivery  may 
be  proved  by  parol.     A  date  expressed 5  is  prima  facie  evidence 
of  the  time  01  delivery ; 6  unless  the  admissibility  of  the  instru- 
ment depends  on  its  date.7    If  the  date  is  referred  to  in  the  body 
of  the  contract,  as  fixing  the  time  of  payment,  it  cannot  be  va- 
ried by  parol,8  unless  fraud,  accident  or  mistake  is  shown;9  and 
even  then  evidence  of  error  may  not  be  competent  for  the  pur- 
pose of  showing,  as  against  a  bonafide  holder,  that  the  paper  was 
illegal,  as  made  on  Sunday.10 

38.  Time  of  'payment.~\ — If  the  time  of  payment  is  expressed,11 
or  if  not,  and  the  note  is  therefore  payable  immediately,12  parol 
evidence  that  another  time  of  payment  or  presentment 13  was  agreed 
upon  between  the  parties  at  or  before  delivery,  is  not  competent. 
The  time  and  mode  cannot  be  varied  by  parol.     Hence  if  pay- 
ment by  installments  is  specified,  a  parol  agreement  that  the  whole 


1  Gray  v.  Gray,  2  Lans.  173,  but  see  47  N.  Y.  552. 

2  Unless  performed  and  accepted.     Bank  of  Lyons  v.  Demmon,  Hill  <fe  D.  Supp. 
398. 

3  Forsythe  v.  Kimball,  91  U.  S.  (1  Otto),  291,  294.     Compare  1  Greenl.  Ev.  13  ed. 
822,  note.     But  a  contemporaneous  memorandum  between  the  same  parties,  and  not 
merely  collateral  (Webb  v.   Spicer,  13  Q.  B.  894,  affi'g  S  H.  L.  C.  510);  if  shown 
to  be  founded  on  good  consideration  (McManus  v.  Bark,  L.  R.  5  Ex.  65);  is  ad- 
missible for  that  purpose,  whether  on  the  same  or  a  separate  paper  (Leeds  v.  Lan- 
cashire, 2  Camp.  205;  Bowerbank  v.  Monteiro,  4  Taunt.  844);  and  though  not  al- 
leged to  be  in  writing  (Young  v.  Austen,  L.  R.  4  C.  P.  553  ;  Corkling  v.  Massey, 
L.  R.  8  C.  P.  395);  but  the  allegation  will  not  be  proved  unless  an  agreement  in 
writing  is  given  in  evidence  in  support  of  it  at  the  trial.     Young  v.  Austen,  supra  ; 
Abrey  v.  Crux,  L.  R.  5  C.  P.  87 ;  Rose.  N.  P.  389. 

4  Heywood  v.  Perrin,  10  Pick,  228. 

6  Even  if  only  on  the  stamp,  for  its  cancellation.     Holbrook  v.  N.  J.  Zino  Co.  57 
N.  Y.  616. 

6  1  Pars,  on  Pr.  N.  Ac.  41. 

1  Smith  v.  Shoemaker,  17  Wall.  637. 

8  Joseph  v.   Bigelow,  4  Cush.  82,  84.     SHAW,  Ch.  J.    This  case,  so  far  as  it  ex- 
cludes the  evidence  in  connection  with  proof  of  mistake  or  fraud,  goes  too  far. 

9  Breck  v.  Cole,  4  Samlf.  79 ;  Germania  Bank  v.  Distler,  4  liun,  638. 

10  Knox  v.  Clifford,  88  Wise.  651,  s.  c.  20  Am.  R.  28. 

11  Walker  v.  Clay,  21  Ala.  797. 

11  Thompson  v.  Ketcham,  8  Johns.  190. 

18  Blakemore  Y.  Wood,  3  Sneed  (Tenn.)  470. 


410  ACTIONS  ON  NEGOTIABLE  PAPER. 

should  be  due,  on  default  in  one,  cannot  be  proved.1  But  an  error 
in  date  for  payment,  obvious  on  the  face  of  the  paper,  may  be 
corrected  by  parol.8  A  variance  between  the  allegation  and  proof 
as  to  the  time  when  payable,  or  the  length  of  time  to  run,  even  if 
substantial,  should  be  disregarded  if  defendant  is  not  misled  to 
his  prejudice;3  and  amendment  should  be  allowed,  if  necessary, 
to  identify  the  instrument.  If  the  law  allows  grace,  evidence  of 
a  usage  to  the  contrary  is  not  competent.4 

39.  Amount.] — The  sum  stated  in  the  body  prima  facie  gov- 
erns ; 5  and  if  complete  and  unambiguous,  cannot  be  varied  by 
parol,6  even  if  the  marginal  figures  are  diiferent.7    The  figures 
in  the  margin  serve  to  aid  and  explain  apparent  defects  in  state- 
ments of  the  amount  in  the  body,  but  if  there  is  no  statement  in 
the  body,  marginal  figures  do  not  supply  the  blank,8  but  only 
limit  the  holder  in  filling  it.9    Mistake  in  the  amount  written, 
when  available  as  a  defense,  must  be  pleaded.10 

40.  Medium.'] — For  the  purpose  of  showing  the  medium  of 
payment,  evidence  of  the  place  where  the  contract  was  made,  and 
subject  to  the  law  of  which  it  was  to  be  performed,  is  competent ; 
and  if  there  are  several  currencies,  oral  evidence  of  which  wras 
intended  is  competent.11    Otherwise,  an  unambiguous  designation 
cannot  be  qualified  by  oral  evidence  that  a  different  or  depreci- 
ated medium  was  intended,18  unless  fraud  or  mistake  is  shown. 
Proof  of  the  foreign  law  is  not  essential ;  but  the  value,  unless 
established  under  the  act  of  Congress,13  may  be  shown,  like  the 

1  Brown  v.  Wiley,  20  How.  U.  S.  442.     But  the  writing  does  not  exclude  oral 
evidence  that  it  was  falsely  read  over  at  the  time  of  signing,  and  that  the  true  agree- 
ment Was  diiferent.     Farmers'  &  Manufacturers'  Bank  v.  Whinfield,  24  Wend.  419. 
If  there  is  an  ambiguous  character  in  the  instrument,  evidence  of  how  it  was  read  to 
the  signer  at  the  time  of  signing  is  competent  (subject,  however,  to  the  rules  as  to 
bonn  fide  holders  stated  below) ;  for  in  such  a  case  the  reading  of  the  note  to  the 
maker  is  part  of  the  res  gestce.     Arthur  v.  Roberts,  60  Barb.  680. 

2  Miller  v.  Cray  ton,  3  Supin.  Ct.  (T.  &  C.)  360;  and  see  13  Conn.  282,  285,  n. 

3  Chapman  •".  Carolin,  3  Bosw.  456 ;    Page  v.  Bank  of  Alexandria,  7  Wheat.  35 ; 
Sebree  v.  Dorr,  9  Wheat.  558.     Contra,  at  common  law,  Trowbridge  v.  Didier,  4 
Duer,  448. 

4  Woodruff  v.  Merchants'  Bank,  25  Wend.  673;  and  see  16  N.  Y.  395.     But  com- 
pare  Renner  v.  Bank  of  Columbia,  9  Wheat.  581 ;   Bank  of  Washington  v.  Triplett, 
1  Pet  32. 

6  Norwich  Bank  v.  Hyde,  13  Conn.  282. 

6  Glazoway  v.  Moore,  Harper  (S.  C.)  401  ;  Hall  v.  Mott,  Brayton  (Vt.)  79. 

7  Rose.  N.  P.  353,  citing  Saunderson  v.  Piper,  5  N.  C.  425 ;  Wolfolk  v.  Bank,  <tc. 
10  Bush  (Ky.),  504. 

8  Norwich  Bank  v.  Hyde  (above). 

9  Boyd  v.  Brotherson,  10  Wend.  93. 

10  See  Seeley  v.  Engell,  13  N.  Y.  542. 

11  Thus  a  contract  made  in  the  Confederate  States,  during  the  war  of  the  rebellion, 
to  pay  "  dollars,"  may  be  shown  by  parol  evidence  to  mean  Confederate  currency. 
Thorington  v.  Smith,  8  Wall.  1 ;   Donley  v.  Tindall,  32  Tex.  43,  8.  c.  5  Am.  R.  234. 
But  without  such  evidence  the  legal  presumption  is  that  lawful  money  of  the  United 
States  was  meant.     Confederate  Note  Case,  19  Wall.  548.     As  to  what  kind  of  evi- 
dence of  intention  would  suffice,  see  id.  p.  559. 

13  Baugh  v.  Ramsey,  4  T.  B.  Monr.  156 ;  Bradley  v.  Anderson,  5  Vt.  152. 
13  U.  S.  R.  S.  §§  3564,  3565.     Compare  McButt  v.  Hoge,  2  Hilt.  81 ;   Stranaghan 
V.  Youmans,  65  Barb.  392. 


RULES  APPLICABLE  GENERALLY.  411 

value  of  chattels  in  a  distant  market,  by  the  opinions  of  wit- 
nesses.1 The  court  is  not  bound  to  take  judicial  notice  of  the 
value  even  of  Canadian  currency,2  unless  fixed  by  or  under  the  act 
of  Congress.8 

41.  Interest.'] — If  the  instrument  fixes  the  time  for  paying 
interest, — either  by  specifying  it,  or  by  naming  no  time,  and  thus 
in  legal  effect  making  it  payable  only  at  maturity, — oral  evidence 
that  it  was  to  be  paid  previously  or  periodically  is  not  compe- 
tent,4 unless  fraud  or  mistake  is  shown. 

The  court  is  not  bound  to  take  judicial  notice  of  the  rate  of 
interest,  even  in  a  neighboring  country,5  but  may  do  so.  The 
rate  in  another  State  or  nation  is  not  presumed  to  have  the  same 
limits  as  here ;  but  the  foreign  statute  should  be  proved  by  the 
party  relying  on  it.8 

42.  Place  of  payment^ — In  the  absence  of  anything  on  the 
paper  to  indicate  or  restrict  the  place  of  payment,  the  presump- 
tion of  law  is  that  it  is  payable  where  dated,  if  dated  at  anyplace; 
otherwise,  where  made  or  delivered.    The  designation  on  the  note 
cannot  be  varied  by  a  contemporaneous  parol  agreement  fixing  a 
different  place  ;  nor  by  evidence  of  a  different  residence  of  the 
parties.7    A  variance  in  designating  the  particular  place  of  pay- 
ment specified  in  the  body  of  the  note  is  to  be  disregarded,  unless 
defendant  has  been  misled.8    Parol  evidence  of  an  agreement 
contemporaneous  with  the  making  of  negotiable  paper,  that  it 
should  be  payable  at  a  specified  place  not  expressed  in  it,  is  not 
competent.9 

1  Kermott  v.  Ayer,  11  Mich.  181 ;  Comstock  v.  Smith,  20  Mich.  338;  pages  307- 
311  of  this  vol. ;  Schmidt  v.  Herforth,  5  Robt.  124. 
8  Kermott  v.  Aver  (above). 

3  McButt  v.  Ho'ge,  2  Hilt.  81 ;  U.  S.  R.  S.  §§  S564,  3565. 

4  Koehring  v.  Muemminghoff,  61  Mo.  403,  s.  c.  21  Am.  R.  402.     As  to  varying 
the  rate  of  interest  by  parol,  compare  Rohan  v.  llanson',  11  Cush.  44;    Shoop  v. 
Clark,  4  Abb.  Ct.  App.  Dec.  235. 

6  Kermott  v.  Ayer,  11  Mich.  181. 

6  Kermolt  v.  Ayer,  11  Mich.  181.     As  to  the  mode,  see  p.  22  of  this  vol. 

7  2  Pars,  on  I'r.'N.  &c.  833,  338.     Prof.  Parson's  six  rules  (2  Pars,  on  Pr.  N.  <tc. 
324)  as  to  the  law  of  place  applicable  to  negotiable  paper  are : 

I.  If  a  bill  or  note  be  payable  in  a  particular  place,  it  is  to  be  treated  as  if  made 
there,  without  reference  to  the  place  at  which  it  is  written,  or  signed,  or  dated. 

II.  If  by  the  express  terms  of  a  note  or  bill,  or  by  legal  construction  of  its  terms, 
it  is  payable  especially  in  any  place,  it  is  presumed  that  both  parties  know  this 
fact. 

III.  It  is  presumed  that  both  parties  know  the  law  of  the  place  in  which  the  paper 
is  payable ;  and 

IV.  That  both  parties  intend  that  this  law  shall  govern  the  contract. 

V.  While  this  law  governs  the  contract  as  to  all  the  rights  and  obligations  rest- 
ing upon  it,  the  law  of  the  place  in  which  such  a  note  or  bill  is  sued  (the  lex  fori) 
governs  the  remedies  upon  the  note  or  bill. 

VI.  The  lex  loci  contractus  depends  not  upon  the  place  where  the  note  or  bill  is 
made,  drawn  or  dated,  but  upon  the  place  where  it  is  delivered  from  drawer  to 
drawee,  from  promisor  to  pavee,  from  indorser  to  indorsee.     See  6  Abb.  New  Cas.  76. 

8  Rose.  N.  P.  852;  Comstock  v.  Savage,  27  Conn.  184. 

9  Specht  v.  Howard,  16  Wall.  565.     Contra,  Brent  v.  Bank  of  Metropolis,  1  Pet. 
89,  affi'g  2  Cranch  C.  Ct  530. 


412  ACTIONS  ON  NEGOTIABLE  PAPER. 

43.  Defeasance.'] — Oral  evidence  that  defendant  delivered  the 
instrument  to  plaintiff,  on  a  present  condition  which  he  refused 
to  perform,  as  distinguished  from  a  future  contingency,  or  the 
future  performance  of  a  condition,  is  competent ; *  and  BO  it  may 
be  shown  that  he  made  it  as  part  of  an  entire  verbal  contract,  as, 
for  example,  that  it  was  given  for  the  price  of  property  sold,  on  a 
contemporaneous  agreement  that  if  the  property  fell  below  a 
given  measurement,  an  abatement  from  the  note  should  be  made ; 
and  that,  on  measurement,  it  did  so  fall  short ; 2  or  that  it  was 
made  and  delivered  as  security  only.3  And  a  written  agreement  be- 
tween the  same  parties,  contemporaneous  with  the  instrument, 
may  be  proved  as  part  of  the  res  gestce,  though  it  vary  the  legal 
effect  of  the  instrument.4    But,  effectual  delivery  or  indorsement 5 
not  being  negatived,  parol  evidence  of  an  agreement,  contem- 
poraneous with  the  instrument,  that  it  should  be  void  in  a  certain 
event,  is  inadmissible.0    When,  however,  such  an  agreement  has 
been  executed  by  the  return  of  the  consideration  to  the  payee,  and 
his  acceptance  thereof,  the  evidence  is  competent  as  introductory 
to  the  latter  facts.7 

44.  Particular  fund /   Agreement  to  set-off — to  renew."] — 
Upon  the  same  principle  oral  evidence  is  inadmissible  to  show 
that  the  paper  was  to  be  paid  out  of  a  particular  fund  only,8  or 
only  in  the  contingency  of  a  fund  being  realized  by  the  maker  9 
or  the  payee  ; 10  or  that  before  payment  could  be  required  certain 
collateral  securities  must  be  applied.11    Nor  is  it  competent  to 
show  a  contemporaneous  oral  agreement,  that  a  cross  demand 
should  be  applied  in  reduction  of  the  note,13  as  distinguished  from 


1  Shepard  v.  Hall,  1  Conn.  497 ;  Calhoun  v.  Davis,  2  Jnd.  532.  Thus  it  may  be 
proved  that  a  note  was  delivered  not  as  such,  but  as  a  mere  memorandum  of  a  cross 
note  loaned  to  the  maker  (Seymour  v.  Cowing,  4  Abb.  Ct.  -A pp.  Dec.  200,  206);  but 
not  that  it  was  given  ft.r  anticipated  services,  on  an  agreement  that  it  should  not  be  pay- 
able if  the  services  were  not  rendered;  Dale  v.  Pope,  4  Litt.  166;  West  v.  Kelly.  19 
Ala.  353  ;  or  for  the  price  of  goods  to  be  returned  if  not  satisfactory.  Allen  v.  Fur- 
bish, 4  Gray,  504.  (Contra,  Folger  v.  Donsman,  37  Wise.  619.)  Nor  even  that  it  was 
given  for  a  disputed  demand  on  an  agreement  to  surrender  it,  in  case  a  receipt  could 
not  be  found;  Brown  v.  Hull,  1  Den.  400;  or  for  a  release,  by  the  payee,  of  his  in- 
terest in  an  estate,  with  an  agreement  that,  if  the  interests  of  the  other  heirs  could 
not  be  obtained,  both  the  note  and  release  should  be  void.  Ely  v.  Kilborn,  5  Den. 
514 

*  Carter  v.  Hamilton,  Seld.  Notes,  No.  6,  80,  rev'g  11  Barb.  147 ;    Lewis  v.  Gray, 
1   Mass.  297,  1  Greenl.  Ev.  §  284a,  and  cases  cited.     Contra,  Miller  v.  White,  7 
Blackf.  491. 

8  Agawam  Bank  v.  Strever,  18  N.  Y.  502  ;  Moses  v.  Murgatroid,  1  Johns.  Ch.  119. 
Contra,  Walker  v.  Crawford,  f.6  111.  444,  s.  c.  8  Am.  R.  701. 
4  Rogers  v.  Broad  n  ax,  27  Tex.  238. 

*  Skinner  v.  Church,  36  Iowa,  91. 

6  Payne  v.  Ladue,  1  Hill,  116. 

7  Bank  of  Lyons  v.  Demmon,  Hill  &  D.  Supp.  398,  and  cases  cited. 

8  Gridley  v/Dole,  4  N.  Y.  486 ;  Adams  v.  Wilson,  12  Mete.  138. 

9  Underwood  v  Simmons,  1 2  Mete.  276. 

10  Currier  v.  Hale,  8  Allen,  47.     As  to  the  rule  when  the  note  refers  to  the  fond, 
see  Sears  v.  Wright,  24  Me.  278. 

11  Abrey  v.  Crux,  L.  R.  5  C.  P.  37. 

18  Eaves  v.  Henderson,  17  Wend.  190;  St.  Louis  Ins.  Co.  v.  Homer,  9  Mete.  39. 


RULES  APPLICABLE  GENERALLY.  413 

a  reduction  by  a  failure  of  consideration;1  nor  that  the  paper 
should  be  renewed,  in  whole 2  or  in  part,8  at  maturity. 

45.  Subsequent  modification.'] — A  subsequent  modification  of 
the  terms,  founded  on  sufficient  consideration,  may  be  proved,  as 
between  the  parties  bound  thereby,  if  alleged  in  pleading,  other- 
wise not.4    If  in  writing,  parol  evidence  of  qualifications  of  it  is 
not  competent.5 

46.  Indorsement.'] — The  mode  of  proving  indorsement  is  the 
same  as  that  of  other  signatures.     The  use  of  initials  or  other 
writing  or  characters,   may  be  shown  by  parol  to  have  been 
made  as  an  indorsement.6    Indorsement  in  the  hand  of  the  maker 
maybe  sustained  by  parol  authority  from  the  payee,7  or  by  recog- 
nition or  holding  out.8    Evidence  that  a  lost  note  was  acquired 
by  purchase  or  in  payment  for  property,  raises  no  presumption 
tnat  it  was  indorsed  by  the  transterrer.9    There  is  a  legal  but  not 
conclusive  presumption  that  an  undated  indorsement  was  made 
before  the  paper  became  dne ; 10  which  is  allowed  for  the  sake  of 
the  negotiable  character  of  paper ;  but  if  the  time  is  material  to 
plaintiff,  in  any  other  respect  than  this,  the  burden  of  proof  is  on 
him  to  show  the  time.11     The  presumption  may  be  rebutted  by 
any  competent  evidence  that  the  paper  remained  the  property  of 
the  payee  after  its  maturity ; 12  but  the  declarations  and  admissions 
of  the  payee,  indorser,  or  other  holder,  are  not  competent  for  this 
purpose  against  the  subsequent  holder,13  unless  part  of  the  res 
gestce  of  an  act  properly  in  evidence.     Even  where  it  appears  that 
the  indorsement  was  for  accommodation,  the  transferee  may  rely 
on  the  prima facie  presumption  that  it  was  made  before  negotia- 
tion to  him.14 

A  valuable  consideration  for  an  indorsement  is  presumed ; 
and  it  is  incumbent  upon  the  other  party  to  show  the  real  consid- 
eration, if  inadequate.15  If  the  indorsement  is  relied  on  merely 
as  a  transfer  of  title,  evidence  that  there  was  no  consideration  is 
not,  by  itself,  relevant.16 


I  Smith  v.  Carter,  25  "Wise.  283. 

8  Burge  v.  Disliman,  5  Blackf.  272;  Ockington  v.  Law,  66  Me.  651;  Anspach  v. 
Bast,  52  Penn.  St.  356. 

3  Barton  v.  Wilkins,  1  Miss.  75 ;  Dawson  v.  Bank  of  111.  5  111.  56.     But  an  agree- 
ment to  renew,  indorsed,  though  unsigned,  may  be  valid.    Flynn  v.  Mudd,  27  111.  323. 

4  Newell  v.  Salmons,  22  Barb.  647. 
B  Alston  v.  Wingfield,  53  Geo.  18. 

6  Merchants'  Bank  v.  Spicer,  6  Wend.  443 ;  Brown  v.  Butchers,  <tc.  Bank,  6  Hill, 
443. 

'T  Turnbull  v.  Trout,  1  Hall.. 336. 

8  Weed  v.  Carpenter,  10  We'nd.  403. 

9  Woods  T.  Gassett,  1 1  N.  H.  442. 

10  Rose.  N.  P.  381 ;  2  Pars,  on  Pr.  N.  <fec.  10. 

II  Pars,  on  Pr.  N.  <fcc.  10;  Solomon  v.  Holt,  8  E.  D.  Smith,  139. 
"Id. 

13  Page  12  of  this  vol.     Contra,  2  Pars,  on  Pr.  N.  <frc.  10. 

14  See  Michigan  Bank  v.  Eldred,  9  Wall,  544,  and  cases  cited. 

15  Riddle  v.  Mandevillc,  5  Cranch,  322. 

16  See  Chapter  I.     City  Bank  of  N.  II.  v.  Perkins,  29  N.  Y.  554,  affi'g  4  Bosw.  420. 


414  ACTIONS  ON  NEGOTIABLE  PAPER. 

47.  Oral  evidence  to  vary  an  indorsement.'] — The  law  recog- 
nizes five  principal  objects  for  which  indorsement  may  be  made, 
which  are  distinct  from,  and  often  inconsistent  with,  each  other. 
These  objects  (the  first  two  of  which  are  often  conjoined  in  one 
indorsement)  are :  1.  To  show  that  the  indorser  transfers  the  legal 
title ;  2.  To  show  that  he  acknowledges  his  liability,  in  case  of 
dishonor  and  notice,  according  to  the  law  merchant ;  3.  To  show 
that  one  who  may  have  not  nad  nor  transferred  title,  lends  his 
credit  to  the  paper  on  the  like  condition ;  4.  To  show  that  the  in- 
dorser constitutes  the  transferee  his  agent  for  collection ;  5.  To 
show  payment  received.  In  the  absence  of  extrinsic  evidence, 
there  is  a  legal  presumption  that  an  indorsement  was  in- 
tended for  the  first  two  purposes  and  those  only.  He  who 
relies  on  either  purpose  alone  or  on  either  of  the  other 
two,  to  characterize  the  act,  must  show  that  such  was  the 
object ;  and  the  question  whether  oral  evidence  is  competent 
for  this  purpose  is  much  contested.  Two  very  different  rules 
are  invoked  to  exclude  such  evidence ; — one  that  it  is  oral  evi- 
dence to  vary  a  writing, — the  other  that  subsequent  transferees 
in  good  faith,  &c.,  have  a  right  to  rely  on  the  legal  presump- 
tions of  intent  to  transfer  and  become  liable.  The  better  opinion 
is  that  the  rule  against  oral  evidence  to  vary  a  writing,  does  not 
exclude  such  evidence  for  the  purpose  of  showing  what  the  ob- 
ject and  consequent  legal  character  of  the  contract  was ;  *  but 
when  its  legal  character  has  been  ascertained,  evidence  of  a  con- 
temporaneous oral  agreement  is  not  competent  to  vary  the  legal 
consequences  or  measure  of  its  effect.  Yet  the  rule  protecting 
transferees  in  good  faith,  &c.,  does  exclude  all  extrinsic  evidence, 
whether  oral  or  written,  when  offered  to  deprive  them  of  the 
effect  of  the  legal  presumptions  above  stated. 

Hence,  except  as  against  a  transferee  in  good  faith,  &c.,  oral 
evidence  is  admissible  to  show  that  the  object  was  not  to  assume 
the  liability  of  an  indorser,  but  only  to  transfer  title,  on  a  sale  of 
the  note,2  or  upon  a  special  trust,  such  as  to  enable  the  indorsee 
to  collect  it  as  agent  for  the  indorser,3  or  to  transfer  it  in  payment 
of  a  debt,4  or  to  show,  as  between  successive  indorsers,  that  they 
were  sureties,  and  what  was  their  relative  liability  to  each  other,5 


1  The  contract  between  indorser  and  indorsee  does  not  consist  exclusively  of  the 
writing  popularly  called  an  indorsement.  The  contract  consists  partly  of  the  writ- 
ten  indorsement,  partly  of  the  delivery  of  the  bill  to  the  indorsee,  and  may  also  con- 
sist partly  of  the  mutual  understanding  and  intention  with  which  the  delivery  was 
made  by  the  indorser  and  received  by  the  indorsee.  That  intention  may  be  col- 
lected from  the  words  of  the  parties  to  the  contract),  either  spoken  or  written,  from 
the  usage  of  the  place,  or  of  the  trade  from  the  course  of  dealing  between  the  parties 
or  from  their  relative  situation.  Bruce  v.  Wright,  5  Supm.  Ct.  (T.  &  C.)  81 ;  Castrique 
v.  Buttigieg,  10  Moore  P.  C.  94,  and  cases  cited ;  Byles  on  B.  147 ;  Ro^s  v.  Espy,  66 
Penn.  St.  481,  s.  c  6  Am.  R.  394,  and  cases  cited;  Key  v.  Simpson,  22  How.  U.  S. 
841.  Contra,  1  Dan.  on  Neg.  Inst.  632. 

*  Bruce  v.  "Wright  (above);  or  as  agent,  Elwell  v.  Dodge,  33  Barb.  386. 
'  Sweeny  v.  Easter,  1  Wall.  166. 

*  Davis  v.  Brown,  94  U.  S.  (4  Otto),  423. 

'  Phillips  v.  Preston,  6  How.  U.  S.  278,  and  s£e  p.  257  of  this  vol. 


RULES  APPLICABLE  GENERALLY.  415 

or  whether  the  words  "  without  recourse  "  qualify  the  preceding 
or  following  name,1  or  to  show  that  the  indorsement  was  made 
only  to  be  used  as  evidence  of  payment  of  the  instrument.2 

But  even  between  the  immediate  parties  to  the  indorsement, 
parol  evidence  is  not  admissible  to  show  a  contemporaneous  agree- 
ment that  in  consideration  of  the  indorser's  omitting  to  qualify 
his  indorsement  with  the  words  "  without  recourse,"  the  plaintiff 
would  hold  him  harmless  from  all  liability,3  nor  that  the  indorser 
would  be  liable  without  demand  or  notice.4  The  rule  that  to  this 
extent  an  indorsement  cannot  be  varied  by  parol,  is  a  rule  of  evi- 
dence, and  does  not  go  to  the  validity  of  the  contract.  Hence  the 
law  of  the  forum  applies.5 

To  establish  joint  liability  of  consecutive  indorsers,  there 
must  be  independent  proof  of  contemporaneous  execution,6  unless, 
perhaps,  where  they  are  the  partners  in  the  firm  to  whose  order 
the  paper  was  payable.7 

The  qualifying  agreement  should  be  pleaded;8  it  may,  how- 
ever, be  available  under  a  denial  of  indorsing.9 

48.  Indorsement  as  a  transfer  of  title. ~\ — The  object  of  the 
statute 10  is  that  before  an  indorsee  can  recover,  in  his  own  name, 
the  contents  of  an  instrument  payable  to  order,  he  shall  show 
that  he  has  acquired  a  property  in  it,  by  a  transfer  from  those 
who  were  the  original  payees.11  The  statute  is  satisfied  by  an  in- 
dorsement by  the  real  payees ;  and  parol  evidence  is  competent  to 
show  that  an  indorsement  which,  on  its  face  does  not  appear  to 
represent  the  payees,  legally  does  so.12 

The  fact  that  two  persons,  not  partners,  are  joint  payees  or 
indorsees,  is  no  evidence  of  authority  in  one  to  indorse  the  name 
of  the  other.13 


I  Fitchburg  Bank  v.  Greenwood,  2  Allen,  434. 

8  Morris  v.  Faurot,  21  Ohio  St.  155,  e.  c.  8  Am.  R.  45. 

»  Dale  v.  Year,  38  Ct.  15,  s.  c.  9  Am.  R.  353. 

4  Bank  of  Albion  v.  Smith,  27  Barb.  489;  Tebbetts  v.  Pickering:,  5  Cash.  83; 
Barry  v.  Morse,  3  N.  H.  132.  Contra,  1  Dan.  §  717.  But  a  subsequent  waiver  by 
parol  may  be  shown.  See  paragraph  45 ;  and  perhaps  an  express  authority  to  over- 
write a  guaranty  might  be  shown.  Oottrell  v.  Conklin,  4  Duer,  45. 

6  Downer  v.  Chesebrough,  36  Conn.  89,  s.  c.  4  Am.  R.  29. 

6  Wetherwax  v.  Payne,  2  Mich.  555;  Rothschild  v.  Grix,  31  Id.  150. 

7  Bell  v.  Massey,  14  La.  Ann.  831. 

8  See  Meador  v.  The  Dollar  Savings  Bank,  66  Goo.  605. 

9  Marston  v.  Allen,  8  M.  &  W.  503 ;  Rose.  N.  P.  360 ;  Denton  v.  Peters,  L.  R.  5  Q. 
B.  475. 

10  1  N.  Y.  R.  S.  768,  §  4,  same  stat.  3  A  4  Anne,  c.  9. 

II  Pease  v.  Dwight,  6  How.  IT.  S.  198. 

12  Id.     Thus  parol  evidence  is  admissible  to  show  that  the  apparent  payee  ia  dead, 
and  that  the  indorser  is  his  administrator  (see  2  Pars,  on  Pr.  N.  5) ;  that  an  individual 
name  indorsed  in  place  of  a  firm  name  of  payees,  was  the  name  habitually  used,  by 
the  firm  for  their  indorsements.     South  Carolina  Bank  v.  Case,  8  Barnw.  <fe  C.  436. 
That  a  name  of  a  payee,  whose  indorsement  is  apparently  necessary  and  is  lacking, 
was  put  or  left  in  as  payee  by  mistake,  so  as  to  entitle  an  indorsee  of  the  true  payee 
to  recover  as  indorsee,  actually,  though  not  apparently,  of  the  whole  interest.    Pease 
v.  Dwight  (above). 

13  Wood  v.  Wood,  1  Harr.  (N.  J/)  428 ;  3  Pars,  on  Pr.  N.  <tc.  4,  and  see  p.  189,  of 
this  vol.     Contra,  Snelling  v.  Boya,  5  Monr.  173. 


416  ACTION  ON  NEGOTIABLE  PAPER. 

49.  Demand.] — Though  the  instrument  be  payable  on  demand, 
it  is  not  necessary,  except  as  against  drawer  or  indorser,  to  prove 
a  demand,1  even  though  alleged.2 

50.  Non-payment.] — Plaintiff's  possession  of  the  paper  is  suffi- 
cient prima  facie  evidence  of  breach  by  non-payment.8 

51.  Indorsements  of  payment,  &c.~] — The  holder  producing 
the  instrument  from  his  own  custody,  puts  it  in  evidence  subject 
to  the  disadvantage  of  whatever  indorsements  in  reduction  of  it 
appear  upon  it.4    As  against  him  such  indorsements  need  no 
further  proof  than  their  appearance.     They  are  not  evidence  in 
his  favor,  against  others,  without  some  evidence  of  handwriting, 
signature,  or  other  assent.     They  are  evidence  against  him,  unless 
explained.     Such   an    indorsement,   if  dated,   is    presumed   (as 
against  the  holder  who  puts  it  in  evidence)  to  have  been  made  at 
the  time  of  its  date,  and,  unless  otherwise  expressed,  will  be  un- 
derstood to  indicate  a  transaction  had  at  that  time.     If  not  dated, 
it  is  not  presumed  to  have  been  made  at  or  before  delivery,  with- 
out extrinsic  evidence  to  that  effect."    Such  indorsements  are  not, 
however,  conclusive.6 

52.  Competency  of  a  party  to  the  instrument  to  impeach  it. 
The  New  York  Rule.'] — The  better  opinion  is  that  parties  to  ne- 
gotiable paper  are  equally  competent  as  any  other  witnesses  to 
testify  to  any  facts  impeaching  its  validity.6 

53.  —  the  United  States'  Court  rule.] — In  the  Supreme  Court 
of  the  United  States,  and  in  some  of  the  State  courts,  it  is  held, 
on  the  contrary,  that  a  person  who  has  placed  his  name  on  a  nego- 

1  Fairchild  v.  Ogdensbnrg,  Clayton  &  Rome  R.  R.  Co.  15  N.  Y.  837. 
s  Burnham  v.  Allen,  I  Gray,  496. 

3  Howell  v.  Van  Sicklen,  6  Hun,  115.     It  is  often   said  that  plaintiff  need  not 
prove  non-payment ;  but  this  is  because  his  possession  raises  a  sufficient  presump- 
tion of  non-payment.     In  an  action  by  the  payee's  administrator  against  the  maker, 
the  presumption  of  discharge  arising  from  the  maker's  possession  of  the  note  is  not 
rebutted  by  the  mere  fact  of  the  payee's  death.     The  question  is  for  the  jury.     Larre- 
more  v.  Wells,  29  Ohio  St.  13.     Compare  Grey  v.  Grey,  47  N.  Y.  552.     In  Powell  v. 
Swan,  5  Dana,  1,  it  was  held,  in  a  peculiar  case,  that  the  fact  that  a  note,  with  the  sig- 
nature of  the  promisor  torn  off,  remains  in  the  possession  of  the  promisee,  repels  the 
presumption  of  payment. 

4  Morris  v.   Morris,  5  Mich.  171,180;  Thompson  v.  Blanchard,  2  Iowa,  44,  48; 
Greenough  v.  Taylor,  17  111.  602.     (Contra,  of  full  payment,  Ray  v.  Bell,  24  111.  444, 
not  well  considered.)     Even  if  the  indorsements  have  been  erased.     Carson  v.  Dun- 
can, 1  Greene  (Iowa).  466;  Graves  v.  Moore,  7  T.  B.  Monr.  341. 

6  Kingman  v.  Tirrell,  11  Allen,  97. 

6  This  is  the  general  rule  administered  now  in  England,  Jordain  v.  LashbrooA,  7 
T.  R.  601;  and  in  Alabama,  Griffing  v.  Harris,  9  Port.  225  ;  Connecticut,  Jackson  v. 
Packer,  13  Conn.  342;  Georgia,  Slack  v.  Moss,  Dud.  161;  Kentucky,  Gorham  v.  Car- 
roll, 3  Litt.  221 ;  Maine  (in  a  very  qualified  form),  Abbott  v.  Kose,  62  Me.  194,  s.  c. 
16  Am.  R.  427  ;  compare  Deering  v.  Sawtel,  4  Greenl.  J91 ;  Maryland,  Ringgold  v. 
Tyson,  3  Harr.  &  J.  172;  Michigan,  Orr  v.  Lacey,  2  Doug.  230;  Missouri,  Bank  of 
Mo.  v.  Hull,  7  Mo.  273;  St.  John  v.  McConnell,  19  Id.  38;  New  Hampshire,  Haines 
v.  Dennett,  11  N.  H.  180;  New  Jersey,  Freeman  v.  Britton,  2  Harr.  191 ;  New  York, 
Williams  v.  Walbridge,  3  Wend.  415;  North  Carolina,  Guy  v.  Hull,  3  Murph.  150; 
South  Carolina,  Knight  v.  Packard,  3  MoCord,  71 ;  Texan,  Parsons  v.  Phipps.  4  Tex. 
841 ;  Vermont,  Pecker  v.  Sawyer,  24  Vt.  45 ;  Virginia,  Taylor  v.  Beck.  3  Rand. 
816. 


RULES   APPLICABLE  GEITERALLY.  417 

tiable  paper,  as  a  party  to  it,  is  not  afterward,  in  a  suit  on  such 
security,  competent  as  a  witness  to  prove  any  fact  existing  at  the 
time  of  his  accrediting  the  paper,  which  would  tend  to  impeach 
or  invalidate  it.1 

"Where  this  rule  is  recognized,  it  is  generally  restricted  so  as 
not  to  apply  except  to  negotiable  paper  indorsed  and  put  into  cir- 
culation in  the  usual  course  of  business,  before  maturity  or  dis- 
honor,2 nor  to  apply  between  original  parties  or  those  affected  with 
notice  of  their  equities,3  nor  to  exclude  testimony  to  a  fact  subse- 
quent to  the  act  by  which  the  witness  gave  credit  to  the  paper,4  or 
to  a  fact  not  impairing  the  validity  of  the  paper,  but  consistent  with 
its  terms,5  nor  to  apply  to  one  who  indorsed  "  without  recourse."  6 

54.  Admissions  and  declarations.'] — The  admissions  and  dec- 
larations of  a  party  sought  to  be  charged  are,  in  general,  compe- 
tent against  himself  ,7  whether  made  to  the  plaintiff  or  a  stranger; 
but  not  competent  in  his  own  favor,  unless  connected  with  the 
party  against  whom  they  are  adduced,  or  part  of  the  res  gestce  of 
an  act  properly  in  evidence.8 

The  admissions  and  declarations  of  a  former  holder  of  the  in- 
strument are  not  competent  against  a  subsequent  holder  if  made 
after  he  parted  with  his  title  to  the  instrument.9  If  made  before 


1  Sweeny  v.  Easter,  1  Wall.  166.  The  reason  assigned  for  this  rule  sufficiently  indi- 
cates its  unsoundness,  viz.,  that  it  is  against  good  morals  and  public  policy  to  permit  a 
person  who  has  thus  aided  in  giving  currency  and  circulation  to  such  paper  to  testify 
to  facts  which  would  render  such  paper  void,  after  he  has  thus  imposed  it  upon  the 
public  as  valid,  with  all  the  sanction  which  his  name  will  give  it.  This  is  a  good 
reason  for  holding  him,  as  a  party  to  the  action,  estopped  from  alleging  or  proving 
such  a  fact ;  but  it  is  not  a  reason  for  silencing  him  as  a  witness,  if  the  law  allow§ 
the  fact  to  be  alleged  and  proved,  and  it  rests  within  his  knowledge. 

Nevertheless  the  rule  has  been  recognized  not  only  in,  earlier  English  cases  now 
overruled,  and  in  the  Supreme  Court  of  the  United  States,  Sweeny  v.  Easter  (above) ; 
but  also  in  Ittin&R,  Dewey  v.  Warriner,  71  111.  198,  e.  c.  22  Am.  11.  91 ;  Iowa,  Strang 
v.  Wilson,  1  Morris,  84;  Louisiana,  Shamburgh  v.  Commagere,  5  Martin  (La.),  9; 
Maine,  Deering  v.  Sawtel,  4  Greenl.  191  ;  but  compare  Abbott  v.  Rose,  62  Me.  194, 
s.  c.  16  Am.  R.  427;  Massachusetts,  Thayer  v.  Grossman,  1  Mete.  416;  Mississippi, 
Drake  v.  Henly,  Walk.  641  ;  Pennsylvania,  Gaul  v.  Willis,  26  Penn.  St.  259 ;  Parke  v. 
Smith,  4  Watts  <fe  S.  287;  Ohio,  Treon  v.  Brown,  14  Ohio,  482  ;  Tennessee,  Smithwick 
v.  Anderson,  2  Swan.  673. 

9  Parke  v.  Smith,  4  Watts  <fe  S.  287  ;  Rohrer  v.  Morningstar,  18  Ohio,  679  ;  Smith- 
wick  v.  Anderson,  2  Swan.  573 ;  Thayer  v.  Grossman,  1  Sletc.  416. 

3  Eastwood  v.  Creecy,  1  MacA.  232;    Bubier  v.  Pulsifer,  4  Gray,  592.     Thus  the 
witness  may  testify  to  facts  showing  that  the  objector  was  not  a  bona  fide  holder. 
Id. 

4  Such  as  omission  to  give  notice  of  dishonor  to  charge  the  indorser,  Drake  v. 
Ilenly,  Walk.  (Miss.)  641 ;  or  an  alteration,  Haines  v.  Dennett,  11  N.  H.  180 ;  Sham- 
burgh  v.  Commagere,  5  Mart.  (La.)  9. 

•  Sweeny  v.  Easter,  1  Wall.  174. 

«  2  Pars,  on  Pr.  N.  &  B.  470. 

T  As  to  admissions  where  there  is  a  joint  or  a  several  liability,  see  p.  188  of  this 
vol. 

8  As  to  what  constitutes  part  of  the  res  gestce,  compare  Osborn  v.  Robbins,  87  Barb, 
482.  rev'd  in  86  N.  Y.  365;  Dexter  v.  Clemens,  17  Pick.  176. 

'  City  Bank  of  Brooklyn  v.  McChesney,  20  N.  Y.  240.  But  they  may  be  made 
competent  by  showing  that  he  acted  as  agent  for  the  subsequent  holder,  see  Lancey 
v.  Clark,  3  liun,  675/affi'd  in  C4  N.  Y.  209. 

27 


418  ACTIONS  ON  NEGOTIABLE  PAPER. 

that,  they  are  not  competent  against  a  transferee  for  value,  even 
after  dishonor,1  unless  his  interest  is  legally  identical  with  that 
of  the  declarant,2  or  he  took  with  actual  notice  of  the  facts.3  The 
fact  that  the  declarant  had  possession  of  the  instrument  at  the 
time  of  making  declarations  and  admissions  is  not  alone  sufficient 
to  render  such  statements  competent  against  the  one  who  was 
then  the  owner.4 

55.  Foreign  law.~\ — Matters  bearing  upon  the  execution,  the 
interpretation,  and  the  validity  of  the  contract,  are  generally  to 
be  determined  by  the  law  ot  the  place  where  it  was  made;5 
matters  connected  with  its  performance  by  the  law  of  the  place 
for  performance  ; 6  and  matters  respecting  the  remedy,  including 
questions  of  the  admissibility  of  evidence,7  upon  the  law  of  the 
forum.8 

The  law  merchant  is  presumed  by  the  court,  in  the  absence  of 
evidence  to  the  contrary,  to  be  the  same  beyond  as  within  its 
jurisdiction.9  But  that  law  cannot  override  the  local  laws  and 
legalized  commercial  usages  of  any  State  which  sees  fit  to  alter 
it?0  Such  law  of  a  foreign  State,  if  different  from  our  own,  must 
be  proved  as  any  other  fact,  in  the  modes  allowed  by  law.11  The 
court  need  not  notice  the  foreign  local  law  judicially  without  such 

f  19 

proof." 

II.  ACTION  BY  PAYEE  (OB  ORIGINAL  "BEABER")  AGAINST  MAKER. 

56.  Plaintiff's  case.'] — In  addition  to  general  rules  already 
stated,  it  is  only  necessary  to  add  that  a  due  bill,13  or  a  draft 
drawn  by  one  officer  or  agent  on  another  officer  or  agent  of  the 
same  principal,14  is  admissible  under  an  allegation  01  a  promis- 
sory note. 

The  payee  need  not  prove  indorsements  on  the  back  of  the 
instrument.  His  possession  of  the  instrument  is  prima  facie 
(but  not  conclusive)  evidence  of  his  title,15  even  though  it  have  his 

1  Jermain  v.  "Worth,  5  Den.  342,  rev'd  on  another  point  in  6  N.  Y.  276.  Otherwise 
of  actual  transactions  as  distinguished  from  loose  oral  declarations.  Id. 

8  The  rule  stated  in  the  text  is  the  New  York  Rule.  Paige  v.  Cagwin,  7  Hill,  361. 
For  contrary  rules,  see  p.  12  of  this  voL 

8  Roe  v.  Jerome,  18  Conn.  138,  152. 

4  Scott  v.  Stevenson,  3  Hun.  352,  s.  o.  5  Supra.  Ct.  (T.  &  C.)  352. 

5  Scudder  v.  Union  National  Bank,  91  U.  S.  (1  Otto),  406  (and  see  Tilden  v.  Blair, 
21  Wall.  241.;  Wayne  Co.  Bank  v.  Low,  6  Abb.  New  Cas.  76  and  cases  cited). 

6  Id. 

7  Downer  v.  Cheseljrough,  36  Ct.  89. 

8  Scudder  v.  Union  National  Bank  (above).     See  page  411,  n.  7. 

'  See  Leavenworth  v.  Brockway,  2  Hill,  201 ;  compare  Dollfus  v.  Frosch,  1  Den. 
367. 

10  2  Pars,  on  Pr.  N.  <fec.  817. 

11  See  pp.  22  and  23  of  this  voL 

12  Donegan  v.  Wood,  49  Ala.  242,  s.  c.  20  Am.  R.  276. 

13  Kiraball  v.  Huntington,  10  Wend.  675. 

14Fairchild  v.  Ogdensburgh,  Clayton  &  Rome  R.  R.  Co.  15  N.  Y.  337. 
15  For  the  rule  in  cases  of  partnership,  see  p.  224 ;  and  for  evidence  of  transfers 
among  them  before  suit,  Whitlock  v.  McKecknie,  1  Bosw.  427. 


ACTION  AGAINST  ACCEPTOR.  419 

indorsement  upon  it.1  But  if  there  are  suspicious  circumstances, 
he  may  be  put  to  further  proof.2  If  it  appear  that  he  inserted 
his  own  name  as  payee,  in  a  blank  left  in  a  note  payable  to  order, 
he  must  adduce  evidence  that  he  was  intended  as  payee,  or  au- 
thorized to  insert  his  name.3  If  it  appear  that  there  are  two  persons 
of  the  payee's  name,  plaintiff's  possession  is  some  evidence  that 
he  is  the  one  intended,4  but  it  is  best  to  be  prepared  with  other 
evidence.  Defendant's  possession  of  the  note,5  even  though  it  be 
canceled,6  is  not  conclusive  evidence  against  plaintiff's  right  to 
recover.  If  it  appear  that  plaintiff  had  at  one  time  transferred 
the  note  to  a  third  person,  evidence  of  a  re-assignment,7  or  that 
the  transfer  was  without  consideration,  and  merely  for  a  tem- 
porary purpose  which  had  failed, — such  as  to  enable  him  to  bring 
an  action,  which  has  been  discontinued, — is  admissible.8 

III.  ACTION  AGAINST  ACCEPTOR. 

57.  Accep ta nee.']— Against  the  acceptor,  his  acceptance  must 
be  proved,  if  in  issue  ;  which  is  done  by  producing  the  bill,  with 
evidence  of  his  handwriting.  This  raises  a  presumption  of  ac- 
ceptance within  due  time  and  according  to  the  course  of  busi- 
ness.9 If  the  words  do  not  necessarily  import  acceptance,  although 
such  as  to  be  sufficient  if  unexplained,  parol  evidence  is  compe- 
tent to  show  the  circumstances  under  which  they  were  written, 
and  accompanying  declarations  which  are  not  necessarily  incon- 
sistent with  the  writing.10  At  common  law,  a  parol  acceptance 
may  be  proved  either  by  a  promise  to  pay  or  to  accept  an  existing 
bill,11  or  by  a  promise  to  accept  a  future  bill  coupled  with  evidence 
that  the  bill  was  taken  on  the  faith  of  the  promise.12 

Under  the  statute,  a  writing,  signed,  or  at  least  signature,13 
must  be  shown,14  in  the  case  of  any  bill  accepted  and  to  be  paid 
in  this  State.15 

1  Mottram  v.  Mills,  1  Sandf.  37. 
s  Grant  v.  Vaughan,  3  Burr.  1627. 

3  Crutchly  v.  Mann,  5  Taunt.  529.     But  see  paragraph  34. 

4  Sweeting  v.  Fowler,  1  Stark.  106 ;  Stebbing  v.  Spicer,  8  C.  B.  827. 

5  Garlock  v.  Geortner,  7  Wend.  198. 

6  Grey  v.  Grey,  47  N.  Y.  652,  rev'g  2  Lans.  173. 

7  Smith  v.  Childress,  27  Ark.  328;  s.  P.  Washoe  v.  Hibernia  Fire  Ins.  Co.  7  Hun,  75. 

8  Hatters'  Bank  v.  Phillips,  38  N.  Y.  128. 

9  Rose.  N.  P.  856,  citing  Roberts  v.  Bethel!,  12  C.  B.  778. 

10  So  held  where  the  indorsement  was :  "  I  take  notice  of  the  above."    Cook  v. 
Baldwin,  120  Mass.  317,  s.  o.  21  Am.  R.  517.     When  from  the  position  of  names  in 
the  paper  it  is  uncertain  which  is  drawer  and  which  is  acceptor,  parol  evidence  may 
be  given  in  an  action  by  the  payee,  to  show  the  intention  of  the  parties.     Walton  v. 
Williams,  44  Ala.  N.  S.  848;  and  see  Druiff  v.  Lord  Parker,  L.  R.  6  Eq.  131. 

11  Edson  v.  Fuller,  22  N.  H.  (3  Post.)  189;    Bank  of  Michigan  v.  Ely,  17  Wend. 
611,  per  NELSON,  Ch.  J. 

12  Ontario  Bank  v.  Worthington,  12  Wend.  698. 

13  Spear  v.  Pratt,  2  Hill,  683.     See  Walker  v.  Bank  of  State  of  N.  Y.  9  N.  Y.  684. 

14  1  N.  Y.  R.  S.  768,  §  6  (2  R.  S.  6th  ed.  1160);  Blakiston  v.  Dudley,  5  Duer,  376. 
Otherwise  of  a_n  order  operating  as  an  assignment.     Morton  v.  Naylor,  1  Hill,  684 ; 
compare  Luff  v.  Pope,  5  Id.  417. 

16  N.  Y.  &c.  Bank  v.  Gibson,  5  Duer,  683. 


420.  ACTIONS  ON  NEGOTIABLE  PAPER. 

One  suing  on  a  conditional  acceptance  must  show  performance 
•  of  the  condition.1 

58.  Other  facts.'} — Acceptance  being  proved,  the   drawer's 
signature  is  thereby  admitted  and  need  not  be  proved ;  but  the 
genuineness  of  an  indorsement  made  by  the  drawer  of  a  bill  pay- 
able to  his  own  order,  though  made  at  the  time  of  drawing  and 
before  acceptance,  is  not  admitted,2  but  must  be  proved.     An 
acceptance8  precludes  the  acceptor  from  proving  that  the  drawers 
were  legally  incapable  of  contracting,4  or  that  they  were  not  a 
firm  as  indicated  by  the  bill  itself,8  but  not  from  proving  altera- 
tion of  the  body  of  the  instrument.6    Due  presentment  for  ac- 
ceptance is  proved  by  proof  of  acceptance.7 

59.  Promise  to  accept.'] — An  agreement  or  promise  to  accept, 
if  equivalent  in  law  to  acceptance,  may  be  proved  under  an  alle- 
gation of  acceptance;8   and  no  consideration  need  be  shown.9 
Absolute  written 10  authority  to  draw  is  equivalent  to  an  uncondi- 
tional promise  to  accept,11  within  the  statute  ;  ™  but  authority  to 
draw  must  point  with  certainty  to  the  bills  sued  on.13    A  con- 
ditional authority  or  promise  is  not  enough  under  the  statute,14 
even  if  the  condition  be  shown  to  have  been  performed.15    In 
case  of  an  acceptance  on  a  separate  paper,  or  a  promise  to  accept 
a  future  bill,  it  is  not  essential  to  prove  that  the  writing  was 
shown  to  the  person  who  took  the  bill ;  it  is  enough,  if  informed 
of  it,  he  took  the  bill  on  the  faith  of  it.16    To  recover  as  bona 
fide  holder,  against  an  acceptor  who  would  not  be  bound  other- 
wise, it  is  not  enough  to  show  parting  with  value  before  the 
acceptance,  even  in  reliance  that  the  bill  would  be  accepted  as 
other  like  bills  had  been  before.17 


'  Read  v.  Wilkinson,  2  Wash.  C.  Ct.  514 ;  Ford  v.  Angelrodt,  37  Mo.  50.  Whether 
a  qualification  imports  a  condition  is  a  question  of  law  for  the  judge.  Sprout  v. 
Matthews,  1  T.  R.  182 ;  Rose.  N.  P.  355. 

•  2  Pars,  on  Pr.  N.  <fec.  483.  And  evidence  of  the  genuineness  of  the  latter 
having  been  given,  the  jury  may  compare  the  two.  Id.  A  variance  in  stating  the 
initial  of  first  name  of  drawer  will  not  sustain  a  general  denial.  (Jlalliu  v.  Griffin, 
8  Bosw.  689. 

3  Even  if  for  honor.     Rose.  N.  P.  380. 

4  Rose.  N.  P.  358. 

5  2  Pars,  on  Pr.  N.  Ac.  484. 

6  White  v.  Continental  Bank,  64  N.  Y.  316. 

7  Edson  v.  Fuller,  22  N.  H.  (2  Fost.)  183,  186. 

8  Ontario  Bank  v.  Worthington,  12  Wend.  593.    But  it  may  be  specially  pleaded. 
Barney  v.  Worthington,  37  N.  Y.  112 ;  and  should  be  if  general.    Boyce  v.  Edwards, 
4  Pet.  111. 

9  Ontario  Bank  v.  Worthington  (above). 

10  So  held  of  a  telegram.     Johnson  v.  Clark,  39  N.  Y.  216. 

11  Ulster  Co.  Bank  v.  McFarlan,  5  Hill,  434. 
13  IN.  Y.  R.  S.  1160,  §  8. 

13  Boyce  v.  Edwards,  4  Pet.  121,  and  cases  cited. 

14  Shaver  v.  Western  Union  Tel.  Co.  57  N.  Y.  459. 

15  N.  Y.  <fe  Virginia,  <fcc.  Bank  v.  Gibson,  5  Duer,  584  ;    contra,  per  DWIQHT,  C., 
dissenting  in  Shaver  v.  Western  Union  Tel.  Co.  57  N.  Y.  467. 

16  Bank  of  Mich.  v.  Ely,  17  Wend.  508. 

"  Farmers',  <fcc.  Bank  v.  Empire  Stone  Dressing  Co.  10  Abb.  Pr.  47,  s.c.5  Bosw.275. 


AGAINST  DRAWER,  Ac.,  ON  NON-ACCEPTANCE.  421 

60.  Several  parts,  or  duplicates.] — In  an  action  against  the 
drawer  or  indorser,  of  a  bill  of  exchange  drawn  in  parts,  plaintiff 
must  produce  at  the  trial  the  identical  bill  or  number  of  the  set 
that  was  protested,  or  account  for  its  absence.1    Extrinsic  evi- 
dence is  competent  for  the  purpose  of  showing  that  the  word 
"  duplicate  "  written  across  the  instrument,  was  affixed  because  it 
was  given  merely  as  a  substitute  for  a  lost  original,8 

IV.  ACTION  AGAINST  DRAWEE;  ON  NON-ACCEPTANCE. 

61.  Refusal  to  accept.] — In  an  action  against  drawer  or  in- 
dorser, for  the  drawee's  refusal  to  accept,  presentment  for  accept- 
ance must  be  alleged  and  proved ; 8  and  it  is  sufficient  for  the 
plaintiff  to  show  that  the  drawee  refused  to  accept  in  the  terms 
of  the  bill.4    On  the  question  what  was  a  reasonable  time  for 
presentment,  the   distances,  the  means  of  communication,  the 
usages  of  trade,  the  fluctuations  of  exchange,  and  illness  or  in- 
evitable accident,  are  relevant.5    If  presented  to  an  agent,  plaintiff 
must  give  some  evidence  of  authority  to  accept  or  refuse, — but 
this  may  be  circumstantial,  as,  for  instance,  that  the  person  was 
the  drawee's  clerk,  known  to  be  accustomed  to  do  this  kind  of 
business  for  him.6 

62.  Excuse  for  non-presentment.'] — Evidence  that  the  drawer 
had  no  funds  in  the  hands  of  the  drawee  from  the  time  the  bill 
was  drawn  till  the  time  it  became  due,  dispenses  with  the  neces- 
sity of  presentment,7  unless   the  drawer  shows  he  had  a  reason- 
able expectation  that  it  would  be  paid.8    As  against  the  drawer, 
his  oral  request  to  delay  presentment  is  competent.9 

Without  proof  of  agency  to  speak  for  the  drawer,  the  drawee's 
declarations,  though  made  at  the  time  of  presentment,  that  he 
had  no  funds  of  the  drawer  in  his  hands,  are  not  admissible 
against  the  drawer.10 


1  Wells  v.  Whitehead,  15  Wend.  627.  As  to  effect  of  the  words  "  second  of  ex- 
change, first  unpaid,"  see  Bank  of  Pittsburgh  v.  Neal,  22  How.  U.  S.  96,  and  cases 
cited. 

*  Benton  v.  Martin,  40  N.  Y.  345,  qualifying  result  in  31  Id.  382. 

8  Mercer  v.  Southwell,  2  Show.  180;  Rose.  N.  P.  367. 

4  Boehm  v.  Garcias,  1  Camp.  425,  n. ;  Rose.  N.  P.  367. 

6  Pars,  on  Pr.  N.  Ac.  342. 

6  Pars,  on  Pr.  N.  <fec.  849. 

T  Kingsley  v.  Robinson,  21  Pick.  328.  The  presumption  is  that  the  drawee  is  in 
fonds.  Thurman  v.  Van  Brunt,  19  Barb.  409;  even  though  several  places  of  pay- 
ment are  named.  North  Bank  v.  Abbot,  1 3  Pick.  465.  Evidence  of  a  refusal  to  pay 
the  drawer's  drafts  a  day  or  two  before  and  after  may  be  sufficient  to  rebut  this  pre- 
sumption. Ransom  v.  Wheeler,  12  Abb.  Pr.  139. 

8  Carle  v.  White,  9  Greenl.  (Me.)  105.     The  allegation  of  no  funds  is  disproved  if 
it  be  shown  that  the  drawer  had  effects  on  their  way  to  the  drawee,  though  they 
never  reached  him.     Rose.  N.  P.  378. 

9  Sheldon  v.  Chapman,  31  N.  Y.  644. 

10  Carle  v.  White,  9  Greenl.  (Me.)  104.  And  the  notary's  statement  of  such  dcclar. 
ations  inserted  in  his  protest  is  not  evidence.  Dumont  v.  Pope,  7  Blackf.  807; 
Dakin  v.  Graves,  48  N.  H.  46. 


422  ACTIONS  ON  NEGOTIABLE  PAPER. 

Although  the  acceptance  was  expressed  to  be  payable  at  a 
particular  place,  the  acceptor  is  prima  facie  liable  without  alle- 
gation or  proof  of  demand  for  payment  there.  It  is  for  him  to 
show  readiness  to  pay  if  he  rely  on  that.1 

Y.  AGAINST  DRAWER,  &c. ;  ON  NON-PAYMENT. 

63.  Acceptance  and  presentment.'] — If  the  acceptance  specifies 
a  place  other  than  the  acceptor's  residence  as  the  place  of  pay- 
ment, there  must  be  evidence  of  the  handwriting  of  the  acceptor.8 
Evidence  that  the  drawer,  after  the  return  of  the  bill  to  him  for 
non-payment,  and  after  inspection  of  the  bill,  promised  to  pay 
it,  raises  a  presumption  against  him  that  the  acceptance  is  genu- 
ine.3   Evidence  of  presentment  at  the  place  specified  is  admis- 
sible, under  a  general  allegation  that  the  bill  was  duly  presented.4 
And  under  an  allegation  that  a  bill  drawn  on  one  as  of  a  specified 
address,  and  accepted  generally,  was  presented  to  the  drawee  for 
payment,  evidence  that  the  holder  went  to  the  address,  but  found 
no  one  there,  is  admissible.5 

Other  rules  as  to  dishonor  are  stated  below,  in  connection 
with  those  as  to  charging  indorsers. 

YL  ACTIONS  AGAINST  INDORSERS,  &c. 

64.  Execution  of  the  instrument^ — It  is  not  necessary,  as 
against  an  indorser,  to  prove  the  signature  of  the  maker,6  drawer,7 
or  of  prior  indorsers.8    Nor  can  the  indorser  question  their  capa- 
city ; 9  nor  the  genuineness  of  the  signatures.10     Under  a  denial 
of  indorsing,  defendant  may  show  that,  without  negligence  on  his 
part,  his  signature  was  fraudulently  obtained,  without  any  inten- 
tion on  his  part  to  indorse.11    The  rules  applicable  to  the  mode 
of  proving  the  defendant's  indorsement,12  and  to  oral  evidence  to 
vary  it,13  have  been  already  stated. 

As  against  an  indorser,  on  non-payment  of  a  bill  by  the 
drawee,  evidence  .of  a  presentment  for  payment,  at  the  place,  if 
any,  pointed  out  in  the  acceptance,  is  enough,  without  proving 
the  acceptance  itself.14 

1  Green  v.  Goings,  7  Barb.  652 ;  Terbell  v.  Downer,  28  Vt.  (1  "Will.)  511. 
8  Rose.  N.  P.  369. 
1  Mottram  v.  Mills,  1  Sandf.  37. 
4  Rose.  N.  P.  369. 
8  Id. 

8  Dalrymple  T.  Willenbrand,  62  N.  Y.  5,  affi'g  2  Hun,  488,  s.  c.  6  Supm.  Ct.  (T.  & 
C.)  57. 

I  Rose.  N.  P.  381,  399. 

8  Evidence  of  a  misspelling  of  such  a  name  is  admissible  to  show  that  it  was  in- 
tpnded  to  make  the  paper  payable  to  a  fictitious  person.     Turnbull  v.  Bowyer,  40  N. 
Y.  456,\affi'g  2  Robt.  406. 

9  Id. ;  Erwin  v.  Downs,  15  N.  Y.  575. 

10  See  Turner  v.  Keller,  66  N.  Y.  66. 

II  Foster  T.  Mackinnon,  L.  R.  4  C.  P.  704;  Rose.  N.  P.  380. 

12  Paragraphs  46  and  4  to  26. 

13  Paragraphs  47  and  48,  and  26. 

14  Rose.  N.  P.  381.  * 


ACTIONS  AGAINST  INDORSERS,  Ac.  423 

65.  Pleading  facts  to  charge  indorserJ] — An  allegation  of  de- 
mand and  notice  of  dishonor  is  essential ;  and  its  omission  is  not 
dispensed  with  by  giving  a  copy  of  the  instrument  and  alleging 
the  sum  due,  and  performance  of  conditions,  &c.,  in  the  short 
form,  allowed  by  Code  of  Procedure,  for  pleading  instruments  for 
the  payment  of  money  only.1     Under  an  allegation  of  demand 
and  notice,  the  fact  must  be  proved,  and  an  excuse  for  failing  to 
demand,2  or  to  give  notice,3  is  not  admissible 4  without  amend- 
ment;5 but  indirect  evidence,  such  as  a  subsequent  promise  to 
pay,  or  an  actual  part  payment,  or  an  admission  of  liability,  is  ad- 
missible ; 6  and  evidence  of  an  informal  demand,  with  reasons  justi- 
fying it,  as  distinguished  from  excuse  for  non-demand,  is  admis- 
sible.7 

66.  Cogency  of  the  evidence.'} — The  evidence  of  demand  and 
notice  must  be  sufficiently  clear.     Mere  probability  of  proof  is 
not  enough  ; 8  but  direct  and  positive  evidence  is  not  essential.9 

67.  Time  of  demand.'] — The  court  may  take  judicial  notice 
of  the  law  merchant  which  allows  grace,10  and  of  the  occurrence  of 
Sundays,11  and  other  universally  known  festivals,  such  as  Christ- 
mas.12    Evidence  of  usage  is  not  competent,  in  opposition  to  the 
established  principles  of  law,  as  to  shorten  the  time  fixed  by  law.13 
Evidence  that  demand  was  made,  at  the  proper  place  and  on  the 
proper  day,  is  prima  facie  evidence  that  the  act  was  done  at  a 
proper  time  of  the  day.14    According  to  high  authority,  those 


1  Conkling  v.  Gandall,  1  Abb.  Ct.  App.  Dec.  423. 

3  Garvey  v.  Fowler,  6  Duer,  587  ;  Dolph  v.  Rice,  18  Wise.  397  ;  Shultz  T.  Depuy, 
3  Abb.  Pr.  252 ;  Rose.  N.  P.  377.     The  excuse  is  deemed  one  of  the  facts  constitut- 
ing the  cause  of  action.     Pier  v.  Heinnchoffen,  52  Mo.  333.     Contra,  at  common  law, 
Williams  v.  Matthews,  3  Cow.  252;    2  Greenl.  on  Ev.  §  197.  approved  by  Daniel, 
vol.  2,  p.  90,  Ac.  §  1048.     The  variance  ought  to  be  freely  amendable  if  it  has  not 
misled.     An  express  written  acknowledgment  of  demand,  <fcc.,  is  competent  under  an 
allegation  of  the  demand,  <fec.,  although  it  be  proved  as  matter  of  fact  that  there  was 
none  ;  if  the  acknowledgment  was  made  with  full  knowledge  of  the  facts.     Camp  v. 
Bates,  11  Conn.  487. 

8  Curtis  v.  State  Bank,  6  Blackf.  312;  Rose.  K  P.  377. 

4  Leeson  v.  Pigott,  Bayley  on  Bills,  9th  ed.  409. 
6  Rose,  on  P.  369,  377. 

6  Bank  of  United  States  v.  Lyman,  1  Blatchf.  297,  B.  c.  20  Yt.  666,  679,  affi'd  12 
How.  225;  Sherman  v.  Clark,  3  McLean,  91.  Evidence  that  the  drawees  after  ma- 
turity repeatedly  promised  to  pay  the  bill,  is  sufficient  to  sustain  a  finding  that  it 
was  duly  presented  at  maturity,  although  the  drawees  testify  it  was  not  so  presented. 
Patterson  v.  Stettauer,  40  Super.  Ct.  (J.  <fe  S.)  54. 

1  Rose.  N.  P.  369,  379 ;  Jones  v.  Fales,  4  Mass.  245 ;  City  Bank  v.  Cutter,  3  Pick. 
414. 

8  Martinis  v.  Johnson,  1  Zabr.  (N.  J.)  239.     But  compare  Kane  v.  Ins.  Co.  20 
Am.  R.  409 

9  Commercial  Bank  v.  Strong,  28  Vt.  816. 

10  Renner  v.  Bank  of  Columbia,  9  Wheat.  581. 

11  Mechanics  <fe  Farmers'  Bank  v.  Gibson,  7  Wend.  460. 
14  Sasscer  v.  Farmers'  Bank,  4  Md.  409,  420. 

13  Randall  v.  Smith,  63  Me.  105,  s.  o.   18  Am.  R.  200.     Compare  City  Bank  v. 
Cutter,  3  Pick.  414. 

14  Wiseman  v.  Chiappella,  23  How.  (U.  S.)  368  ;  DeWoJf  v.  Murray,  2  Sandf.  166  ; 
Fleming  v.  Fulton,  7  Miss.  (6  How.)  473. 


424  ACTIONS  ON  NEGOTIABLE  PAPER. 

who  make  paper  payable  at  a  bank  are  bound  by  the  usage  of  the 
bank,  whether  they  Know  it  or  not.1  The  court  may  take  judicial 
notice  of  what  are  banking  hours  within  their  own  local  jurisdic- 
tion, but  will  not  do  so  as  to  places  beyond  the  State.2 

68.  Place  of  demand?\ — If  the  paper  specifies  the  place  of 
payment,   the  evidence    must    show    aemand  there ; 3    if    not, 
the  place  of  date,4  or,  if  undated,  the  place  of  making,5  is  pre- 
sumptively the  place  for  payment ;  but  oral  evidence  not  contradict- 
ing what  is  thus  expressed,  is  competent.6    If  a  specific  address  is 
not  stated  or  shown  by  extrinsic  evidence,  the  plaintiff,  in  order  to 
rely  on  the  fact  that  holder  had  the  note  at  the  place  generally 
mentioned,  on  the  day,  ready  to  receive  payment,  must  show  that 
the  maker  had  no  ascertainable  place  of  business  or  residence  there.7 

69.  Authority  to  demand^ — The  fact  that  the  instrument 
was  in  the  possession  of  the  notary  or  other  person  making  the 
demand,  is  prima  facie  evidence  of  his  authority  to   demand 
payment.8 

TO.  Identity  of  maTcer  or  drawee,  or  authority  of  agent  or 
servant.'} — To  show  that  the  demand  was  made  on  the  proper 
person,  indirect  evidence  is  sufficient,  and  very  slight  evidence 
has  often  been  accepted,  in  the  absence  of  all  evidence  to  the 
contrary.  Answers  made  by  a  person  applied  to  as  the  maker  or 
drawee,  on  a  demand  of  payment,  admitting  himself  to  be  the 
person  supposed,  are  admissible  as  part  of  the  res  gestce,  and  are 
presumptive  evidence  that  the  person  of  whom  the  demand  was 
made  was  the  maker  or  drawee.9  For  this  purpose,  parol  evi- 
dence is  competent,10  and  very  slight  evidence  may  be  enough. 
It  is  not  sufficient  to  show  that  the  bill  was  presented  to  some 
person  on  the  premises  of  the  maker  or  drawee  without  connect- 
ing them.11 

A  notarial  certificate,  competent  to  prove  demand,  is  prima 
facie  evidence  of  the  identity  of  the  person  on  whom  the  demand 


1  1  Dan.  Neg.  Inst.  §  662. 

2  See  1  Dan.  Neg.  Inst.  §  601. 

3  Meyer  v.  Hibsher,  47  N.  Y.  270.     But  evidence  of  special  agreement,  or  of 
usage  equivalent  thereto,  is  competent  to  show  that  notice  to  the  maker  what  bank 
held  the  note  was  contemplated  and  was  given,  in  lieu  of  literal  demand.     North 
Bank  v.  Abbot,  13  Pick.  464. 

4  Nailor  v.  Bowie,  3  Md.  251. 

6  Id. ;  Herrich  v.  Baldwin,  17  Minn.  209,  s.  c.  10  Am.  R.  161. 

6  Meyer  v.  Hibsher,  47  N.  Y.  271.     And  see  King  v.  Crowell,  61  Me.  244,  s.  c.  14 
Am.  R.  560. 

7  Meyer  v.  Hibsher  (above). 

8  Bank  of  Utica  v.  Smith,  18  Johns.  239  ;  Burbank  v.  Beach,  16  Barb.  331. 

9  Hunt  v.  Maybee,  7  N.  Y.  266 ;    s.  p.  Howard  v.  Holbrook,  9  Bosw.  237,  s.  c.  23 
How.  Pr.  64. 

10  Staenbach  v.  Bank  of  Virginia,  11  Gratt.  260. 

11  Cheek  v.  Roper,  5  Esp.  175 ;  Rose.  N.  P.  367. 


ACTIONS  AGAINST  INDORSEES,  Ac.  425 

was  made,  or,  equally,  of  the  fact  stated  that  he  was  a  member  of 
the  firm l  or  agent  for  the  maker  or  drawee.2 

71.  Production  of  the  instrument.'} — Yisible  production   of 
the  instrument  need  not  be  proved  if  the  person  making  demand 
had  it  there  in  his  possession,  and  there  was  an  absolute  refusal 
to  pay.3    The  fact  that  the  notary  had  the  instrument  with  him, 
though  not  stated,  may  be  presumed  in  aid  of  his  certificate.4 
When  the  instrument  is  made  payable  at  a  bank,  if  the  bill  is 
the  property  of  the  bank,  the  presence  of  the  instrument  there 
need  not  be  proved,  as  the  presumption  of  law  is,  that  the  paper 
was  in  the  bank,  and  the  burden  rests  upon  the  defendant  to 
show  that  the  party  liable  called  to  pay  it.5    Even  if  not  the 
property  of  the  bank,  plaintiff  need  not  show  that  the  instrument 
was  in  the  hands  of  the  officer  of  the  bank  whose  duty  it  was  to 
receive  payment ;  and  the  contrary  would  not  be  material,  if  the 
note  was  in  the  bank  ready  for  payment,8  and  remained  unpaid. 
If  shown  to  have  been  in  the  bank,  the  presumption  is  that  the 
proper  officer  could  have  obtained  it.     Evidence  that  it  belonged 
to  the  bank,  raises  a  prima  facie  presumption  that  it  was  there.7 

72.  Due  diligence  in  demand.'] — On  the  question  whether 
due  diligence  was  used  in  making  inquiry,  the  answers  made  by 
persons  of  whom  inquiry  was  properly  made,  are  competent  as 
parts  of  the  res  gestce,  not  as  evidence  of  the  facts  stated,  but  as 
bearing  on  the  question  of  diligence.8    If  the  person  making  de- 
mand or  inquiry  is  dead,  his  memoranda,  made  in  the  course  of 
duty,  of  his  acts  in  pursuance  of  inquiry  are  competent.9    So 
where  the  law  requires  diligence  to  collect  of  maker  and  prior 
indorsers,  the  record  of  an  action  against  them  is  competent.10 

73.  Official  protest  as  evidenced] — By  the  law  merchant,  de- 
mand, presentment  and  dishonor  of  a  foreign  negotiable  bill  of 
exchange  (that  is,  of  one  payable  without  the  State) u  can  be 
proved  for  the  purpose  of  charging  a  drawer  or  indorser,  only  by 


1  Elliott  v.  White,  6  Jones  (N.  C.)  98.     But  compare  Otsego  Co.  Bank  v.  Warren, 
18  Barb.  290. 

2  Dickerson  v.  Turner,  12  Ind.  223;  Phillips  v.  Poindexter.  18  Ala.  579.     Contra, 
Drumni  v.  Bradfute,  18  La.  Ann.  680.     The  evidence  is  aided  by  the  presumption  of 
official  regularity.     See  Gardner  v.  Bank  of  Tennessee,  2  Swan,  420. 

8  King  v.  Crowell,  61  Me.  244,  8.  o.  14  Am.  R.  560;  Etheridge  v.  Ladd,  44  Barb. 
69. 

4  Ross  v.  Bedell,  5  Dner,  462  ;  Union  Bank  v.  Foulkes,  2  Sneed  655. 
1  Chicopee  Bank  v.  Philadelphia  Bank,  8  Wall.  641,  and  cases  cited. 
6  Otherwise  if  mislaid.     Chicopee  Bank  v.  Philadelphia  Bank  (above). 
1  1  Pars,  on  Pr.  N.  <fcc.  437. 

8  Adams  v.  Lelnnd,  80  N.  Y.  309,  affi'g  5  Bosw.  411. 

9  Halliday  v.  Martinet,  20  Johns.  168. 

10  Caraden  v.  Doremus,  3  How.  (U.  S.)  515 ;  2  Whart.  §  823. 

11  Whether  protest  is  competent  in  case  of  a  bill  drawn  without,  and  payable  and 
•   protested  within  the  State,  see  2  Dan.  Neg.  Inst.  §  969,  and  cases  cited;  Brain  v. 

Preece,  11  Mees.  &  W.  775. 


426  ACTIONS  ON  NEGOTIABLE  PAPER. 

protest ; l  and  no  part  of  these  facts  can  be  proved  by  extrinsic 
evidence.  If  the  demand  and  notice  were  made  by  the  clerk  or 
partner  of  the  notary  whose  certificate  of  the  act  is  relied  on, 
evidence  of  a  local  usage  for  the  notary's  clerk  to  make  the  de- 
mand, is  competent  and  necessary ; 2  and  the  usage  must  be  shown 
to  relate  to  the  class  of  paper  in  question,  foreign  or  domestic.8 

In  the  case  of  promissory  notes 4  and  inland  I  ills,5  the  com- 
petency of  the  notarial  certificate  depends  entirely  upon  statute  ' 
Where  proof  by  certificate  is,  by  statute,  substituted  for  common- 
law  evidence,  all  the  forms  directed  by  the  statute,  whether  pre- 

1  By  notary's  certificate  or  by  proof  that  it  was  made  at  a  place  where  there  was 
no  resident  notary,  and  by  a  substantial  person  of  the  place.  Chanoine  v.  Fowler, 
8  Wend.  173;  and  see  Burke  v.  McKay,  2  How.  (U.  S.)  66. 

4  Commercial  Bank  of  Ky.  v.  Varnum,  49  N.  Y.  269,  s.  o.  11  Am.  Law  Reg.  (N. 
S.)  307,  rev'g  3  Lans.  86  ;  Cribbs  v.  Adams,  13  Gray,  600. 

3  1  Dan.  Neg.  Inst.  §  587 ;  2  Dan.  Neg.  Inst.  §  926. 

4  Bond  v.  Bragg,  17  111.  69.     Contra,  in  some  States,  as  to  notea  payable  in  one 
State  and  indorsed  by  a  resident  of  another  State.    Williams  v.  Putnam,  14  N.  H.  540. 
So,  too,  evidence  of  usage  may  avail  in  some  jurisdictions.     See  Townley  v.  Sumrall, 
2  Pet.  170. 

6  Union  Bank  v.  Hyde,  6  Wheat.  572 ;  Nicholls  v.  Webb,  8  Id.  326. 

8  See,  for  instance,  Walker  v.  Turner,  2  Gratt.  534. 

The  New  York  Statutes,  as  to  notarial  certificates,  are  as  follows : 

"  The  certificate  of  a  notary  public  of  the  State,  under  his  hand  and  seal  of  office, 
of  the  presentment  by  him,  for  acceptance  or  payment,  or  of  the  protest,  for  non-ac- 
ceptance or  non-payment  of  a  promissory  note  or  bill  of  exchange,  or  of  the  service  of 
notice  thereof  on  a  party  to  the  note  or  bill ;  specifying  the  mode  of  giving  the  notice, 
the  reputed  place  of  residence  of  the  party  to  whom  it  was  given,  and  the  post-office 
nearest  thereto,  is  presumptive  evidence  of  the  facts  certified,  unless  the  party, 
against  whom  it  is  offered,  has  served  upon  the  adverse  party,  with  his  pleading,  or, 
within  ten  days  after  joinder  of  an  issue  of  fact,  an  original  affidavit,  to  the  effect, 
that  he  has  not  received  notice  of  non-acceptance,  or  of  non-payment  of  the  note  or 
bill.  A  verified  answer  is  not  sufficient  as  an  affidavit,  within  the  meaning  of  this 
section."  Code  Civ.  Pro.  §  923,  from  L.  1833,  c.  271,  §  8  (3  R.  S.  6th  ed.  445,  §  36) ; 
and  see  3  R.  S.  6th  ed.  1163. 

"  In  case  of  the  death  or  insanity  of  a  notary  public  of  the  State,  or  of  his  absence 
or  removal,  so  that  his  personal  attendance,  or  his  testimony,  cannot  be  procured,  in 
any  mode  prescribed  by  law,  his  original  protest,  under  his  hand  and  official  seal,  the 
genuineness  thereof  being  first  duly  proved,  is  presumptive  evidence  of  a  demand  of 
acceptance,  or  of  payment,  therein  stated ;  and  a  note  or  memorandum,  personally 
made  or  signed  by  him,  et  the  foot  of  a  protest,  or  in  a  regular  register  of  official  acts, 
kept  by  him.  is  presumptive  evidence  that  a  notice  of  non-acceptance  or  non-payment 
was  sent  or  delivered,  at  the  time,  and  in  the  manner,  stated  in  the  note  or  memo- 
randum." Code  Civ.  Pro.  §  924,  from  2  R.  S.  283,  284,  §§  46,  47  (3  R.  S.  6th  ed.  444, 
446). 

"  Proof  of  the  presentment,  for  acceptance  or  payment,  of  a  promissory  note  or 
bill  of  exchange,  payable  in  another  State,  or  in  a  Territory,  or  foreign  country,  or  of 
a  protest  of  the  note  or  bill,  for  non-acceptance,  or  non-payment,  or  of  the  service  of 
notice  thereof,  on  a  party  to  the  note  or  bill,  may  be  made,  in  any  manner  authorized 
by  the  laws  of  the  State,  Territory,  or  country,  where  it  was  payable."  Code  Civ. 
Pro.  §  925,  from  L.  1865,  c.  309  (2  R.  S.  6th  ed.  1164,  §  82). 

The  act  of  1833,  above  stated,  has  no  application  to  the  case  of  a  certificate  of  a 
notary  of  this  State  to  the  presentment  of  a  note  drawn  payable  at  a  place  in  another 
State.  Dutqhess  Co.  Bank  v.  Ibbotson,  5  Den.  110;  Kirtland  v.  Wanzer,  2  Duer, 
278.  Nor  does  it  make  a  notary's  certificate  evidence  of  an  excuse  for  not  presenting 
— e.  g.,  that  on  due  inquiry  he  had  been  unable  to  find  the  maker.  Furniss  v.  Hol- 
land, 1  Edm.  470.  Where  the  notarial  certificate  makes  no  mention  of  the  service 
of  notice  of  protest,  a  memorandum  at  the  foot  of  the  draft  annexed  to  the  certi- 
ficate, is  no  evidence  of  such  service.  Bank  of  Vergennes  v.  Cameron,  7  Barb.  143. 


ACTIONS  AGAINST  INDORSEES,  <feo.  427 

liminaiy  or  substantial,  must  be  strictly  complied  with.1  A  stat- 
ute making  the  notarial  certificate  or  record  evidence  on  notes  or 
inland  bills,  does  not  make  it  evidence  in  the  courts  of  another 
State;2  nor  does  a  statute  making  it  evidence  of  demand  and 
dishonor,  imply  that  it  is  to  be  received  as  evidence  of  notice  in 
the  courts  of  the  same  State.8  If  the  statute  declares  the  notarial 
certificate  to  be  evidence,  the  certificate  must  not  purport  to  be 
a  mere  copy  of  a  record  from  the  notary's  books.  But  it  need  not  be 
made  out  and  signed  at  the  time  of  making  the  protest.4  The 
official  certificate  is  not  rendered  incompetent  by  the  fact  that 
it  was  drawn  up,5  or  a  mistake  in  it  was  corrected  by  the  notary 6 
after  suit  brought. 

If  there  is  not  annexed 7  to  an  answer  denying  notice  of  pro- 
test, an  affidavit  of  denial  of  receipt  of  notice,  as  required  by  the 
act  of  1833,8  the  notary's  certificate  is  presumptive  evidence ;  and 
this  presumption  is  not  destroyed  by  defendant's  testimony  on 
the  trial,  that  he  did  not  receive  the  notice  sent  through  the  post- 
office.9 

In  New  Tork,  a  plaintiff  relying  on  the  act  allowing  protest 
in  another  State  to  be  proved  according  to  the  law  of  that  State,10 
should  produce  the  foreign  certificate  duly  authenticated  accord- 
ing to  the  law  of  the  place  where  made,  with  evidence  of  the  law 
of  that  place,  sufficient  to  show  that  the  facts  stated  in  the  certi- 
ficate do,  by  that  law,  charge  the  party.11  If  the  certificate  does 
not  state  the  facts,  there  should  be  other  proof,  or  at  least  evi- 
dence that  by  the  same  law  such  a  general  certificate  is  suffi- 
cient.12 

Where  protest  is  competent,  but  not  the  only  competent  evi- 
dence, extrinsic  evidence  of  necessary  facts  not  sufficiently  stated 
in  it,13  and  not  inconsistent  with  it,  is  competent.  A  protest,  when 
exclusively  relied  on  to  prove  the  necessary  facts,  must  contain 
sufficient  averments  that  everything  requisite  has  been  done  to 
authorize  the  demand  upon  the  indorser;14  but  the  court  will 
make  all  reasonable  presumptions  of  detail  in  aid  of  the  certificate 
which  are  justified  by  the  language  of  its  statements  ; 15  yet,  should 
not,  in  general,  presume  a  precedent  act  like  demand,  from  a 


1  Rogers  v.  Jackson,  19  Wend.  383. 

2  Kirtland  v.  Wanzer,  2  Duer,  278. 

8  Curtis  v.  Buckley,  14  Kans.  449.  Compare  2  Dan.  Neg.  Inst.  18.    Contra,  2  Pars, 
on  Pr.  N.  <fcc.  498. 

4  Brandon  v.  Loftus,  4  How.  127. 

5  Cayuga  Co.  Bank  v.  Hunt,  2  Hill,  635. 

6  Estep  v.  Cecil,  6  Ohio  St.  536,  and  cases  cited. 
1  Gawtry  v.  Doane,  51  N.  Y.  89. 

8  Note  6  p.  427  (above),  §  923. 

9  Dunn  v.  Devlin,  2  Daly,  122. 

10  See  note  above,  §  925. 

11  Lnwson  v.  Piuckney,  40  Super.  Ct.  (J.  <fe  S.)  187 
'*Id. 

13  Nailor  v.  Bowie,  8  Md.  251. 

14  People's  Bank  of  Baltimore  v.  Brook,  31  Md.  7,  s.  c.  1  Am.  R.  11. 

15  See  2  Dan.  Neg.  Inst.  §  962,  964. 


428  ACTIONS  ON  NEGOTIABLE  PAPER. 

statement  of  a  subsequent  act  like  notice ;  nor  matters  of  fact, 
like  inquiries,  from  a  mere  legal  conclusion,  such  as  an  allegation 
of  due  diligence.  The  protest,  when  admitted,  is  prima  facie 
but  not  conclusive  *  evidence  of  the  facts  stated,  and  within  the 
official  power  and  duty  of  the  notary.  Any  statement  in  it  may 
be  rebutted  by  any  competent  testimony.2  If  the  certificate 
states  what  is  necessary,  the  fact  that  the  notary  or  clerk  called 
as  a  witness  has  no  recollection,  does  not  impair  its  effect. 

74.  Sealed  Certificate^ — The  notary's  official  seal  is  sufficient 
prima  facie  evidence  of  the  authenticity  of  the  certificate.     The 
courts  take  judicial  notice  of  the  seal,  and  it  proves  itself  by  its 
appearance  8  in  any  part  of  the  certificate.4    But  it  may  be  con- 
troverted as  fictitious  or  improperly  affixed.5    A  seal  printed,6  or 
scrawled,7  is  not  enough  at  common  law  ;    but  an  impression  in 
the  paper  is  prima  facie  sufficient ; 8  and  it  will  be  presumed  to 
have  been  affixed  according  to  the  law  of  the  country  where  the 
dishonor  occurred,  until  there  is  something  to  impeach  it.9 

75.  Unsealed  Certificate."] — If  the  certificate  is  not  under  the 
notary's  seal,  or  not  made  by  the  notary  in  person,  it  does  not 
prove  itself,  and  there  must  be  extraneous  evidence  to  show  that 
it  was  duly  made  by  the  person  officiating,  and  that   by  the 
law  of  the  country  where  it  was  made,  it  is  sufficient  without  a 
seal.10 

76.  Copy.~] — A  duly  authenticated  duplicate  protest,11  or   a 
verified  copy,12  drawn  up  from  the  notary's  book,  is  admissible 
secondary  evidence  in  lieu  of  the  original  sent  abroad.     If  the 
statute  makes  a  certified  copy  of  the  record  admissible  evidence,  it 
is  not  necessary  to  account  for  the  non-production  of  the  original.13 
Testimony  as  to  the  form  of  notice  the  notary  was  accustomed 
to  use,  and  a  copy  of  his  blank,  are  competent  secondary  evi- 
dence in  connection  with  evidence  that  he  sent  the  usual  notice. 

77.  Secondary  evidence  of  statutory  certificate.'] — But  where 
the  competency  of  the  certificate  depends  on  the  statute,  the  neces- 
sary facts  cannot  be  proved  by  showing  that  a  notary's  certificate 

I  Nelson  v.  Fotterall,  8  Leigh,  118. 
4  2  Dan.  Neg.  Inst.  §  959. 

3  United  States  v.  Libby,  1  Woodb.  &  M.  221,  and  cases  cited ;  2  Dan.  Neg.  Inst 
§  945.     Contra,  as  to  foreign  notaries,  1  Whart.  Ev.  286,  §  320;  not  sound  here. 

4  Olcott  v.  Tioga  R.  R.  Co.  27  N.  Y.  546,  affi'g  40  Barb.  179. 
6  2  Dan.  Neg.  Inst.  §  945. 

6  Richard  v.  Boiler,  "(5  Daly,  460,  s.  c.  51  How.  Pr.  371. 

7  Rosa  v.  Bedell.  5  Duer,  462,  and  cases  cited. 

8  And  is  sufficient  by  statute  in  N.  Y.     2  N.  Y.  R.  S.  276,  §  10 ;  Id.  404,  §  61. 

9  Id.  §  947.     As  to  defective  seal,  see  Re  Phillips,  14  Nat.  Bkcy.  Reg.  219,  and 
cases  cited;  Donegan  v.  Wood,  49  Ala.  242,  s.  c.  20  Am.  R.  280. 

10  2  Dan.  Neg.  Inst.  g§  946,  948. 

II  Geralspulo  v.  Wieler,  10  C.  B.  690,  715,  8.  c.  20  L.  J.  C.  P.  105  ;    Phillips  v. 
Poindexter,  18  Ala.  579. 

12  Halliday  v.  McDougall,  20  Wend.  81 ;  Mauri  v.  Heffernan,  13  Johns.  58. 
JS  McAfee  v.  Doremus,  5  How.  53. 


ACTIONS  AGAINST  INDORSEES,  Ao.  429 

of  those  facts,  once  existed,  and  has  been  lost,  and  then  proving  its 
contents.  The  statute  makes  the  certificate  evidence  ;  which  is 
an  innovation  on  the  common  law.  If  the  certificate  itself  is  not 
produced,  the  statute  is  not  complied  with,  and  common  law  evi- 
dence of  the  presentment,  &c.,  must  be  given.1 

78.  Memoranda  to  refresh  memory  ^\ — Under  the  rule  already 
stated,3  the  person  who  did  any  act  to  charge  the  indorser,  may 
refresh  his  memory  by  reading  his  contemporaneous  entry  ;   but 
to  render  his  testimony  sufficient,  either  the  fact  must  appear 
stated  in  the  entry,  or  he  must  be  able  to  remember  it.      His  ar- 
gumentative belief  that  a  fact  not  stated  must  have  existed,  be- 
cause he  would  not  have  entered  other  facts  if  it  had  not,  is  not 
enough.3 

79.  Memoranda  of deceased  person.] — In  cases  where  produc- 
tion of  protest  is  not  essential,   the  entries  and  memoranda, 
whether  in  his  book  or  on  the  instrument,4  made  by  the  notary 
or  his  clerk,  or  a  bank  officer,5  or  messenger,6  since  deceased, 
whose  obligation  it  was  to  do  the  act,  and  who  made  the  memo- 
randum contemporaneously  in  the  course  of  his  duty,  are  com- 
petent as  memoranda  in  the  usual  course  of  business,7  or  to  re- 
fresh memory,8  to  prove  facts  so  done.      It  is  no  objection  that 
the  person  was  a  notary,9  and  notarial  protest  was  unnecessary  or 
not  effectually  accomplished.10    Hence  a  protest  of  an  inland  bill 
or  a  note,  even  if  not  admissible  by  statute  as  primary  evidence, 
is,  after  the  notary's  death,  competent  secondary  evidence,  as  a 
memorandum  made  in  the  usual  course  of  business.11     If  the  per- 
son who  made  the  entry  is  living  his  testimony  must  be  adduced.12 
The  entry  can  prove  no  more  than  what  it  states  ;  and  if  it  omits 
to  state  the  residence  of  the  indorser,  the  post-office  to  which 
notice  was  addressed,  or  any  other  material  fact,  it  cannot  be 
inferred.13 

Experts  may  be  called  to  decipher  abbreviated  and  elliptical 
entries  in  the  book  of  a  notary  who  is  deceased,14  as  distinguished 
from  testifying  what  the  construction  is.15 


1  Dutchess  County  Bank  v.  Ibbotson,  5  Den.  110. 
J  Page  320  of  this  vol.     Sasscer  v.  Farmers'  Bank,  4  Md.  409. 
*  Gaylor  v.  Stringer,  1  Hilt.  337.     Compare  Bank  of  Columbia  v.  McKenney,  3 
CranchC.  Ct.  361. 

4  Hart  v.  Wilson,  2  Wend.  513. 

8  Nichols  v.  Goldsmith,  1  Wend.  160,  and  cases  cited. 

6  Welsh  v.  Barrett,  15  Mass.  380. 

'  Nicholls  v.  Webb,  8  Wheat.  326  ;  Halliday  v.  McDougall,  20  "Wend.  85. 

8  Cole  v.  Jessup,  10  N.  Y.  100.     See  the  rules  as  to  such  mem.  on  pp.  331,  332,  of 
this  vol.,  and  Lewis  v.  Kramer,  3  Md.  265. 

9  Gawtry  v.  Doane,  51  N.  Y.  84,  affi'g  48  Barb.  148. 

10  Cole  v.  Jessup  (above). 

11  Porter  v.  Judson,  1  Gray,  175,  SIIAW,  Ch.  J. 
"  Wilbur  v.  Selden,  6  Cow.  162. 

13  2  Dan.  Neg.  Inst.  §  1057,  and  cases  cited.     Paragraphs  73  and  78  (above). 

14  Sheldon  v.  Benham,  4  Hill,  129. 

1*  Compare  Duncan  v.  Watson,  10  Miss.  121. 


430  ACTIONS  ON  NEGOTIABLE  PAPER. 

80.  Legal  notice  to  charge  indorser.~\ — Notice  may  be  shown, 
either  directly,  by  evidence  of  actual  notice  seasonably  received 
by  defendant  j1  or  by  evidence  of  due  diligence  by  the  holder  in 
sending  notice ; 2  or  indirectly,  by  evidence  that  defendant  has 
expressly  or  irnpliedly  admitted  that  he  had  due  notice.8 

81.  Identity  of  person  served.] — The  same  rules  as  to  the  evi- 
dence of  the  identity  of  the  person  served  apply  as  in  case  of  the 
person  on  whom  demand  is  made,4    and,   if    anything,   more 
freely,  because  the  defendant  charged  can  the  better  rebut  the 
evidence. 

82.  Executors  and  Administrators, .] — To  charge  the  estate  of 
a  deceased  person  on  his  indorsement,  matured  after  his  death, 
the  holder  must  show  service  of  the  notice  at  the  last  residence, 
or  last  place  of  business  of  the  deceased,  or  on  the  executor 
named  in  the  will,  if  any  ;  or  on  one  who  actually  at  the  time  is 
administrator,  or  special  administrator.     Service  on  one  who  was 
named  executor  in  the  will,  and  who  had  been  removed  or  re- 
nounced, is  not  sufficient,  if  it  appear  that,  with  reasonable  dili- 
gence,  the  holder  might  have  ascertained  the  existence  of  a 
special  administrator,  who  was  the  proper  person  to  receive  the 
notice.5 

83.  Time  of  service.'] — If  plaintiff  relies  on  direct  evidence  of 
notice,  whether  actual  or  constructive,  he  must  distinctly  show 
that  it  was  given  on  the  proper  day.6    It  will  not  suffice  to  show 
that  it  was  given  on  one  of  two  days,  if  the  latter  would  be  too 
late.7 

84.  Actual  noticed] — To  show  actual  notice  an  oral  communi- 
cation may  be  proved  ; 8  but  evidence  of  mere  knowledge,9  or  of 
notice  from  a  stranger,10  is  not  enough. 

If  a  number  of  parties  were  entitled  to  notice,  it  is  sufficient 
to  charge  any  one,  to  show  that  notice  actually  reached  him  in 
such  a  time  as  would  be  required  for  the  intermediate  parties  to 
transmit  it  to  him  in  the  usual  course  of  the  mail,  allowing  each 
one  his  day.11  But  the  courts  need  not  take  judicial  cognizance 
of  the  course  of  the  mails.13  That  should  be  shown  by  the  party 


1  Paragraph  84. 

*  Paragraphs  85—90. 

I  Hyde  v  Stone,  20  How.  U.  8.  170 ;  2  Dan.  Neg.  Inst.  §  1050. 
4  See  paragraph  70.     Hunt  v.  Maybee,  7  N.  Y.  266. 

*  Goodnow  v.  Warren,  122  Mass.  79,  s.  c.  23  Am.  R.  289,'  and  cases  cited.     Com- 
pare Maspero  v.  Pedesclaux,  22  La.  Ann.  227,  s.  c.  2  Am.  R.  727. 

6  Friend  v.  Wilkinson,  9  Gratt.  31. 

7  2  Dan.  Neg.  Inst.  §  1051. 

8  Woodin  v.  Foster,  16  Barb.  146  ;  Cuyler  v.  Stevens,  4  Wend.  566. 

*  Rose.  N.  P.  371. 

10  Walmsley  v.  Acton,  44  Barb.  812 ;  2  Dan.  Neg.  Inst.  §  988. 

II  2  Dan.  Neg.  Inst.  §  1053.     Compare  Sheldon  v.  Benham,  1  Hill,  429,  and  Van 
Brnnt  v.  Vaughn,  7  Reporter,  397,  s.  c.  47  Iowa. 

18  See  Early  v.  Preston,  1  Patt  &  H.  (Va.)  228. 


ACTIONS  AGAINST  INDORSEES,  <fco.  431 

relying  on  it.  It  would  be  better  for  plaintiff  to  show  also  that 
he  gave  notice  in  due  season  to  his  immediate  indorser.  When 
he  has  shown  that  notice  reached  the  remote  party  within  the 
time  which  would  regularly  be  consumed,  it  will  be  for  the 
latter  to  show  a  defective  link  in  the  chain  of  notices,  if  any 
there  be.1 

A  denial  of  receiving  notice  may  be  sustained  by  testimony 
of  a  clerk  or  cashier,  leaving  it  to  cross-examination  to  inquire 
into  his  means  of  knowledge.2 

85.  Due  diligence  by  the  holder.'} — If  it  be  shown  that  due 
and  legal  diligence  was  used  by  the  holder  in  sending  notice,  a 
conclusive  legal  presumption  of  notice  attaches,   or,  in  other 
words,  the  fact  that  the  notice  was  never  received  becomes  im- 
material.3 

86.  Place  of  directing  notice.~] — The  place  of  date  of  the  in- 
strument is  prima  facie  but  not  conclusive  evidence,  for  the 
purpose  of  notice,  that  the  maker  or  drawer  resides  there.4    And 
coupled  with  other  circumstances,  it  may  be  evidence  of  the  res- 
idence of  the  indorser.     Such  circumstances  should,  however,  be 
strong  and  persuasive,  for  there  is  no  prima  facie  presumption 
that  an  indorser  resides  at  the  place  of  date,  or  at  the  place  of 
payment.5    A  certificate  of  service,  specifying  the  reputed  res- 
idence to  which  the  notice  was  sent,  is  prima  facie  evidence  of 
the  reputed  place  of  residence  of  the  party  notified.6     But  the 
place  of  residence  or  business  is  not  sufficiently  shown  by  the 
notary's  certificate,  merely  that  he  mailed  the  notice  addressed 
to  the  indorser  at,  &c.7 

The  better  opinion  is,  that  in  all  cases,  no  matter  how  long 
the  paper  had  to  run,  notice  addressed  to  the  indorser  at  the 
place  where  he  resided  when  he  made  the  indorsement  is  suffi- 
cient to  charge  him,  although  he  may  have  changed  his  residence, 
unless  it  be  shown  that  the  holder  had  received  information  of 
the  change  of  residence.8 

An  erroneous  address  may  be  sustained  by  evidence  that  the 
party  held  himself  out  as  resident  there,9  or  directly  caused  the 
mistake  by  the  manner  of  his  own  writing,10  so  as  to  be  estopped 
from  objecting. 

1  2  Dan.  Neg.  Inst.  §  1053. 

1  Union  National  Bank  v.  Sixth  National  Bank,  1  Lans.  13  ;  43  N.  Y.  452. 

*  Dickens  v.  Beal,  10  Pet.  572,  582. 

4  2  Dan.  Neg.  Inst  §  1030.  It  is  a  slight  presumption.  Lowery  v.  Scott,  24  Wend.358. 

6  Id.  §  1031. 

6  Bell  T.  Lent,  24  Wend.  230,  NELSON,  Ch.  J. 

7  Bradshaw  v.  Hedge,  10  Iowa,  402  ;  Kaine  v.  Rice.  2  Patt.  A  H.  (Va.)  529 ;  Tur- 
ner v.  Rogers,  8  Ind.  139;  U.  S.  Bank  v.  Smith,  11  Wheat.  171.     But  a  certificate 
that  he  notified  the  indorser  by  mailing  a  notice  to  him  addressed  at,  <fcc.,  has  been 
held  sufficient,  within  the  rule  stated  in  the  text.     Wamsley  v.  Rivers,  34  Iowa,  463. 

8  Requa  v.  Collins,  51  N.  Y.  144,  148,  approved  in  2  Dan.  Neg.  lust.  §  1032. 

9  2  Dan.  Neg.  Inst.  §  1029. 

10  Manu£  <fcc.  Bank  v.  Hazard,  30  N.  Y.  226. 


432  ACTIONS  ON  NEGOTIABLE  PAPER. 

87.  Due  diligence  in  inquiry. ,] — The  parties  through  whoso 
hands  negotiable  paper  has  passed,  are  presumed  to  know  the 
residence  of  the  parties  from  whom  they  received  it,  and  of  the 
prior  parties ;    and  therefore  evidence  that  they  were  properly 
applied  to  for  information,  and  assumed  to  know,  justifies  acts 
done  upon  information  given  by  them.1    Diligence  is  not  shown 
by  merely  consulting  the  directory,  when  other  sources  of  ac- 
curate information  may  be  within  the  convenient  reach  of  the 
person  whose  duty  it  may  be  to  secure  it,  through  which  it  can 
be  obtained.2    The  notary's  testimony  that  he  made  diligent  in- 
quiry and  ascertained  the  reputed  residence,  &c.,  is  sufficient  to 
go  to  the  jury,  if  not  objected  to  as  too  general.3    Details  may  be 
called  out  on  cross-examination. 

88.  Evidence  of  the  contents  of  the  notice.'] — The  fact  that 
notice  was  given  in  writing  does  not  preclude  oral  or  other  evi- 
dence of  the  giving  of  due  notice  (either  by  direct  testimony4  or 
by  putting  in  evidence  a  duplicate) ; 5  and  producing  or  giving 
notice  to  produce  the  original  is  not  necessary.     But  tnere  should 
be  sufficient  evidence  of  the  contents  of  the  written  notice  relied 
on  to  show  that  it  was  due  notice.6    But  it  is  not  essential  to 
prove  in  detail  the  exact  contents  of  the  notice  ;  general  testi- 
mony, especially  from  the  notary,  may  be  enough.7 

89.  Extrinsic  evidence  as  to  imperfect  notice.'] — Where  the 
notice  served  is  erroneous  in  some  particulars,  rendering  it  am* 
biguous  on  its  face,  evidence  is  admissible,  to  show  that  there  was 
only  one  note  or  bill  to  which  it  could  possibly  have  applied.8 
Evidence  of  defendant's  knowledge  of  the  circumstances,  is  com- 
petent, for  the  purpose  of  showing  that  he  could  not  have  been 
misled.9    Even  when  the  notice  is  defective,  it  may  be  shown  by 
extrinsic  evidence  that  the  indorser  was  not  misled  as  to  the  iden- 
tity of  the  dishonored  note  ;10  and  if  the  notice  be  correct  and  suf- 
ficient in  view  of  the  note  or  bill  which  it  describes,  it  cannot  be 
rendered  invalid  by  showing  aliunde  that  notes,  similar  in  par- 
ties, date,  amount,  and  time  and  place  of  payment,  were  out- 
standing, and  were  only  distinguishable  from  each  other  by  their 
numbering.11 

1  Beale  v.  Parrish,  20  N.  Y.  407,  rev'g  24  Barb.  243  ;    Lawrence  v.  Miller,  16  N. 
Y.  235. 

2  Greenwich  Bank  Y.  DeGroot,  7  Han,  213. 

3  Carroll  Y.  Upton,  3  N.  Y.  (3  Comst.)  272. 

4  Lindenberger  v.  Beall,  6  Wheat.  104;  Rose.  N.  P.  376 ;  Johnson  Y.  Haight,  13 
Johns.  470.     This  is  so  whether  the  notice  is  given  by  a  notary  public  or  a  private 
person.     Scott  v.  Betts,  Hill  &  D.  Supp.  363. 

5  2  Dan.  Neg.  Inst.  §  1051. 

6  Id.     Smith  v.  Hill,  6  Wis.  154. 

7  Dickens  v.  Beal,  10  Pet.  572  ;  and  see  Lindenberger  v.  Beall,  6  Wheat.  104. 

«  Cayuga  County  Bank  v.  Warden,   6  N.  Y.  19,  reaffi'g  1  Id.  413.     Compare  1 
Pars,  on  Pr.  N.  474. 

»  Cook  v.  Litchfield,  9  N.  Y.  279. 
10  Hodges  v.  Shuler,  22  N.  Y.  114,  affi'g  24  Barb.  68. 
"Id. 


ACTIONS  AGAINST  INDORSEES,  Ac.  433 

90.  Mailing.'] — Where  the  holder 1  and  the  party  to  be  charged 
by  the  notice,  reside  in  different  places,  or  the  party  entitled  to 
notice  resides  at  a  place  other  than  the  particular  place  at  which 
the  bill  or  note  is  payable,  or,  after  diligent  inquiry  was  supposed, 
though  erroneously,  to  so  reside,2  it  is  in  general,  sufficient  to 
prove  notice  of  dishonor  duly  addressed,  and  mailed  within  the 
proper  time.     This  done,  the  fact  that  the  notice  was  not  re- 
ceived, is  irrelevant.3     The  usage  of  a  bank,  if  relied  on  to  sus- 
tain service  by  mail  on  persons  residing  in  the  same  place  should 
be  proved  by  clear  and  satisfactory  evidence,  so  that  it  may  be 
presumed  that  the  parties  had  reference  to  it  in  contracting.4 

In  addition  to  rules  already  stated  as  to  communications  by 
mail,5  it  may  be  observed  that  when  one  relies  on  mailing  he  must 
show  the  mailing  to  have  been  in  time  to  be  timely  received  ac- 
cording to  the  ordinary  course.6  The  court  is  not  bound  to  take 
judicial  notice  of  the  course  of  the  mails,  nor  of  the  time  required 
for  a  letter  to  go  from  one  post-office  to  another.7  In  support  of 
mailing,  as  due  diligence,  plaintiff  may  give  evidence  of  the  usual 
course  of  the  mails,  and  the  knowledge  of  the  post-office  authori- 
ties and  other  circumstances  throwing  light  on  the  question 
whether  the  notice,  as  addressed  and  mailed,  was  reasonably  dili- 
gent, within  the  rule,8  or  even  for  the"  purpose  of  raising  a  pre- 
sumption that  the  notice  was  actually  received,  although  due  dili- 
gence was  not  used.9 

A  notary's  certificate  that  notice  was  mailed,  if  competent, 
raises  a  presumption  that  the  postage  was  paid.10  Such  a  certifi- 
cate that  it  was  "  mailed  for  "  the  indorser  raises  a  presumption 
that  it  was  directed  to  him.11 

91.  Inference  of  delivery  or  mailing,  from  ordinary  course  of 
'business.'] — It  is  not  necessary  to  show,  by  direct  evidence,  that 
the    particular  letter    containing  the   notice   was  put  into  the 
mail.     It  may  be  inferred  from  indirect  evidence,  such  as  that 
it  was  put  with  letters  for  the  post-office  by  one  clerk,  and  that 
the  letters  of  that  day  were  deposited  by  another  clerk  ;  or  that 
it  was  put  with  letters  customarily  made  up  in  the  usual  course 


1  See  Bowling  v.  Harrison,  6  How.  (IT.  S.)  259. 

*  Saco  Nat.  Bank  v.  Sanborn,  63  Mo.  340,  s.  c.  18  Am.  R.  224. 

J  Bussard  v.  Levering,  6  Wheat.  102;  Rose.  N.  P.  374. 

4  Bowling  v.  Harrison,  6  How.  (U.  S.)  259 ;  2  Dan.  Neg.  Inst.  §  1013. 

6  Page  29 1  of  this  vol. 

6  The  presumption  that  notice  of  protest,  <fec.,  sent  by  mail,  reached  the  person 
addressed,  ends  when  the  mode  of  conveyance  is  irregular  and  illegal,  and  the  mail 
may  not  be  carried  at  all,  and  when  it  is  known  that  the  regular  mail  has  been  in- 
definitely suspended.  Donegan  y.  Wood,  49  Ala.  242,  s.  o.  20  Am.  R.  279,  and  cases 
cited. 

1  Early  v.  Preston,  1  Patt.  A  H.  (Va.)  228. 

8  Dickens  v.  Beal,  10  Pet.  579. 

•Id. 

10  Brooks  v.  Day,  11  Iowa,  46. 

11  Smith  v.  Jane's,  20  Wend.  192 ;  and  see  Dunn  v.  Devlin,  2  Daly,  122. 

28 


434:  ACTIONS  ON  NEGOTIABLE  PAPER. 

of  business  for  the  postman,  and  that  he  invariably  carried  all  the 
letters  found  upon  the  table.1  Where  service  is  thus  proved  by 
presumption  from  the  ordinary  course  of  business,  the  testimony 
of  each  person  through  whose  hands  in  ordinary  course  the  letter 
would  have  passed  to  the  mail  or  to  the  custody  of  the  postman, 
should  be  adduced,2  but  it  is  not  essential  that  each  remember 
the  particular  letter,  and  be  able  to  negative  its  loss,  &c.8 

02.  Admissions  of  demand  made  and  notice  received.] — The 
protest  may  be  proved  by  the  express  admission  of  the  party 
sought  to  be  charged,  without  producing  the  notary  or  his  certifi- 
cate.4 Such  an  admission,  though  strong  evidence,  is  not  conclu- 
sive, even  if  written,  but  he  may  show  that  the  paper  was  signed 
under  mistake,5  unless  another  person  has  been  induced  to  alter 
his  condition  thereby.6 

An  admission  of  liability,  whether  express 7  or  implied,8  or  by 
a  promise,  made  to  the  holder,  or  to  a  third  person,9  if  shown  to 
have  been  made  subsequent  to  the  dishonor,  is  competent  evi- 
dence from  which  to  inter  due  demand,  presentment  and  notice.10 
Part  payment  after  maturity,  by  the  drawer  or  indorser,  is  an  ac- 
knowledgment of  liability;  and  if  unexplained  is  presumptive 
evidence  against  him  of  demand  and  notice.  And  if  it  be  shown 
that  such  part  payment  was  made  with  knowledge  of  laches  of 
the  holder,  it  constitutes  a  waiver.11 

The  burden  of  proof  is  upon  the  plaintiff  to  show  clearly  and 
distinctly  the  acknowledgment  of  liability  or  promise  to  pay; 
but  it  matters  not  what  particular  phrase  was  used,  if  it  amounted 
to  such  acknowledgment  or  promise.  If  the  promise  was  quali- 
fied by  a  condition,  evidence  of  its  acceptance,  or  of  performance 
of  the  condition,  is  necessary  to  make  it  available  as  a  waiver ; tt 
but  without  such  evidence,  it  is  competent  in  connection  with 
other  circumstances,  as  tending  to  show  that  due  demand  was 
made  and  notice  given.13 

When  the  admission  or  promise  is  adduced  as  evidence  that 


1  2  Dan.  Neg.  Inst.  §  1054. 
8  See  Hawkea  v.  Salter,  4  Bing.  715. 

8  Commercial  Bank  v.  Strong,  28  Vt.  316  ;  Hetherington  v.  Kemp,  4  Campb.  193. 
Compare  Bradley  v.  Davis,  25  Me.  49. 
4  Derrickson  v.  Whitney,  6  Gray,  248. 
6  Commercial  Bank  of  Albany  v.  Clark,  28  Vt.  325. 
6  Heane  v.  Rogers,  9  Barn.  <fe  Cress.  577. 

I  Rose.  N.  P.  874. 

8  As,  for  instance,  by  including  the  bill  in  the  indorser's  schedule  of  debts  in  in- 
solvency,  Hyde  v.  Stone,  20  How.  U.  S.  170;  or  in  an  account  stated,  Bank  of  U.  S. 
V.  Lyman,  20  Vt.  666;  or  allowing  judgment  to  go  by  default  in  an  action  brought  by 
a  former  holder  of  the  same  bill.     Rabey  v.  Gilbert,  6  H.  <fc  N.  636;  L.  J.  80  Ex. 
170;  cited  in  Rose.  N.  P.  382. 

9  Potter  v.  Ray  worth,  73  East,  417;  Rose.  N.  P.  382. 

10  Lewis  v.  Brehme,  33  Md.  412,  s.  c.  3  Am.  R.  190.  „ 

II  2  Dan.  Neg.  Inst.  §  1165. 
»  Id  §  1162. 

11  Id.  8  1164. 


ACTIONS  AGAINST  INDORSEES,  Ao.  435 

notice  was  received,  and  not  as  evidence  of  a  contract  or  waiver, 
dispensing  with  the  right  to  notice,1  the  burden  is  on  the  party 
whose  admission  or  promise  is  adduced,  to  show  that  he  made  it 
without  knowledge  of  the  facts,  and  that  the  facts  were  not  suffi- 
cient to  charge  him.2 

93.  Indirect  evidence  of  notice.'] — Evidence  of  any  acts  and 
declarations  of  the  party  sought  to  be  charged,  which  tend  to 
show  that  he  had  received  notice  is  competent  in  aid  of  direct  evi- 
dence of  actual  notice  or  due  diligence,  such,  for  instance,  as  the 
fact  that  he  has  taken  back  the  original  consideration  of  the  dis- 
honored note ; 8  or  has  taken  indemnity ; 4  or  has  objected  to  pay- 
ing solely  on  other  grounds,5  and  the  like. 

94.  Waiver  of  demand  or  notice.] — If   the  holder  has  any 
legal  excuse  for  not  having  actually  made  demand  and  given 
notice,  it  lies  on  him  to  prove  it.6    But   such  evidence  is  not 
strictly  admissible  under  an  allegation  of  demand  or  notice.7 

The  waiver  may  be  proved  by,  1,  an  express  previous  assent  to 
omission  ;  or  2,  by  subsequent  promise  with  full  knowledge  ;  or 
3,  by  evidence  that  defendant  gave  the  holder  notice  that  the  paper 
would  not  be  paid,  and  promised  to  make  it  good,  even  though 
such  notice  did  not  reach  the  holder  so  as  to  influence  his  action 
as  to  demand,  &c.8 

Evidence  that  the  indorser,  with  full  knowledge  of  the  laches, 
unequivocally  assented  to  continue  his  liability,  or  to  be  responsi- 
ble as  though  protest  had  been  made,  establishes  a  waiver  of 
omission  to  demand  and  give  notice.9  The  assent  must  be  clearly 
established,  and  will  not  be  inferred  from  doubtful  or  equivo- 
cal acts  or  language.10  An  express  promise  to  pay,  made  after  dis- 
charge, and  with  full  knowledge,  is  enough.  But  it  is  not  neces- 
sary to  prove  an  express  promise.  Any  transaction  between  him 
and  the  holder  is  enough,  which  clearly  indicates  this  inten- 
tion.11 

Where  a  subsequent  admission  or  promise  is  adduced  as  evi- 
dence of  a  waiver  of  omission,  as  distinguished  from  using  it  as 
evidence,  that  there  was  no  omission,  plaintiff  must  show  that  it 


1  See  Rose.  N.  P.  374. 

8  Lewis  v.  Brehme  (above);  Tebbetts  v.  Dowd,  23  "Wend.  379. 

3  Andrews  v.  Boyd,  3  Mete.  434. 

*  Ross  v.  Planters'  Bank,  5  Humph.  335. 

8  Curlewis  v.  Corfield,  1  Q.  B.  814,  s.  c.  6  Jur.  259;  1  G.  A  D.  489. 

8  United  States  v.  Barker,  4  Wash.  C.  Ct.  464. 

7  Paragraph  65.     Contra,  in  some  States.     Harrison  v.  Bailey,  99  Mass.  620,  and 
approved  by  2  Dan.  Neg.  Inst.  8  1049;  and  see  14  Wall.  874. 

8  Yeagcr  T.  Farwell,  13  Wall.  13. 
»  Ross  v.  Hurd,  71  N.  Y.  18. 

10  Ross  v.  Hurd  (above). 

11  Ross  v.  Hurd  (above) ;  such  as  saying,  "  I  will  waive  protest.1'     Id.     Or  agree- 
ing to  consider  the  demand  and  notice  as  made  in  due  time,  and  himself  liable  as  in- 
dorser.    Duryea  v.  Dennison,  5  Johns.  248. 


436  ACTIONS  OX  .NEGOTIABLE  PAPER. 

was  made  with  full  knowlege  of  the  omission.1  The  weight  of 
authority  is  that  in  order  to  sustain  a  waiver  by  subsequent 
promise,  defendant's  knowledge  that  he  had  not  received  regular 
notice  may  be  inferred,  as  a  fact,  from  the  promise  under  the  at- 
tending circumstances  without  requiring  clear  and  affirmative 
proof  of  knowledge.2  Evidence  of  a  consideration  for  waiver  is 
not  necessary.3 

Even  a  previous  written  waiver  may  be  explained  by  parol,4 
within  the  limits  elsewhere  stated.5  Where  there  is  on  the  face 
of  the  instrument  a  written  waiver  of  either  act — demand  or 
notice — oral  evidence  is  competent  to  show  that  there  was  also 
a  verbal  waiver  of  the  other  act.6 

95.  Want  of  funds  as  an  excuse.] — If  a  holder  seeks  to  rely 
on  want  of  funds  as  an  excuse  for  omission  to  demand  and  give 
notice,  the  burden  of  proof  is  on  him  to  show  that  there  were  no 
funds  in  the  hands  of  the  drawee  to  meet  the  bill ;  and  this  he 
must  do  by  affirmative  proof,  as  it  will  be  presumed  that  there 
were   funds,  although  the  bill  was  dishonored.     Having  shown 
that  there  were  no  funds,  a,prima facie  excuse  is  made  out;  and 
if  there  were  qualifying  circumstances  entitling  the  drawer  to  re- 
quire strict  presentment  and  notice — such  as  his  being  an  accom- 
modation drawer,  or  keeping  an  open  account,  and  the  like — he 
must  show  them,  for  they  lie  peculiarly  within  his  own  knowl- 
edge.7   Evidence  that  an  indorser  had  funds  which  he  might  law- 
fully have  applied  to  payment,  but  did  not  receive  or  hold  solely 
for  the  purpose,  is  not  necessarily  an  excuse  for  omission  to  give 
him  notice ;  but  is  enough  -to  go  to  the  jury.8 

YII. — IRREGULAR  INDORSEMENT. 

96.  Payee  against  irregular  indorser:  New  York  doctrine."] — 
Evidence  that  defendant  wrote  his  name  on  the  back  of  the  note 
before  its  delivery  to  the  payee,  without  any  extrinsic  evidence 
of  intention  in  so  doing,  raises  a  legal  but  not  conclusive  pre- 
sumption that  he  did  so  for  the  payee's  accommodation,  intend- 


•  J  Tebbetts  v.  Dowd,  23  Wend.  379 ;  Walker  v.  Rogers,  40  HI.  278.  Contra,  Loose 
v.  Loose,  36  Penn.  St.  538,  compare  Wade  on  Notice,  429,  and  2  Dan.  Neg. Inst.  §§  1 152 
and  1157. 

Knowledge  of  the  law  or  the  legal  liability,  as  distinguished  from  the  fact,  need 
not  be  shown.  Matthews  v.  Allen,  16  Gray,  594. 

8  Tebbetts  v.  Dowd,  23  Wend.  379,  and  cases  cited. 

8  2  Dan.  Neg.  Inst.  §  1147.  The  contrary  opinion  ia  urged  in  4  So.  L.  Rev.  426,  aa 
to  cases  where  the  defendant  shows  that  he  was  in  fact  injured  by  the  omission. 

4  Union  Bank  v.  Hyde,  6  Wheat.  572 ;  Porter  v.  Kimball,  53  Barb.  467,  compare 
Ayrault  v.  Pacific  Bank,  47  K  Y.  570. 

6  Buckley  v.  Bentley,  48  Barb.  283 ;  s.  r.  in  a  previous  decision,  42  Id.  646,  pages 
294,  409,  of  this  vol. 

6  2  Dan.  Neg.  Inst.  §  1098 ;  see  also  p.  294  of  this  voL 

1  2  Dan.  Is7eg.  Inst.  §  1084. 

8  Ray  v.  Smith,  17  Wall.  411. 


IRREGULAR  INDORSEMENT.  437 

ing  to  become  indorser  subsequent  to  the  payee ;  that  he  knew 
the  indorsement  of  the  payee  must  be  given  before  the  note 
could  become  operative,  and  indorsed  the  note  on  that  under- 
standing.1 On  the  face  of  the  paper,  therefore,  without  extrinsic 
evidence,2  he  cannot  be  held  liable  at  suit  of  the  payee,  or  of  any 
one  suing  in  behalf  of  the  payee,  or  who  has  taken  title  from 
the  payee  after  maturity,3  or  with  knowledge  of  the  facts.4 

As  between  the  parties  and  those  subject  to  their  equities, 
oral  evidence  is  competent  to  rebut  this  presumption  by  show- 
ing 5  that  the  indorsement  was  made  to  give  the  maker  credit 
with  the  payee,6  and  that  the  payee  parted  with  value  on  the  faith 
of  it.7  For  this  purpose  oral  evidence  is  admissible  to  show  the 
circumstances  under  which  the  note  was  made  and  indorsed,8  th* 
consideration  on  which  it  was  given,9  the  course  of  transactions 
between  the  parties,10  that  the  indorser  placed  his  name  on  the 
note  at  its  inception,  and  before  it  passed  to  the  plaintiff,11  &c., 
and  the  form  of  the  paper  itself  may  aid  the  presumption.12  Evi- 
dence of  the  indorsees  privity  with  the  negotiation  and  its  result 
is  competent,13  although  it  be  not  shown  that  he  knew  the  precise 
nature  of  the  credit  to  be  procured.14  Showing  that  he  indorsed 
with  knowledge  that  it  was  required  as  a  condition  of  credit  to 
be  given  the  maker,  is  enoughX 

1  This  58  the  New  York  Rule,  1  Abb.  N.  Y.  Dig.  new  ed.  492,  n. ;  Coulter  v.  Rich- 
mond, 59  N.  Y.  478.  It  is  applied  also  in  Indiana,  (Dale  v.  Moffitt,  22  Ind.  114); 
Iowa,  (Frear  v.  Dunlap,  1  Iowa,  335,  now  otherwise  by  statute  of  1851,  Knight  v. 
Dunsmore,  12  towa,  35);  Minnesota,  (Marienthal  v.  Taylor,  2  Minn.  147;  McComb 
v.  Thompson,  2  Id.  139);  Mississippi,  (Jennings  v.  Thomas,  13  Smedes  <fe  M.  617); 
Pennsylvania,  (Fegenbush  v.  Lang,  28  Perm.  St.  193  ;  Eilbert  v.  Finkbeiner,  68  Penn. 
St.  243,  s.  c.  8  Am.  R.  176);  and  Wisconsin,  (Cady  v.  Shepard,  12  Wis.  642,  followed 
in  13  Id.  229,  18  Id.  654). 

After  a  Jong  line  of  contrary  decisions  in  Massachusetts,  part  of  the  New  York 
rule  has  been  adopted  and  extended  in  that  State,  by  a  statute  entitling  the  indorser 
in  all  cases  to  demand  and  notice.  L.  1874,  c.  404. 

8  Lester  v.  Paine,  37  Barb.  617,  620.  In  New  Jersey  there  is  no  presumption 
either  way  without  extrinsic  evidence.  Chaddock  v.  Van  Ness,  85  N.  J.  L.  517,  s.  c. 
10  Am.  R.  256.  Compare  Laubach  v.  Pursell,  35  N.  J.  L.  434. 

3  Bacon  v.  Burnham,  37  N.  Y.  614. 

4  Phelps  v.  Vischer,  60  Id.  74. 

5  Under  proper  allegation.     Meyer  v.  Hibsher,  47  N.  Y.  265  ;    Gfroehner  v.  Mc- 
Carty,  2  Abb.  New  Cas.  76  ;    Draper  v.  Chase  Mfg.  Co.  Id.  79 ;    Smith  v.   Smith,  87 
Super.  Ct.  (J.  &  S.)  203. 

«  Coulter  v.  Richmond,  59  N.  Y.  481. 

7  Id ;  or  at  least  that  the  payee  gave  credit  or  forbearance  on  the  face  of  it. 

8  The  party  may  be  asked,  as  a  witness,  to  state  the  circumstances  under  which 
the  note  was  made.     Smith  v.  Smith,  37  Super.  Ct.  (5  J.  &  S.j  203. 

9  As,  for  instance,  to  enable  the  maker  to  buy  goods  of  the  payee,  Moore  v. 
Cross,  19  N.  Y.  227  ;  or  to  give  the  payee  a  security  for  a  pre-existing  debt,  Clothier 
v.  Aclrianci-,  51  N.  Y.  822. 

10  Coulter  v.  Richmond,  59  N.  Y.  478. 

11  Rey  v.  Simpson,  22  How.  (U.  S.)  341.    And  an  erasure  of  plaintiff's  own  in- 
dorsement may  be  explained.     Austin  v.  Boyd,  24  Pick.  64. 

18  As,  for  instance,  where  it  was  made  payable  at  the  payee's  house.  Coulter  v. 
Richmond  (above). 

18  Meyer  v.  Hibsher,  47  N.  Y.  268. 

14  Coulter  v.  Richmond,  59  N.  Y.  483. 

15  Meyer  v.  Hibsher  (above);  Luft  v.  Graham,  13  Abb.  Pr.  N.  S.  175,  178. 


438  ACTIONS  ON  NEGOTIABLE  PAPER. 

The  burden  is  on  plaintiff  to  show  that  the  true  relations  of 
the  parties  were  not  those  apparent  on  the  instrument.1 

If  it  appear  by  extrinsic  evidence  that  the  indorsement  was 
given  with  intent  to  give  the  maker  of  the  note  credit  with  the 
payee,  the  payee  may  sustain  his  action  against  the  indorser  as 
such.2  The  defendant  can  only  be  charged  as  indorser  by  dis- 
honor and  notice  or  waiver,  as  in  other  cases.8  It  is  not  neces- 
sary that  the  payee  actually  exercise  his  implied  right  to  over- 
write the  indorsement  with  his  own  indorsement  "  without 
recourse."  *  * 

97.  —  defenses.] — If  it  be  shown  that  the  payees  were  lona 
fide  holders  for  value  without  notice,  they  cannot  be  affected  by 
fraud  or  other  equities  between  the  maker  and  the  irregular  in- 
dorser.5 

98.  —  subsequent  transferee  against  irregular  indorser."] — If 
it  appear  that  the  transferee  knew  that  the  note  was  indorsed  by 
defendant  before  the  payee  overwrote  his  indorsement  without 
recourse,  the  transferee  cannot  recover  of  the  irregular  indorser 
without  the  same  extrinsic  evidence  which  the  payee  would  have 
to  give.6 

99.  The   United  States  Court   doctrine.~\ — In   the   Supreme 
Court  of  the  United  States,  the  irregular  indorser  is  held  to  be 
an  original  promisor,  a  guarantor,  or  an  indorser,  according  to 
the  nature  of  the  transaction  and  the  understanding  of  the  par- 
ties at  the  time  it  took  place  ;7  under  the  following  rules :  1.  If 
he  put  his  name  in  blank  on  the  back  of  the  note  at  the  time  it 
was  made,  and  before  it  was  indorsed  by  the  payee,  to  give  the 
maker  credit  with  the  payee,  or  if  he  participated  in  the  con- 
sideration of  the  note,  he  must  be  considered  as  a  joint  maker 
of   the   note.8      2.  If   his  indorsement  was  subsequent  to  the 
making  of  the  note  and  to  the  delivery  of  the  same  to  take 
effect,  and  he  put  his  name  there  at  the  request  of  the  maker, 
pursuant  to  the  contract   of  the  maker  with  the  payee  for 
further  indulgence  or  forbearance,  he  can  only  be  held  as  guaran- 
tor, which  can  only  be  done  where  there  is  legal  proof  of  consid- 


1  Hull  v.  Marvin,  2  Supra.  Ct.  420, 422.  It  is  a  general  rule  that  the  presumption 
is  that  the  liabilities,  <fec.,  of  parties  to  negotiable  paper  are  those  indicated  on  face 
of  the  paper.  Central  Bank  v.  Hammett,  50  N.  Y.  ]  68.  But  an  indorsee,  who  is  also 
a  prior  indorser,  can,  nevertheless,  recover  of  the  one  who  indorsed  to  him  where  it 
was  the  intention  of  the  parties  that  the  intermediate  indorser  should  be  liable  to 
him.  Hubbard  v.  Matthews,  54  N.  Y.  43,  48. 

4  1  Abb.  N.  Y.  Dig.  new  ed.  492,  n. 

3  Id.,  and  cases  above  cited,     Griswold  v.  Stoughton,  2  Oreg.  61.     Contra,  Drake 
T.  Markle,  21  Ind.  434. 

4  Moore  v.  Cross,  19  N.  Y.  227 ;  Chaddock  v.  Van  Ness,  35  N.  J.  517,  s.  c.  10  Am. 
R.  256. 

8  Clothier  v.  Adriance,  61  N.  Y.  326. 
•  Phelps  v.  Vischer,  50  N.  Y.  74. 

T  Good  v.  Martin,  95  U.  S.  (5  Otto),  90,  94,  affi'g  1  CoL  165,  2  Id.  218. 
8  Id.,  citing  Schneider  T.  Schiffinan,  20  Mo.  571 ;  Irish  v.  Cutler,  31  Me.  636.    But 
see  note  4  below. 


IRREGULAR  INDORSEMENT.  439 

eration  for  the  promise,  unless  it  be  shown  that  he  was  connected 
with  the  inception  of  the  note.1  3.  But  if  the  note  was  intended 
for  discount,  and  he  put  his  name  on  the  back  of  the  note  with 
the  understanding  of  all  the  parties  that  his  indorsement  would 
be  inoperative  until  the  instrument  was  indorsed  by  the  payee, 
he  is  liable  only  as  a  second  indorser  in  the  commercial  sense, 
and  as  such  is  entitled  to  the  privileges  which  belong  to  such  an 
indorser.2 

Oral  evidence  is  competent  to  show  whether  the  indorsement 
was  made  before  the  indorsement  of  the  payee  and  before  the  in- 
strument was  delivered  to  take  effect,  or  after  the  payee  had  be- 
come the  holder  of  the  same.3  In  the  absence  of  evidence  on  this 
point,  an  undated  indorsement  will  be  presumed  to  have  been 
made  at  the  inception  of  the  note.4 

If  made  at  the  inception  of  the  note,  it  is  prima  facie  pre- 
sumed to  have  been  made  for  the  same  consideration,  and  a  part 
of  the  original  contract  expressed  by  the  note.5  If  made  after 
the' inception  of  the  note,  and  after  an  indorsement  by  the  payee, 
it  will  be  presumed  it  was  not  made  for  the  same  consideration ; 6 

1  Good  v.  Martin,  95  U.  S.  (5  Otto),  90,  94,  affi'g  1  Col.  165,  2  Id.  218. 
3  Id. 

3  Id.;  Badger  v.  Barnabee,  17  N.  H.  120.     But  he  may  be  also  co-surety  with 
payee.     Carrier  v.  Fellows,  27  N.  H.  369. 

4  Good  v.  Martin  (above)  p.  94,  and  cases  cited  ;   Martin  v.  Boyd,  11  N.  H.  385, 
387 ;  Parkhurst  v.  Vail,  73  111.  343  ;  Cbllds  v.  Wyman,  44  Me.  441 ;  Gilpin  v.  Marley, 
4  Houst.  (Del.)  284;  Massey  v.  Turner,  2  Id.  79,  89 ;  compare  Union  Bank  v.  Willis, 
8  Mete.  504. 

In  different  jurisdictions  Ihere  is  much  diversity  of  opinion  as  to  whether,  under 
this  presumption  (or  under  direct  evidence  to  the  same  effect),  the  irregular  indorser 
should  be  held  as  Joint  maker  or  Surety,  as  in  the  Supreme  Court  of  the  United  State*, 
and  as  has  been  held  also  in  Arkansas,  (Killian  v.  Ashley,  24  Ark.  515) ;  Delaware, 
(Gilpin  v.  Marley,  4  Iloust.  [Del.]  284;  Massey  T.  Turner,  2  Id.  79,  89);  Georgia,  (by 
statute  :  Collins  v.  Everett,  4  Ge'o.  273);  Louisiana,  (Lawrence  v.  Oakey,  14  La.  389; 
Chorn  v.  Merrill,  9  La.  An.  533);  Maine,  (Childs  v.  Wyman,  44  Me.  441,  Leonard  v. 
Wilds,  36  Me.  265 ;  Good  v.  Martin,  above);  Maryland,  (Ives  v.  Bosley,  35  Md.  262, 
268;  Walz  v.  Alback,  37  Id.  404,  409);  Massachusetts,  (Hawks  v.  Phillips,  7  Gray, 
284);  Michigan,  (Witterwax  v.  Paine,  2  Mich.  559;  Rothchild  v.  Grix,  31  Id.  150); 
Minneso'a.  (Piers^  v.  Irvine,  1  Minn.  377);  Missouri,  (Scheider  v.  Schiffman,  20  Mo. 
671);  New  Hampshire, (Martin  v.  Boyd,  11  N.  H.  385,  387;  bub  compare  Currier  v. 
Fellows,  27  LI.  369) ;  North  Carolina,  (Baker  v.  Robinson,  63  N.  C.  191);  Rhode 
Inland,  (Perkins  v.  Barstow,  6  K.  I.  607);  South  Carolina,  (McCreary  v.  Bird,  12  Rich. 
554);  Vermont,  (Strong  v.  Riker,  16  Vt.  557;  Sylvester  v.  Downer,  20  Vt.  3">5);  and 
Went  Virginia,  (if  the  payee  so  elects,  Burton  v.  Hansford,  10  W.  Va.  470,  481);  or  aa 
a  Guarantor,  aa  in  England  and  in  Arkansas,  (if  the  payee  overwrites  n  guaranty, 
Killian  v.  Ashley,  24  Ark.  515);  California,  (Pierce  v.  Kennedy,  5  Cal.  138  ;  contra, 
Jones  v.  Goodwin,  39  Id.  493,  s.  c.  2  Am.  R.  473) ;  Connecticut,  (Perkins  v.  Catlin,  1 1 
Conn.  212 ;  Ransom  v.  Sherwood,  26  Id.  437;  Clark  v.  Merriman,  25  Id.  576);  Illinois, 
(Webster  v.  Cobb,  17  111.  459,  465,  and  cases  cited);  Iowa,  (by  statute:  Knight  v. 
Dunsmore,  12  Iowa,  85);  Kansas,  (Firman  v.  Blood,  2  Kan.  496,  626);  Kentucky,  (by 
statute:  Arnold  v.  Bryant,  8  Bush.  668);  Nevada,  (Van  Doren  v.  Tjader,  1  Nev.  880, 
887,  389) ;  Ohio,  (Champion  v.  Griffith,  13  Ohio,  228) ;  Texas,  Chandler  v.  Westfall.  30 
Tex.  477) ;  Virginia. (Watson  v.  Hunt,  6  Gratt.  033, 642;  Orrick  v.  Colston,  7  Id.  189, 
199)  and  West  Virginia,  (if  the  payee  so  elects.  Burton  v.  Hansford,  10  W.Va.  470. 481). 

In  New  Jersey  there  seems  to  be  no  liability  without  extrinsic  evidence.  Cbaddock 
v.  Van  Ness,  35  N.  J.  L.  517,  s.  c.  10  Am.  R.  256. 

8  Good  v.  Martin  (above) ;  Austin  v.  Boyd,  41  Mass.  64 ;  Parkhurst  v.  Vail,  73 
III  343. 

'  Good  v.  Martin  (above). 


MO  ACTIONS  ON  NEGOTIABLE  PAPER. 

and  if  it  be  attempted  to  charge  the  party  as  a  guarantor,  a  dis- 
tinct consideration  must  appear.1  To  show  that  that  which  was 
presumptively  an  indorsement  was,  by  intention  of  the  parties,  a 
guaranty  to  the  payee,  it  is  competent  to  prove  the  indorser's 
subsequent  admissions  of  liability  or  promises  to  pay  made  to  the 
payee/  provided  the  evidence  satisfies  the  statute  of  frauds  as  to 
guaranties. 

Under  these  rules  oral  evidence  is  admissible  to  show  that,  in 
the  intent  and  understanding  of  the  parties,  an  indorsement  made 
in  fact  after  manual  delivery,  was  made  in  pursuance  of  a  pre- 
vious condition  or  understanding,  such  that  it  is  to  be  referred 
back  and  take  effect  as  if  made  before  delivery.8  The  interpreta- 
tion ought  to  be  such  as  to  carry  into  effect  the  intent  of  the  par- 
ties; and  evidence  of  the  facts  and  circumstances  which  took 
place  at  the  time  of  the  transaction  are  admissible  to  aid  in  the 
interpretation  of  the  language  employed.4 

100.  Oral  evidence  to  vary  the  ascertained  contract.'] — When 
the  object  and  consequent  legal  effect  of  the  indorsement  have 
been  thus  ascertained,  the  same  rules  heretofore  stated 5  exclude 
oral  evidence  of  intention  inconsistent  with  the  legal  effect  of  an 
indorsement,  guaranty  or  joint  promise,  as  the  case  may  be.6 

VIII.  DEFENSES  GENERALLY. 

101.  Defenses  available  against  all  Holders,  whether  bona 
fide  or  otherwise.'] — The  following  defenses  may  be'  pleaded  and 
proved  against  even  an  innocent  holder  for.  value : 

1.  The  fact  that  defendant  had  no  legal  capacity  to  make  the 
contract  alleged  to  have  been  made  by  him.7 


1  Good  v.  Martin  (above),  p.  98,  citing  Essex  Company  v.  Edmunds,  12  Gray 
(Mass.)  272  ;  "firewater  v.  Silence.  7  N.  Y.  207.     If  the  indorsement  is  shown  to  have 
been  made  prior  to  or  contemporaneous  with  the  delivery  to  the  payee,  or  in  pursu- 
ance of  an  agreement  made  prior  to  or  contemporaneous  "with  the  delivery,  in  consid- 
eration of  which  the  payee  agrees  to  accept  it,  a  guaranty  overwritten  is  a  sufficient 
memorandum  within  the  statute  of  frauds.     Chaddock  v.  Van  Ness,  35  N.  J.  517,  B.  c. 
10  Am.  R.  256,  and  cases  cited.     But  compare  Van  Doren  v.  Tjader,  1  Nev.  380. 

2  Eilbert  v.  Finkbeiner,  68  Penn.  St.  243,  s.  c.  8  Am.  R.  176.     It  mi^bt  be  other- 
wise of  promises,  <fcc.,  to  a  subsequent  holder,  for  they  might  be  made  in  mistake  of 
law.     Id.,  per  SHARSWOOD,  J. 

3  Hawkes  v.  Phillips,  7  Gray,  284. 

4  Good  v.  Martin  (above),  p.  95  ;   Badger  v.  Barnabee,  17  N.  H.  120  ;  Pierse  v. 
v.  Irvine,  1  Minn.  369;   Perkins  v.  Catlin,   11  Conn.  212.      Declarations  in  payee's 
absence  do  not  bind  him.    Draper  v.  Weld,  13  Gray,  580  ;  Strong  v.  Riker,  16  Vt.  654. 

6  Paragraph  47. 

6  Allen  v.  Brown,  124  Mass.  78 ;   Trescoll  B'k  v.  Caverly,  7  Gray,  217 ;  Vore  v. 
Hurst,  13  Ind.  551. 

7  The  incapacity  of  a  party  prior  or  subsequent  to  defendant  is  not  usually  a  de- 
fense.    Burke  v.  Allen,  29  N.  H.  106,  and  cases  cited.     If  the  making  or  the  transfer 
is  even  tacitly  admitted  in  pleading,  incapacity  of  the  maker  or  the  indorser,  as  the 
case  may  be,  cannot  be  proved  unless  expressly  alleged.     Robbius  v.  Richardson,  2 
Bosw.  248.     Converselv,  a  mere  allegation  of  incapacity  does  not  admit  evidence 
that  an  indorsement  alleged  to  have  been  duly  made,  was  not  made  in  the  lawful 
manner.    Ogden  v.  Raymond,  6  Bosw,  16 ;  3  Abb.  Ct.  App.  Dec.  396. 


DEFENSES  GENERALLY  441 

2.  The  fact  that  the  instrument  was  given  for  a  consideration 
for  which  the  instrument  itself,  by  statute,  is  declared  void.1 

3.  The  spuriousness  or  forgery  of  the  contract  alleged  to  have 
been  made  by  defendant. 

4.  A  material  alteration  in  the  contract  of  the  defendant,  made 
by  a  holder  of  the  paper,  and  in  no  way  sanctioned  by  defendant.2 

5.  Fraud  in  the  obtaining  of  defendant's  signature,  without 
any  negligence  on  his  part,  or  any  intent  to  make  any  obligation 
or  transfer.8 

The  mode  of  pleading  and  proving  these  facts,  except  so  far 
as  already  stated,  is  reserved  for  the  chapters  on  defenses  in  ac- 
tions on  contract. 

102.  Failure  or  want  of  consideration] — As  between  the  par- 
ties to  the  act  that  lacks  consideration,  this  defense  is  available. 
As  against  subsequent  transferees  it  is  available  after  defendant 
has  shown  that  plaintiff  has  not  the  title  of  a  lonafide  holder.4 
It  should  be  pleaded,5  but  it  is  not  essential  that  the  answer  state 
whether  the  failure  is  set  up  as  a  denial,  or  a  recoupment  or  coun- 
ter-claim.6 Upon  the  whole  issue  as  to  original  want  of  consid- 
eration, it  will  be  for  plaintiff  to  sustain  the  burden  of  showing 
that  there  was  one ; 7  although  the  negotiable  paper  is  itself  prima 
facie  evidence  of  it.  If  there  was  a  consideration,  and  defendant 
relies  on  its  failure,  the  burden  is  on  defendant 8  to  prove  the 
failure  fully  and  explicitly.9  When  the  defense  is  available,  oral 
evidence  is  competent  of  the  real  consideration  and  the  facts 
attending  the  making  and  delivery  of  defendant's  obligation, 
which  are  not  inconsistent  with  the  instrument,  and  which  tend 
to  show  that  it  has  been  diverted  from  its  original  purpose.  When 
the  paper  was  made  in  pursuance  of  a  contract,  it  is  competent  to 
show  what  that  contract  was  and  its  purpose.10 


1  1  Dan.  Neg.  Inst.  §  807.  But  if  the  statute  does  not  expressly  avoid  the  instru- 
ment, it. is  valid  in  hands  of  a  bona  fide  purchaser  for  value,  before  maturity.  Cow- 
ing v.  Altman,  71  N.  Y.  439,  rev'g  5  Hun,  f>56. 

8  Otherwise  if  defendant  put  it  in  the  power  of  the  wrong-doer  to  alter,  by  deliv- 
ering the  paper  with  blanks,  <fec. 

3  See  Chapman  v.  Rose,  66  N.  Y.  137,  rev'g  44  How.  Pr.  864.  As  to  duress, 
see  paragraph  105. 

*  Wright  v.  Irwin,  33  Mich.  32. 

s  Moak's  Van  Santv.  PL  607,  n.;  Bingham  v.  Kendall,  17  Ind.  396,  399.  Contra, 
at  common  law. 

6  Wiltsie  v.  Northam,  8  Bosw.  162 ;  Springer  v.  Dwye-,  50  N.  Y.  19.  rev'g  68 
Barb.   189.     Compare  Dubois  v.  Hermans,   66  N.  Y.  673,  674 ;  Payne  v.  Cutler,  13 
Wend.  6C5  ;  Meakim  v.  Anderson,  11  Barb.  215  ;  Craig  v.  Missouri,  4  Pet.  410. 

7  Paragraph  29 ;  Estabrook  v.  Boyle,  1  Allen,  412. 

8  Dresser  v.  Ainsworth,  9  Barb.  619. 

9  Holbrook  v.  Wilson,  4  Bosw.  64;  Smith  v.  Paton,  6  Bosw.  145;  affi'd  in  81  N. 
Y.  66. 

The  motive  is  not  necessarily  the  consideration:. and  breach  of  a  promise  which 
constituted  part  of  the  motive  lor  giving  a  note  for  a  valid  consideration  is  not  neces- 
sarily a  failure  of  consideration.  Philpot  v.  Gruninger,  14  Wall.  677. 

10  Bookstaver  v.  Jayne,  60  N.  Y.  146,  rev'g  3  iSupm.  Ct  (T.  &  C.)  397. 


442  ACTION  ON  NEGOTIABLE  PAPER. 

Partial  failure  is  admissible,  under  an  allegation  of  total  fail- 
ure,1 unless  defendant  has  been  misled  to  his  prejudice. 

It  is  not  sufficient  for  one  of  several  joint  makers  to  show 
that  he  received  no  consideration.  He  must  also  show  that 
neither  of  the  others  did.2 

103.  Accommodation  paper."] — This  defense  may  be  made 
available  against  another  than  the  party  accommodated,  if  de- 
fendant can  show,  either : 

1.  That  plaintiff  was  a  transferee  after  maturity ; 8  or, 

2.  That  he  did  not  take  for  any  consideration  ; 4  or, 

3.  That  he  took  with  notice  or  the  accommodation  character 
of  the  signature,  and  that  the  signature  was  beyond  the  scope  of 
the  writer's  authority  ;  or 

4.  That  the  paper  was  wrongfully  diverted,  and  that  plaintiff 
did  not  take  for  value.5 

Evidence  of  accommodation  character  alone  does  not  put  on 
plaintiff  the  burden  of  proving  what  value  he  paid ; 6  but  coupled 
with  evidence  of  fraud,  duress,  or  fraudulent  diversion  of  the 
paper,  it  does.7  Where  there  is  only  the  simple  fact  that  it 
was  an  accommodation  bill  or  note,  then  the  inference  is  that  the 
holder  did  give  value  for  it,  because  that  was  the  very  object  for 
which  the  instrument  was  given.8  Evidence  of  consent  to  a  di- 
version of  the  paper  from  the  purpose  originally  intended  should 
be  clear  and  explicit,  not  doubtful  or  liable  to  misconstruction.9 

Evidence  that  the  paper  was  made  for  a  special  purpose,  and 
fraudulently  misappropriated,  is  not  available  under  a  mere 
denial  of  making  or  indorsing,10  nor  under  a  mere  allegation  of 
want  of  consideration.11  The  fact  that  the  maker  of  the  paper 
held  and  put  it  into  circulation  for  his  own  advantage,  is  sufficient 
evidence  of  notice  to  the  party  taking  it  that  the  indorsements  upon 
it  were  made  for  his  benefit,  and  not  in  the  course  of  business.12 


1  Landry  v.  Durham,  21  Indt  232  ;  Willis  v.  Bullitt,  22  Tex.  330. 

2  Kinsman  v.  Birdsall,  2  E.  1).  Smith,  395.  , 

3  Chester  v.  Dorr,  41  N.  Y.  279. 

4  But  it  is  not  enough  to  show  that  he  took  as  collateral  security  for  an  antece- 
dent debt.     Grocers'  Bank  v.  Penfiold,  2  Abb.  New  Cas.   305,  s.  c.  69  N.  Y.  502, 
qualifying  7  Hun,  279. 

5  A  fraudulent  diversion  of  the'  paper,  as  distinguishod  from  a  misapplication  of 
the  proceeds,  must  be  shown  for  this  purpose.     Farmers'  &  Cit.  Bank  v.  Noxon,  45 
N.  Y.  762 ;  Wolfe  v.  Brouwer,  5  Robt.  601 ;    Gray  v.  Bank  of  Ky.  29  Penn.  St.  365. 

If  the  accommodation  character  of  the  paper  is  shown,  and  a  diversion  of  it,  de- 
fendant need  not  show  that  the  diversion  was  injurious  to  him ;  the  burden  is  on 
plaintiff  to  show  that  it  was  not.  Rochester  v.  Taylor,  23  Barb.  18. 

6  Harger  v.  Worrall,  69  N.  Y.  370. 

7  Farmers',  <fec.  Bank  v.  Noxon,  45  N.  Y.  762. 

8  Seybel  v.  Bank,  54  N.  Y.  291 ;    Collins  v.  Gilbert,  94  IT.  S.  (4  Otto),  753.     Ac- 
cording to  some  authorities,  defendant  must  show  that  plaintiff  had  knowledge  of  the 
equity  as  well  as  of  the  accommodation  character  of  the  signature.     1  Dan.  Neg.  Inst. 
§§  790,  791. 

9  People  ex  rel.  Barton  v.  Rensselaer  Ins.  Co.  38  Barb.  323. 

10  Rose.  N.  P.  365  ;  Collins  v.  Gilbert,  94  U.  S.  (4  Otto),  757. 

11  Catlin  T.  Ilansen,  1  Duer,  309. 

18  Fielden  v.  Lahens,  2  Abb.  Ct.  App.  Dec.  Ill ;  Lemoine  v.  Bank  of  North  Amer- 
ica, 3  Dill.  C.  Ct.  44,  and  cases  cited. 


DEFENSES   GENERALLY.  443 

104.  fraud.'] — As  against  a  bona  fide  holder,  it  is  not  enough 
to  show  fraud  even  in  regard  to  the  nature  or  contents  of  the  in- 
strument, if  it  appears  that  the  party  meant  to  make  some  obliga- 
tion, and  left  it  to  another  to  put  in  writing  the  limits  of  it,  with- 
out due  supervision.1    The  evidence  of  such  fraud,  however,  is 
available  if  coupled  with  evidence  that  the  defendant  was  free 
from  negligence.2    Thus  evidence  that  defendant  could  not  read 
will  excuse  a  confidence  which  would  otherwise  be  negligence.3 

105.  DuressJ] — Evidence  that  the  defendant's  signature  was 
obtained  by  duress  puts  on  plaintiff  the  burden  of  proving  his 
title.4    Evidence  that  it  was  obtained  by  violent  duress,  witnout 
any  consideration,  avoids  the  note  even  as  against  a  bona  fide 
holder.5 

106.  Impeaching  Plaintiff's  Title.'] — If  the  instrument,  though 
not  specially  payable  to  plaintiff,  is  drawn  or  indorsed  so  as  to  be 
payable  to  bearer,  its  production  by  plaintiff,  without  any  other 
evidence  of  his  title,  throws  on  defendant  the  burden  of  impeach- 
ing that  title.6    This  may  be  done,  under  proper  pleading,  by  evi- 
dence that  he  never  acquired  any  title,  or  that  he  has  absolutely 
divested  himself  of  it,  or  that  he  acquired  the  paper  with  notice 
that  his  transferror  had  parted  with  title  to  another.7 

If  the  complaint  sets  forth  the  plaintiff's  title, — as,  for  in- 
stance, by  alleging  that  defendant  gave  the  note,  or  indorsed  the 
note  to  B.,  &c.,8  defendant  may,  under  a  denial,  show  that  it  was 
given  or  indorsed  to  others  who  still  hold  it.  If  the  complaint 
makes  only  a  general  allegation  of  title,  evidence  that  title  is  in 
another  is  not  admissible  as  a  defense,  unless  pleaded  as  new  mat- 
ter.9 But  in  either  case,  if  plaintiff  shows  that  he  has  legal  right 
to  demand  payment  as  against  .defendant,  nothing  short  of  evi- 
dence of  his  bad  faith  will  avail  the  debtor  to  defeat  the  action.10 
Even  if  defendant  should  show  that  a  stranger  had  a  right  to 
contest  the  plaintiff's  title,  the  legal  presumption  is  that  the 
stranger  does  not  intend  to  do  so.11  If  plaintiff's  title  is  not  duly 
put  in  issue,  evidence  that  he  had  none,  and  had  not  authorized 


1  Chapman  v.  Rose,  66  N.  Y.  137,  reVg  44  How.  Pr.  364.     Compare  Brown  v. 
Reed,  79  Penn.  St.  370,  s.  o.  21  Am.  R.  75  ;  and  see  16  Alb.  L.  J.  1^7. 

2  Walker  v.  Egbert,  29  Wise.  194,  8.  c.  9  Am.  R.  548,  and  cases  cited ;    Briggs  v. 
Ewart,  51  Mo.  245,  8.  c.  11  Am.  R.  445. 

3  Whitney  v.  Snyder,  2  Lans.  477  (approved  in  56  N.  Y.  142) ;  Griffiths  v.  Kel- 
logg, 39  Wise.  290,  8.  c.  20  Am.  R.  48. 

4  McClintick  v.  Cummina,  2  McLean,  98;  1  Dan.  Neg.  Inst.  611. 

5  See  Loomia  v.  Ruck,  66  N.  Y.  465. 

6  Smith  v.  Sac  County,  1 1  Wall.  139,  and  cases  cited. 

I  Sheldon  v.  Parker,  3  Hun,  498,  s.  c.  5  Supra.  Ct.  (T.  <k  C.)  616. 
8  Rose.  N.  P.  864,  3C5;  Hull  v.  Wheeler,  7  Abb.  Pr.  411. 

•  See  White  v.  Drake,  2  Abb.  New  Cas.  133,  and  cases  cited.  Compare  Wedder- 
spoon  v.  Rogers,  32  Cal.  669. 

10  City  Bank  of  New  Haven  v.  Perkins,  29  N.  Y.  568  ;  and  see  Poorman  v.  Mills, 
35  Cal.  118. 

II  City  Bank  v.  Perkins,  29  N.  Y.  567. 


444  ACTIONS  ON  NEGOTIABLE  PAPER. 

the  action,  is  inadmissible.1  Under  even  a  general  denial,  how- 
ever, defendant  may  show  that  plaintiff  has  but  a  naked  legal 
title,  and  that  the  real  interest  is  in  another,  for  the  purpose  of 
letting  in  evidence  of  the  declarations  and  admissions  of  that 
other/ 

The  evidence  of  title  afforded  bv  producing  the  instrument  on 
the  trial  may  be  rebutted  by  showing  that  the  plaintiff  did  not 
obtain  the  right  or  title  by  which  he  seeks  to  recover  until  after 
the  commencement  of  the  action ; 8  or  that  possession  was  origin- 
ally acquired  for  a  special  purpose,  and  not  as  accompanying 
title.4  The  appearance  of  restrictive  indorsements,  subsequent 
to  one  which  would  charge  defendant  as  liable  to  bearer,  is  not 
evidence  of  title  in  another.5  The  fact  that  the  plaintiff  suing 
indorsers  on  a  bill  of  exchange  acquired  title  from  the  acceptor 
is  prima  facie  evidence  that  he  is  not  a  bona  fide  holder.8 

If  the  instrument  is  not  in  plaintiff's  possession,  his  recovery 
may  be  defeated  by  showing  that  it  is  in  the  possession  of  an 
adverse  claimant  who  would  have  apparent  right  of  recovery  by 
its  production.7  But  the  mere  fact  that  plaintiff  has  not  actual 
possession  of  the  instrument,  does  not  necessarily  defeat  his  re- 
covery. It  is  sufficient  if  he  has  the  right  to  the  money  due 
upon  it.8 

107.  Collateral  security.] — Evidence  adduced  by  defendant 
that  plaintiff  took  the  paper  merely  as  collateral  security  does  not 
alone  affect  plaintiff's  right  to  recover ; 9  but  if  defendant  also 
shows  an  equity  against  the  pledger, — such  as  that  the  paper  was 
accommodation  paper  on  his  part,10 — the  law,  for  the  purpose  of 
preventing  circuity  of  action,  limits  the  recovery  to  the  amount 
due  from  the  pledger.11  The  burden  is  on  the  plaintiff  to  prove 


1  "Way  v.  Richardson,  3  Gray,  412. 
s  Davis  v.  Carpenter,  12  How.  Pr.  287. 

8  Hovey  v.  Sebring,  24  Mich.  232,  s.  c.  9  Am.  R.  122 ;  Reynolds  v.  Kent,  6  Cent. 
L.  J.  155 ;  compare  43  Me.  364. 

4  See  Rogers  v.   Morton,  12  Wend.  487,  affi'd  in   14  Id.  675;    Micklethwaite  v. 
Thebaud,  4  Sandf.  97.     Evidence  that  the  payee  had  possession  of  the  note  after  he 
had  assigned  it,  for  the  purpose  of  demanding  payment  for  plaintiff,  and  put  it  in  an 
attorney's  hands  to  sue,  does  not  necessarily  prove  that  he  is  the  real  party  in  inter- 
est.    Grimes  v.  McAninch,  9  Ind.  278. 

5  Rider  v.  Taintor,  4  Allen,  856. 

8  Central  Bank  of  Brooklyn  v.  Hammett,  50  N.  Y.  158.  Contra,  Morley  v.  Cul- 
verwell,  7  Mees  <fe  W.  174;  1  Dan.  Neg.  Inst.  §  781  a.  Compare  Hunter  v.  Kibbe,  5 
McLean,  279. 

7  Van  Alstvne  v.  Commercial  Bank,  4  Abb.  Ct.  App.  Dec.  452 ;  Crandall  v. 
Schrceppel,  1  Hun,  557,  s.  c.  4  Supm.  Ct.  (T.  &  C.)  78.     See  also  Sheldon  v.  Parker, 
3  Hun,  498,  s.  c  5  Supm.  Ct.  (T.  <fc  C.)  616. 

8  Selden  v.  Pringle,  17  Barb.  458. 

9  Atlas  Bank  v.  Doyle,  9  R.  I.  76,  s.  c.  11  Am.  R.  219.     See  also  Grocers'  Bank 
V.  Penfield,  2  Abb.  New  Cases,  305. 

10  Atlas  Bank  v.  Doyle  (above);  1  Dan.  Neg.  Inst.  8  832. 

11  See  cases  collected  in  18  Alb.  L.  J.  247 ;  Holcomb  v.  Wyckoff,  85  N.  J.  35,  8.  0. 
10  Am.  R.  219. 


DEFENSES  GENERALLY.  445 

what  debts  were  secured  and  the  amount  due.1  But  if  defepd- 
ant  relies  on  the  fact  of  a  payment  or  discharge  of  such  debts, 
that  is  for  him  to  show.2 

Irregularity  in  forfeiting  the  pledge  is  not  available  to  one 
not  a  party  to  the  contract  of  pledge.8 

108.  Transfer  after  maturity^  — Proving  transfer  after  matur- 
ity is  not  available  unless  coupled  with  evidence  of  equities  exist- 
ing against  prior  parties,4  and  attaching  to  the  paper  itself,  as  dis- 
tinguished from  collateral  transactions.5  Even  then,  plaintiff  may 
prove  that  he  took  from  one  who  was  a  bona  fide  purchaser  for 
value  before  maturity,  although  plaintiff  himself  may  have  pur- 
chased after  maturity  or  witn  a  knowledge  of  the  infirmity.6 
Where  the  time  of  maturity  depends  on  the  time  of  delivery,  and 
the  date  and  the  time  of  delivery  are  not  coincident,  the  latter 
may  be  shown  by  parol,  in  order  to  avoid  the  presumption  of 
dishonor  before  transfer.7 

109.  Suretyship  and  Dealing  with  principal^ — As  between 
the  original  parties  to  the  transaction,  one  of  several  may  show 
by  oral  evidence  that  he  signed  as  surety,  so  as  to  let  in  the  defense 
of  an  extension  discharging.him  ; 8  but  special  conditions  of  sure- 
tyship not  implied  in  the  legal  relation  cannot  be  proved  by 
parol  evidence  of   contemporaneous  agreement,  if  they  would 
contradict  the  writing.9      The  like   evidence  of    suretyship  is 
competent  against  a  subsequent  holder  if  he  is  shown  to  have  had 
knowledge  of  the  true  relation  of  the  parties  at  the  time  of  his 
dealing  with  the  principal  ;10  otherwise  not.11 

A  defendant  who  is  shown  to  be  a  surety  under  the  foregoing 
rules,  or  who  is  charged  as  an  indorser,12  or  drawer,13  may  show  a 
valid  agreement  between  the  holder  and  the  maker,  or  acceptor, 
or  any  party  prior  to  defendant,14  extending  the  time  for  pay- 
ment, without  consent  of  the  defendant.  But  such  agreement  is 
matter  of  defence  which  must  be  affirmatively  alleged 15  and 
proved 16  by  the  defendant. 


I  Maitland  v.  Citizens'  Nat.  Bank  of  Baltimore,  40  Md.  540,  s.  c.  17  Am.  R.  620. 
Contra,  Atlas  Bank  v.  Doyle  (above). 

'  Hilton  v.  Smith,  5  Gray,  400. 
8  Hatch  v.  Brewster,  53  Barb.  276. 

4  Way  v.  Richardson,  3  Gray,  414. 

5  National  Bank  of  Washington  v.  Texas,  20  "Wall.  88,  and  cases  cited. 

6  Roberts  v.  Lane,  64  Me.  108,  s.  o.  18  Am.  R.  242. 

7  Cowing  v.  Altman,  71  N.  Y.  441,  rev'g  5  Hun,  556. 

8  Hubbard  v.  Gurney,  64  N.  Y.  457  ;  8  So.  Law  Rev.  439. 
'  Thompson  v.  Hall,  45  Barb.  214,  and  cases  cited. 

10  Oriental  Financial  Co.  v.  Overend,  L.  R.  7  Ch.   142 ;    7  H.  L.  348.     Contra,  1 
Dan.  Neg.  Inst.  §  1338.     Compare  1  Pars.  Pr.  N.  (fee.  233. 

II  Summerhill  v.  Tapp,  52  Ala.  227. 

»  Artisans'  Bank  v.  Backus,  36  N.  Y.   100,  s.  c.  3  Abb.  Pr.  N.  S.  273,  nffi'g  81 
How.  Pr.  242. 

13  English  v.  Darley,  2  Bos.  <fe  P.  61. 

14  Rose.  N.  P.  393,  citing  Hall  v.  Cole,  4  Ad,  <k  E.  577. 

11  Rose.  N.  P.  393. 

15  Artisans'  Bank  v.  Backus  (above). 


446  ACTIONS  ON  NEGOTIABLE  PAPER. 

To  invoke  the  rule  that  taking  a  new  note  suspends  the  right 
of  action  and  discharges  the  surety  not  assenting,  it  should  be 
made  to  appear  that  there  was  an  agreement,  either  express,  or 
implied  from  the  facts  proved,  that  the  new  note  was  taken  in 
payment  of  the  first  note,  or  that  the  time  of  payment  of  the 
iirst  note  was  extended  in  favor  of  the  party  who  was  primarily 
liable.1  If  either  be  proved,  it  is  not  necessary  to  show  that  the 
first  note  was  surrendered.2  If  a  new  obligation  was  taken,  evi- 
dence of  a  different  contemporaneous  oral  agreement,  is  not 
competent.8 

110.  Payment.] — Payment  must  be  affirmatively  pleaded.  A 
denial  of  the  formal  allegation  of  non-payment  is  not  equivalent 
to  an  allegation  of  payment.4  On  an  issue  of  payment,  alone, 
the  burden  is  on  the  defendant  to  show  payment ; 5  and  this  is 
so  even  where  evidence  is  requisite,  and  has  been  given,  that 
the  instrument  was  present  at  the  place  where  it  was  payable, 
on  the  day  it  fell  due.6  Where  the  only  issue  is  payment,  neither 

nis  bound  to  produce  the  instrument.7 
a  party  to  the  instrument  is  shown  once  to  have  delivered 
it  so  as  to  become  liable  on  it,  the  mere  fact  of  its  present  pro- 
duction by  him  is  generally  prima  fade  evidence  against  those 
seeking  to  hold  him  liable  on  it,  and  in  his  favor,  that  it  has  been 
paid  or  otherwise  discharged ; 8  but  this  presumption  does  not 
necessarily. arise  where  he  is  shown  to  have  had  other  means  of 
regaining  possession. 

The  possession  of  the  paper  by  the  plaintiff  is  presumptive 
evidence  that  it  has  not  been  paid  by  those  liable  on  it  to  him. 
But  if  he  was  liable  on  it  to  others,  to  -whom  he  paid  the  amount 
at  maturity,  it  may  defeat  his  action,  unless  he  gives  evidence 
that  he  acquired  title  by  transfer,  not  merely  possession  by  sur- 
render on  payment.9  A  payment,  for  which  a  general  receipt  is 
indorsed  upon  the  instrument,  is  presumed  to  have  been  made 
by  the  maker  or  acceptor,  who  was  primarily  liable,  even  when 
the  drawer  has  possession  and  sues  the  acceptor.10  If  the  instru- 


1  Hubbard  v.  Gurney,  64  N.  Y.  467.  Testimony  of  a  party  to  the  alleged  agree- 
ment of  extension  relied  on  to  discharge  an  indorser,  merely  to  the  effect  that  he 
solicited  indulgence  to  arrange  his  affairs  and  try  and  relieve  his  indorsers,  and  that 
he  was  given  to  understand  that  this  would  be  extended  to  him,  if  he  remembers  nothing 
more  than  this,  is  insufficient  to  sustain  a  finding  of  an  agreement.  NELSON,  Ch.  J. 
Bank  of  Utica  v.  Ives,  17  Wend.  503. 

4  Hubbard  v.  Gurney  (above). 

8  Burbank  v.  Beach,  15  Barb.  326. 

4  Edson  v.  Dillaye,  8  How.  Pr.  273. 

5  Knapp  v.  Runals,  37  Wis.  135. 

6  Fullerton  v.  Bank  of  United  States,  1  Pet  604,  617. 

T  Rose.  N.  P.  392;  Mead  v.  Brooks,  8  Ala.  840.  Contra,  Marfield  v.  Davidson,  8 
Gill  A  J.  209. 

8  Se«  paragraph ;  Grey  v.  Grey,  47  N.  Y.  652,  reVg  2  Lans.  173 ;  and  see  Hack- 
ney  v.  Vrooman,  62  Barb.  650. 

*  See  page  2  of  this  vol.,  paragraph  4. 

10 1  Dan.  Neg.  Inst.  §  1229. 


DEFENSE   SHIFTING   BURDEN   OF  PROOF.  M7 

ment  is  produced  from  the  plaintiff's  custody,  it  is  for  him  to  ex- 
plain a  receipt  appearing  thereon  if  he  seeks  to  impeach  it.1 

Where  a  new  bill  or  note  is  given  in  renewal  of  an  earlier,  and 
the  earlier  is  retained,  the  new  is  presumptively  only  a  suspension 
of  the  debt,  and  not  a  satisfaction  until  paid,  unless  it  be  shown 
that  it  was  expressly  agreed  that  the  earlier  one  should  be  extin- 
guished. Delivery  of  the  earlier  without  such  agreement  does 
not  of  itself  raise  a  presumption  of  extinguishment.  And  pre- 
sumptive evidence  of  intent  to  extinguish  may  generally  be 
rebutted  hy  showing  that  by  such  construction  the  debt  would  be 
lost.2 

111.  Qualifying  agreement.'] — Evidence  of  an  agreement  be- 
tween the  original  parties  qualifying  or  suspending  the  apparent 
liability  of   the  maker   is   not   competent  against  a  holder  for 
value  before  maturity,  unless  it  is  first  shown  that  he  had  knowl- 
edge thereof  at  the  time  the  transfer  was  made.8 

IX.  DEFENDANT'S   EVIDENCE   TO    REQUIRE  PLAINTIFF  TO   PEOVE 
TITLE  AS  A  HOLDER  FOR  VALUE  BEFORE  MATCRITY. 

112.  The  general  rule.'} — The  right  of  a  transferree  to  shut 
out  defenses  such  as  arise  from  equities  between  the  antecedent 
parties,  depends  on  his  having  the  title  of  a  purchaser  and  holder 
of  a  negotiable  instrument,  who   took  it,  1,  in  good  faith  ;  2, 
for  a  valuable  consideration ;  3,  in  the  ordinary  course  of  business ; 
4,  when  it  was  not  overdue  ;  5,  without  notice  of  its  dishonor,  and 
6,  without  notice  of  facts  which  impeach  its  validity  as  between 
the  antecedent  parties.     The  plaintiffs  production  of  the  instru- 
ment, with  proof  of  its  execution,  &c.,  as  above  stated,  raise  a 
sufficient  presumption  in  his  favor  on  all  these  points.4 

Defendant,  to  lay  the  foundation  for  defenses  arising  from 
such  equities,  must  adduce  evidence  sufficient  to  go  to  the  jury,5 
tending  to  show  either,  1.  That  plaintiff,  when  he  took  the  paper, 
had  notice  of  the  equities — in  other  words,  must  negative  plaint- 
iff's good  faith  (in  which  case  the  burden  is  thrown  on  plaintiff  to 
prove  that  one  under  whom  he  claims  was  in  fact  a  purchaser  for 
value,  &c.,  before  maturity) ; c  or,  2.  That  there  was  iraud,  duress, 


1  See  paragraph  61.  Compare  2  Greenl.  Ev.  13th  ed.  480,  §  627.  Authority  of 
an  agent  to  receive  payment  is  not  necessarily  implied  from  possession.  Doubleday 
v.  Kress,  50  N.  Y.  410,  reVg  60  Barb.  181  ;  Scoville  v.  Landon,  Id.  686. 

8  2  Dan.  Neg.  Inst.  §  1266.  Compare  Nightingale  v.  Chafee,  11  R.  I.  609,  s.  o.  23 
Am.  R.  631. 

a  Brown  v.  Spofford,  95  U.  S.  (5  Otto),  474,  483. 

4  Collins  v.  Gilbert,  94  U.  S.  (4  Otto),  754,  and  cases  cited. 

1  Smith  T.  Sac  County,  11  Wall.  139,  147,  nud  authorities  cited.  If  the  cause  is 
tried  without  a.  jury  the  jud^e  may  pass  on  the  question,  as  preliminary  to  further 
evidence.  Brookman  v.  Millbank,  50  N.  Y.  378. 

6  Hill  v.  Sands,  6  N.  Y.  Le?.  Obs.  19.  On  proof  that  the  note  was  fraudulent  and 
void  as  between  the  maker  and  payee,  an  intermediate  holder  will  not  be  presumed, 


448  ACTIONS  ON  NEGOTIABLE  PAPER. 

or  illegality  in  the  inception  of  the  contract,  or  negotiation  in 
fraud  of  the  rights  of  the  defendant  (in  which  case,  and  without 
evidence  that  plaintiff  had  notice  thereof,1  the  burden  is  thrown 
upon  plaintiff  of  supporting  the  presumption  of  title  by  showing 
due  negotiation  in  fact.)8  if  defendant  shows  that  the  paper  was 
lost  or  stolen,  it  throws  the  burden  on  plaintiff  of  showing  that  it 
came  to  him  in  due  course  of  business  and  for  value.8 

113.  Failure  or  want  of  Consideration.'] — Failure  or  want  of 
consideration,4  as  distinguished  from  a  fraudulent  or  illegal  incep- 
tion of  the  contract,5  is  not  enough  to  rebut  the  presumption  that 
plaintiff  is  a  bona  fide  holder,  or  put  him  to  proof  of  the  amount 
paid  by  him.     Evidence  that  the  consideration  was  positively  il- 
legal,6 as  distinguished  from  being  merely  void,7  does  throw  the 
burden  on  plaintiff. 

X.  PLAINTIFF'S  EVIDENCE  OF  TITLE  AS  HOLDER  FOR  YALUE  BEFOEE 

MATURITY. 

114.  Burden  of  proof ^\ — To  enable  him  to  recover,  after  the 
burden  is  thrown  upon  him,  plaintiff  must  prove  that  he  (or  one 
under  whom  he  claims)  took  the  paper  before   maturity,  for 
value,8  even  although  there  were  intermediate  indorsers,  unless 
there  is  evidence  that  they  paid  value.9    Fraud  being  shown,  the 
presumption  is  that  the  deceiver  will  transfer  the  paper,  so  as  to 
enable  some  other  to  collect  it ;   and  this   presumption   avails 
against  the  holder  to  require  him  to  show  that  value  was  paid.10 

115.  Evidence  that  transfer  was  before  Maturity. ~] — Plaintiff 
must  show  that  delivery,11  and  also  indorsement,  if  indorsement 
was  necessary,  were  made  before  maturity.     Delivery  and  mis- 
take do  not  excuse  delay  in  indorsing.12 

Against  a  maker  or  drawer  who  delivers  paper  after  its  date, 


in  favor  of  plaintiff,  to  have  paid  value.     Holcomb  v.  Wyckoff,  35  N.  J.  35,  s.  o.  10 
Am.  R.  219,  222;   Roberta  v.  Lane,  64  Me.  108,  s.  c.  1  8  Am.  R.  242. 

: '  N.  y.  &  Virginia  State  Stock  Bank  v.  Gibson,  5  Duer,  574.     Bat  see  Hutchin- 
son  v.  Boggs,  28  Penn.  St.  294. 

2  The  necessity  of  evidence  of  this  may  be  dispensed  with  by  omitting  to  require 
it  at  the  trial.     Wilson  v.  Rocke,  58  N.  Y.  642. 

3  Kuhns  v.  Gettysburg!*  Nat.  Bk.  68  Penn.  St.  446.     So,  perhaps,  where  it  was 
lodged  in  escrow,  and  wrongfully  delivered.     Chipman  v.  Tucker,  38  Wise.  43,  and 
see  pp.  52,  60. 

4  Mechanics'  &  Traders'  Nat.  Bank  of  N.  Y.  v.  Crow,  60  N.  Y.  85,  affi'g  5  Daly, 
191;  Wilson  v.  Lazier,  11  Gratt.  477. 

5  Ross  v.  Bedell,  5  Duer,  465  ;  Valhir  v.  Zane,  6  Gratt.  246. 

6  Holdeu  v.  Cosgrove,  12  Gray,  216. 

7  Rose.  N.  P.  886. 

8  Collins  v.  Gilbert,  94  U.  S.  (4  Otto),  753,  and  cases  cited. 
•  Bank  of  St.  Albans  v.  Gilliland,  23  Wend.  811. 

10  Bailey  Y.  Bidweli,  13  Mees.  &  W.  73;  First  Nat.  Bk.  v.  Green,  43  N.  Y.  298. 

11  A  verbal  pledge  of  the  paper  without  delivery  is  not  enough.     Either  a  delivery, 
or  some  positive  act  showing  an  actual  transfer  of  the  paper  itself,  or  of  the  right  to 
dispose  of  it,  should  be  proved.     Russell  v.  Scudder,  42  Barb.  31,  35,  MILLER,  J. ; 
and  see  Woodruff  v.  Wicker,  2  Bosw.  613. 

19  Lancaster  Nat.  Bk.  v.  Taylor,  100  Mass.  18 ;  1  Am.  R.  71,  and  cases  cited. 


EVIDENCE  OP  TITLE  AS  BONA  FIDE  HOLDER.  449 

or  lodges  it  with  a  depositary  with  authority  to  make  such  a  de- 
livery, one  claiming  as  a  transferree  for  value  may  show  that  it 
was  delivered  at  the  time  of  the  transfer,  and  thus  remove  the 
presumption  of  dishonor  arising  from  the  apparent  date.1 

If  paper  payable  on  demand  is  offered  in  evidence  duly  in- 
dorsed, but  with  an  undated  indorsement,  the  presumption  is  that 
it  was  indorsed  before  maturity  ;  and  the  burden  is  on  him  im- 
peaching it  on  the  ground  of  dishonor  before  indorsement,  to 
show  that  the  transfer  took  place  after  a  reasonable  time  had 
elapsed.  But  if  the  transfer  is  shown  to  have  taken  place  after 
the  expiration  of  a  reasonable  time,  or  if  no  demand  was  made 
within  such  time,  so  as  to  charge  the  indorser,  the  burden  is  on 
plaintiff  to  show  excuse  for  the  delay.3 

116.  —  and  before  noticeJ] — If  notice  of  the  infirmity  is  shown 
to  have  been  given  to  the  holder  before  maturity,  plaintiff  must 
show  that  the  title  was  perfected  not  only  by  delivery  but  by 
indorsement,3  and  (if  necessary)  by  payment  of  value,  all  made 
before  such  notice ;   and  on  showing  this  he  will  be  protected 
only  to  the  extent  of  the  value  so  paid.4 

117.  —  and  for  valued] — Plaintiff  must  show  what  value  was 
paid.5    If  the  paper  never  had  an  inception  until  it  came  to  the 
holder's  hands,  he  cannot  recover  without  proof  of  payment  of 
full  value.     Usurious  discount  is  fatal.6    Otherwise,  the  amount 
of  consideration  is  not  material,  except  as  bearing  on  the  question 
of  actual  or  constructive  notice,7  or  as  limiting  the  recovery  in 
certain  cases. 

118.  Evidence  of  good  faith."] — At  this  stage  of  the  case 
plaintiff  is  not  called  on  to  show  that  he  had  no  notice.8     If  he 
shows  that  he,  or  the  one  under  whom  he  claims,  is  a  transferree 
for  value  and  before  maturity,  within  the  foregoing  rules,  and  there 
is  nothing  on  the  face  of  the  paper,  to  charge  him  with  inquiry,9 
or  in  the  circumstances,  to  show  his  bad  faith,10  the  burden  is 
thrown  on  defendant  to  prove  bad  faith  in  taking  the  transfer.11 

119.  "  Taking  up."~\ — To  enable  one  already  liable  upon  the 


I  Cowing  v.  Altman,  71  N.  Y.  441,  reVg  5  Hun,  656. 

*  1  Pars,  on  Pr.  N.  Ac.  380.     For  the  mode  of  proving  discount  in  the  ordinary 
course  of  business,  by  producing  the  bank's  books,  see  Ocean  Nat.  Bank  v.  Carll,  55 
N.  Y.  440,  and  again,  9  Hun,  237. 

3  Clark  v.  Whitaker,  50  N.  H.  474,  s.  o.  9  Am.  R.  286. 

4  Dresser  v.  Missouri,  «fcc.  Railway  Construction  Co.  93  U.  S.  (3  Otto),  92. 
8  First  National  Bank  v.  Green,  43  N.  Y.  298,  301. 

«  Eastman  v.  Shaw,  65  N.  Y.  522.     Compare  Miller  v.  Crayton,  3  Supm.  Ct.  (T.  <k 
C.)  360,  and  Williams  v.  Tilt,  36  N.  Y.  319. 

7  Gould  v.  Segee,  5  Dner,  270. 

8  Cowing  v.  Altman,  71  N.  Y.  440,  rev'g  6  Hun,  656;  Dalrymple  v.  Hillenbrand, 
62  N.  Y.  5,  affi'g  2  Hun,  488,  s.  c.  5  Supm.  Ct.  (T.  A  C.)  67. 

*  See  paragraph  121. 

10  Jones  v.  Gordon,  H.  of  L.  87  Law  Times,  N.  S.  480.     Per  BLACKBURN,  J. 

II  Catlin  v.  Uanaen,  1  Duer,  309;  Hart  v.  Potter,  4  Id.  458;  Davia  v.  Bartlett,  12 
Ohio  St.  634 

29 


4:50  ACTIONS  ON  NEGOTIABLE  PAPER. 

paper,  or  already  chargeable  with  notice  of  equities,  to  recover 
against  others,  as  a  lona  fide  holder  on  taking  it  up,  he  should 
show  a  transfer  of  it  to  him *  as  distinguished  from  a  payment  of 
it  by  him,2  but  the  evidence  that  the  transaction  was  so  intended 
need  not  be  express,  for  the  intent  may  be  inferred  from  circum- 
stances.8 If  it  be  shown  that  he  took  it  up,  as  distinguished  from 
paying  it,  evidence  of  his  knowledge  of  an  original  want  of  con- 
sideration, &c.,  is  not  admissible.4  . 

XI.   DEFENDANT'S  EVIDENCE  THAT  PLAINTIFF  is  NOT  A  HOLDER 

IN   GOOD   FAITH. 

120.  Bad  faith.']- — To  show  bad  faith,  evidence  of  guilty 
knowledge,  or  of  willful  ignorance  is  essential.5    For  this  purpose 
circumstances  which  ought  to  have  put  a  prudent  man  on  in- 
quiry are  admissible  in  evidence ;  and  fraud  established,  whether 
by  direct  or  circumstantial  evidence,  is  sufficient ; 6  but,  on  the 
whole  evidence,  notice  or  fraud  must  clearly  appear.7 

A  very  trivial  price  is  a  circumstance  relevant  on  the  ques- 
tion of  bad  faith.8 

121.  NoticeJ] — Notice,  or  other  facts  equivalent,  must  be  al- 
leged in  order  to  be  admissible.      A  general  allegation  of  bad 
faith  is  not  enough.9 

Express  notice  given  to  the  transferee  prior  to  the  transfer, — 
as,  for  instance  notice  that  certain  securities  had  been  stolen, — is 
prima  facie,  but  not  conclusive,  evidence  of  bad  faith,  and  may 
be  rebutted  by  proof  that  the  notice  was  lost,  or  its  existence  or 
contents  "forgotten  at  the  time  of  transfer.10  Advertisement  of 
loss  is  not  competent  unless  brought  home  to  the  transferee;11 
but  evidence  from  which  it  is  probable  that  the  advertisement 
was  seen, — for  instance  that  he  took  or  habitually  read  the  paper, 
— is  enough  to  go  to  the  jury.12 

Marks  on  the  instrument  itself,  of  a  character  to  apprise  one 


I  Frecdman's  Savings,  <fcc.  Co.  v.  Dodge,  93  TJ.  S.  (3  Otto),  382 :    and  see  p.  2  of 
this  Vol. 

8  Lancey  v.  Clark,  64  N.  Y.  209. 

8  Same  cases. 

4  Benedict  v.  De  Groot,  1  Abb.  Ct.  App.  Dec.  125.  Compare  Burr  v.  Smith,  21 
Barb.  262;  Hooper  v.  De  Long,  37  Super.  Ct.  (J.  <fe  S.)  127. 

8  Hotchkiss  v.  Nat.  Bank,  21  Wall.  354 ;  Collins  v.  Gilbert,  94  U.  S.  (4  Otto),  753 ; 
Commissioners  of  Marion  County  v.  Clark,  Id.  285 ;  1  Dan.  Neg.  Inst  §  775. 

6  Murray  v.  Lardner,  2  Wall.  121. 

7  Morehead  v.  Gillmore,  77  Penn.  St.   118,  s.  c.  18  Am.  R.  435;  Hamilton  v. 
Vought,  34  N.  J.  18;  Phelan  v.  Moss,  67  Pa.  St.  59,  s.  c.  5  Am.  R.  402.     Contra,  43 
Vt.  125,  8.  c.  5  Am.  R.  265. 

8  1  Dan.  Neg.  Inst.  §  779.     But  see  Scott  T.  Johnson,  5  Bosw.  213. 

9  2  Pars,  on  Prom,  N.  <fec.  274 ;  Ball  v.  Consolidated,  <fcc.  Co.  32  N.  J.  L.  102 ;  Par- 
ker  v.  Raynal,  1  La.  Ann.  209. 

10  Lord  v.  Wilkinson,  56  Barb.  593. 

II  Pars,  on  Prom.  N.  «fec.  258. 

19  Id. ;  and  see  p.  225  of  this  voL     Compare  Kellogg  v.  French,  15  Gray,  854. 


MUNICIPAL  AND  OTHER  COUPON  BONDS.  451 

to  whom  it  is  offered,  of  the  alleged  defect,  are  sufficient  to  estab- 
lish notice.1  But  the  fact  that  tlie  terms  of  the  instrument  indi- 
cate a  special  consideration,  such  as  a  warranty,  for  instance,  do 
not  charge  the  transferee  with  notice  of  a  breach.2  The  duty  of 
inquiry  raised  by  a  mistake  of  date  apparent  on  the  face  of  the 
note,  is  satisfied  by  inquiry  as  to  the  fact  of  date ;  and  does  not 
charge  with  knowledge  of  a  disconnected  matter,  such  as  defect 
of  authority  in  an  agent.3 

122.  Negligence.'] — Proof  that  the  holder  was  in  such  a  situa- 
tion as  that  he  might  have  had  notice,  had  he  been  diligent  in 
making  inquiries  which  the  situation  offered  and  invited  liim  to 
make,  is  not  enough.4    Hence  suspicious  circumstances, — such  as 
that  the  seller,  alleged  to  have  diverted  .the  paper,  was  embar- 
rassed in  circumstances  "and  did  business  with  plaintiff  as  agent;5 
or  that  he  offered  it  for  a  less  sum  than  at  the  legal  rate  of  dis- 
count;8 or  that  the  paper  was  nearly  due;7  are  not  alone  suffi- 
cient evidence  of  bad  faith.    Mere  negligence  in  taking  the  paper, 
however  gross,  is  not  sufficient  as  matter  of  law.8    But  while 

fross  negligence  is  not  itself  bad  faith,  it  may  be  competent  evi- 
ence  for  the  jury.9 

XII.   MUNICIPAL  AND  OTHER  COUPON  BONDS. 

123.  Title.']  Possession  of  bonds  drawn  or  indorsed  so  as  to 
be  payable  to  bearer,  is  frima  facie  evidence  of  title.10  The  iden- 
tity of  the  bonds  produced  with  those  alleged  in  the  complaint, 
may  be  assumed  if  no  objection  is  made  at  the  trial.11    In  an  action 
on  coupons,  the  possession  of  the  coupons  is  prima  facie  evidence 
that  the  holder  of  them  is  the  holder  of  the  bonds  from  which 
they  were  cut,  without  producing  the  bonds  themselves.12 

1  Goodman  T.  Simonds,  20  How.  (U.  S.)  342,  365 ;  Iron  Mountain  Bank  v.  Mnr- 
dock,  62  Mo.  70 ;  Collins  v.  Gilbert,  94  U.  S.  (4  Otto),  753.  As,  for  instance,  where 
printed  words  were  erased  but  still  visible.  Angle  v.  Northwestern  Mutual  Life 
Insurance  Co.  92  U.  S.  (2  Otto),  330,  341.  Absence  from  the  bond  of  a  scrip  certifi- 
cate which  had  been  pinned  to  it  and  was  referred  to  in  it, — held  competent  but  not 
sufficient  evidence  to  put  the  purchaser  on  inquiry.  Hotchkiss  v.  National  Banks, 
21  Wall.  358 ;  and  see  47  N.  Y.  143. 

*  Mabie  v.  Johnson,  8  Hun,  309. 

8  Miller  v.  Crayton,  3  Supra.  Ct.  (T.  <fc  C.)  360. 

*  Lake  v.  Reed,  29  Iowa,  258,  s.  o.  4  Am.  R.  209 ;  Collins  v.  Gilbert,  94  U.  S. 
(4  Otto),  758. 

6  Farmers'  &  Citizens'  Nat.  Bank  v.  Noxon.  45  N.  Y.  762. 

6  Mechanics'  Bank  of  Williamsburgh  v.  Foster,  44  Barb.  87,  s.  o.  19  Abb.  Pr.  47 ; 
29  How.  Pr.  408. 

1  Marine  Bank  of  New  York  v.  Clements,  31  N.  Y.  33. 

8  Chapman  v.  Rose,  56  N.  Y.  137,  rev'g  44  How.  Pr.  364;  Brown  v.  Spofford,  95 
U.  S.  (5  Otto),  474,  478. 

9  Collins  v.  Gilbert  (above) ;  Jones  v.  Gordon  (H.  of  L.)  37  Law  Times,  N.  S.  480; 
2  Pars  on  Prom.  N.  <fec.  279. 

10  Martin  v.  Somerville  Water  Power  Co.  27  How.  Pr.  161,  169. 

11  Wickes  v.  Adirondack  Co.  4  Supln.  Ct.  (T.  A  C.)  260.     Compare  Chambers 
County  v.  Clews,  21  Wall.  817. 

»  Aurora  City  v.  West,  7  Wall.  82 ;  Doming  v.  Inhabitants  of  Houlton,  64  Me. 
254,  s.  o.  18  Am.  R.  253 ;  and  see  6  Moak's  fing.  120,  n. 


452  ACTIONS  ON  NEGOTIABLE  PAPER. 

124.  Evidence  of  regularity  and  power '.]— A  municipal  cor- 
poration is  not  estopped  from  asserting  the  invalidity  of  its  bonds 
by.  the  conduct  of  its  officers  or  agents,  or  acts  of  acquiescence 
on  the  part  of  the  inhabitants.1    Want  of  power  in  the  officer  by 
whom  the  act  was  performed  cannot  be  supplied  by  estoppel 
drawn  from  the  conduct  of  the  officer,  nor  by  ratification  by 
him ;  and  want  of  power  in  the  corporation  cannot  be  supplied 
by  estoppel  against  it  or  ratification  by  it.     But  if  it  had  power, 
want  of  its  delegation  to  the  officer  may  be  supplied  by  estoppel 
or  by  ratification,  drawn  from  its  own  conduct  or  silence.2 

In  favor  of  a  bona  fide  purchaser  for  value  and  before  matur- 
ity, or  an  assignee  of  such  a  purchaser,  the  recital  in  municipal 
bonds,  by  officers  empowered  to  determine  the  question,  that  the 
precedent  conditions  prescribed  by  law -have  been  performed,  is 
conclusive.3  The  recital  is  itself  a  decision  of  the  fact  by  the  ap- 
pointed tribunal.4  And  the  certificate  of  the  proper  officer  that 
the  bond  has  been  duly  issued  and  the  signatures  are  genuine,  and 
that  the  same  has  been  duly  registered  in  his  office  according  to 
law,  cannot  be  contradicted  by  evidence  that  there  was  actually 
no  registration  in  his  office.5  But  the  validity  or  existence  of  the 
alleged  statute  may  be  impeached  against  any  holder.6  If  it  ap- 
pear on  the  face  of  the  bonds  that  they  are  not  in  conformity 
with  the  act,  the  holder  cannot  prove  ignorance 7  of  the  terms  of 
the  act. 

125.  Notice  of  defect,  <&c.~\ — The  non-payment  of  a  single 
coupon  overdue  since  the  commencement  01  the  month  in  which 
the  bond  was  purchased,  though  competent  on  the  question 
whether  plaintiff  is  a  lonafide  holder,  yet,  in  connection  with  the 
fact  that  previous  coupons  had  been  paid,  is  entirely  insufficient 
to  charge  him  with  notice  or  duty  of  inquiry.8    The  number  of  a 
coupon  bond,  being  essential  to  identity,  may  be  regarded  as  ma- 
terial, within  the  rule  as  to  alterations.9 


1  "Weismer  r.  Village  of  Douglass,  64  N.  Y.  91,  105. 

2  5  Abb.  N.  Cas.  49,  note,  and  cases  cited. 

8  Commissioners,  <fec.  v.  Bolles,  94  U.  S.  108,  and  cases  cited ;  and  notwithstand- 
ing error  in  the  recital.  Commissioners,  <fec.  v.  January,  Id.  206.  Thus  it  is  conclu- 
sive as  to  the  validity  and  genuiness  of  the  signatures  of  the  requisite  number  of  tax 
payers,  (Town  of  Venice  Y.  Murdock,  92  U.  S.  [2  Otto],  494);  as  to  the  giving  of 
regular  notice  of  the  popular  election,  which  was  a  condition  precedent,  (Humboldt 
Township  v.  Long,  Id.  642);  and  that  the  value  of  the  taxable  property  of  the  town- 
ship was  in  amount  sufficient,  (Marcy  v.  Township  of  Oswego,  Id.  637). 

4  Town  of  Ooloma  v.  Eaves,  92  U.  S.  (2  Otto),  484 ;  and  see  Van  Hostrup  v.  Mad- 
ison City,  1  Wall.  291. 

6  Township  of  Rock  Creek  v.  Strong,  96  U.  S.  (6  Otto),  271,  278. 

•  Town  of  S.  Ottawa  v.  Perkins,  94  U.  S.  (4  Otto),  267.  As  to  the  mode  of  doing 
this,  see  3  Abb.  New  Cas.  372,  note. 

7  Horton  v.  Town  of  Thompson,  71  N.  T.  514,  reVg  7  Hun,  452. 

8  Cromwell  v.  County  of  Sac,  96  U.  S.  (6  Otto),  51,  57. 

9  Force  v.  City  of  Elizabeth,  28  N.  J.  Eq.  403,  and  casts  cited. 


BANK  CHECKS.  453 


XIII.   BANK  CHECKS. 

126.  Stamp.'] — The  provision  of  the  internal  revenue  law l  ex- 
cluding checks,  drafts  and  orders,  or  copies  thereof,  from  admis- 
sion in  evidence  unless  duly  stamped,  applies  only  to  United 
States  courts,  not  to  the  State  courts.2    Omission  to  stamp,  to  de- 
feat the  paper,  must  be  shown  to  have  been  done  with  intent  to 
defraud  the  revenue.3    It  is  not  enough  to  show  that  it  was  done 
intentionally  for  another  purpose.4  •  The  burden  of  proving  a  lost 
instrument  to  have  been  unstamped  is  on  the  party  objecting  to 
its  production.     There  being  no  evidence  on  either  side,  it  will 
be  presumed  to  have  been  stamped.     When  it  has  been  shown 
that  at  any  particular  time  it  was  unstamped,  the  burden  is  shifted, 
and  the  party  relying  upon  it  must  prove  that   it  was  duly 
stamped/ 

127.  Title.] — Production  is  the  same  evidence  of  title  as  in 
the  case  of  other  negotiable  paper.6    The  payee  may  recover  in 
his  own  name,  although  another  person  may  be  interested  in  the 
proceeds.7    Evidence-  of  usage  is  competent  to  show  that  a  bank 
which  in  good  faith  receives  a  check  from  a  depositor  and  passes 
it  to  his  credit,  and  on  the  same  day  pays,  and  charges  against 
such  deposit,  checks  drawn  by  him,  is  a  oona  fide  holder  of  the 
deposited  check  for  value.8 

A  check  payable  to  a  fictitious  or  impersonal  payee,  is  admis- 
sible under  an  allegation  of  a  check  payable  to  bearer.9 

128.  Oral  evidence  to  vary.'] — In  accordance  with  rules  already 
stated,10  it  is  not  competent  to  vary  the  terms  of  the  check  by 
showing  a  contemporaneous  oral  agreement  that  payment  was  not 
to  be  demanded  at  maturity,  but  that  time  was  to  be  given  at  the 
election  of  the  drawer,11  or  was  to  be  made  in  uncurrent  funds.12 
But  oral  evidence  that  it  was  given  as  security  for  a  proposed 
loan  which  was  not  made,  and  that  it  had  therefore  no  considera- 
tion, is  admissible.13 


I  U.  S.  R.  S.  §  3421. 

s  People  ex  rel.  Barbour  v.  Gates,  43  N.  Y.  40,  rev'g  57  Barb.  291,  s.  o.  39  How. 
Pr.  74.  Contra,  Chat-tiers  &  Robinson  Turnpike  Co.  v.  McNamara,  72  Penn.  St.  278, 
a  c.  13  Am.  R.  673. 

a  Baker  v.  Baker,  6  Lans.  609. 

4  Redlich  v.  Doll,  64  N.  Y.  234.     Rules  applicable  to  affixing  of  stamps  by  col- 
Lector,  to  cure  omission.     14  Wall.  861.^ 

5  Marine  Investment  Co.  v.  Haviside,  L.  R.  8  H.  of  L.  624,  s.  c.  4  Moak's  Eng.  17. 

6  Townsend  v.  Billinge,  1  Hilt.  853 ;  Cruger  v.  Armstrong,  5  Johns.  Cas.  7. 

7  Fish  v.  Jacobsohn,  2  Abb.  Ct.  App.  Dec.  132. 

8  Market  Bank  v.  Hartshorne,  3  Abb.  Ct.  App.  Dec.  173,  s.  c.  3  Keyes,  137.    Conv 
pare  National  Gold  Bank  &  Trust  Co.  v.  McDonald,  61  Cal.  64,  s.  c.  21  Am.  R.  697. 

9  Mechanics'  Bank  v.  Straiton,  8  Abb.  Ct.  App.  Dec.  269,  s.  c.  86  How.  Pr.  190. 

10  Paragraphs  36,  <fec. 

II  Hill  v.  Gaw,  4  Barr  (Pa.)  493. 

18  Pack  v.  Thomas,  21  Miss.  (13  Smedes  <fe  M.)  11. 
13  Bernhard  v.  Brunner,  4  Bosw.  528. 


454  ACTIONS   ON  NEGOTIABLE  PAPER. 

129.  Laches.'] — Unreasonable  delay  in  the  presentment  of  a 
check,  if  relied  on  as  a  defense,  should  be  averred  in  the  answer.1 
The  better  opinion  is  that  the  court  will  not  presume  laches 
against  the  plaintiff  without  some  evidence  indicating  it ; a  but  if 
delay  and  injury  thereby  is  shown,  the  burden  is  on  plaintiff  to 
prove  an  excuse  for  the  delay.8    For  this  purpose  evidence  of 
usage  of  the  place  is  competent ; 4  but  it  must  be  shown ;  it  can- 
not be  presumed  to  exist  without  evidence.5 

130.  Action  against  drawer.'] — A  simple  check  which  has  not 
been  presented  for  payment,  is  not  evidence  of  indebtedness  from 
the  drawer  to  the  payee,  before  demand.    But  after  dishonor  and 
notice  the  check  imports  a  debt  from  the  drawer  to  the  payee, 
and  it  may  be  sued  on  without  proving  the  consideration,  value 
received  being  presumed.6 

Plaintiff  may  show  that  the  check,  though  drawn  in  the  name 
of  one  partner  onlv  was  so  drawn  pursuant  to  usage  of  the  de- 
fendant's firm  to  keep  their  bank  account  in  that  name,  and  that 
he  advanced  the  consideration  upon  credit  of  the  firm,  and  not 
upon  the  individual  security  of  the  partner  in  whose  name  the 
check  was  drawn.7  A  check  is  presumed  to  be  drawn  against  a  de- 
posit ; 8  and  plaintiff  must  aver  and  prove  either  demand,  non- 
payment, and  notice  to  the  drawer,  or  such  facts — for  example, 
want  of  funds  at  the  bank,  or  stopping  payment — as  dispense 
with  demand  and  notice.9 

A  check  with  "  memorandum "  or  "  mem."  written  on  its  face, 
is,  according  to  the  usage  of  merchants,  a  mere  due  bill,10  and  de- 
mand and  notice  are  unnecessary.11 

131.  Action  against  the  Bank^\ — The  holder  of  a  bank  check, 
whether  a  private  person  or  a  public  officer,  suing   the   bank 
thereon,  must  prove,  either  that  the  bank  accepted  or  certified  it, 
or  that  they  charged  it  against  the  drawer.12    Against  a  bona  fide 
holder,  evidence  of  violation  of  instructions,13  or  want  of  funds,14 
or  the  holder's  delay  in  presenting  for  payment,15  is  not  available. 

1  See  Harbeck  v.  Craft,  4  Duer,  122. 

2  Smith  v.  Janes,  20  Wend.  192. 

3  Hazleton  v.  Colburn,  1  Robt.  345,  s.  c.  2  Abb.  Pr.  N.  S.  199. 

4  Turner  v.  Bank  of  Fox  Lake,  4  Abb.  Ct.  App.  Dec.  434,  affi'g  23  How.  Pr.  399. 
*  Smith  v.  Miller,  43  N.  Y.  171,  rev'g  6  Robt.  157,  413,  a.  c.  6  Abb.  Pr.  N.  S.  234. 
6  2  Dan.  Neg.  Inst.  §  560. 

I  Crocker  v.  Colwell,  46  N.  Y.  212. 

8  White  v.  Ambler,  8  N.  Y.  170. 

9  Shultz  v.  Depuy,  3  Abb.  (N.  Y.)  Pr.  25Q.    But  as  to  pleading,  see  Requa  v. 
Guggenheim,  3  Lans.  61. 

10  U.  S.  v.  Isham,  17  Wall.  602. 

II  Turnbull  v.  Osborne,  12  Abb.  Pr.  N.  S.  200. 

12  Bank  of  the  Republic  v.  Millard,  10  Wall.  152,  and  cases  cited.     And  see  Attor- 
ney General  v.  Continental  Life  Ins.  Co.  71  N.  Y.  325,  rev'g  10  Hun,  604. 

13  Farmers'  <fc  Mechanics'  Bank  v.  Butchers'  <fc  Drovers'  Bank,  4  Duer,  219,  affi'd  in 
16  N.  Y.  125,  s.  c.  Id.  623,  28  Id.  425  ;  Merchants'  Bank  v.  State  Bank  (below). 

14  Phoenix  Bank  v.  Bank  of  America,  1  N.  Y.  Leg.  Obs.  26  ;  Meads  v.  Merchants' 
Bank  of  Albany,  25  N.  Y.  143. 

»  Willets  v.  Phoenix  Bank,  2  Duer,  121,  s.  c.  11  N.  Y.  Leg.  Obs.  211,  1  Liv  L, 


STOCK  AND  PREMIUM  NOTES.  455 

The  authority  of  a  cashier  to  certify  a  check  drawn  by  a  third 
person l  may  be  inferred  by  the  jury  from  evidence  that  with  the 
knowledge  and  acquiescense  of  the  directors  he  had  frequently 
pledged  the  credit  of  the  bank,  in  other  similar  ways ;  for  exam- 
ple, by  certificates  of  deposit,  memoranda,  etc.,  and  from  evidence 
of  usage  to  the  same  effect  in  other  banks  of  the  same  place.3 

XIY.   STOCK  AND  PREMIUM  NOTES. 

132.  Stock  notes.'] — Although  the  note  sued  on  is  in  form  for 
premiums,  plaintiff  may  allege  and  prove  that  it  was  in  fact  given 
and  taken  as  a  capital-stock  note,  and  used  as  such  in  organizing 
the  company,  so  as  to  recover  its  entire  amount,  without  showing 
that  it  has  been  assessed.3 

133.  Premium  notes.'] — In  the  absence  of  any  denial,  in  plead- 
ing, an  admission  by  the  insured,  in  his  premium  note,  of  the  policy, 
its  number  and  date,  is  prima,  facie  evidence  of  the  issuing  and 
existence  of  the  policy,  and  of  its  contents.4    From  the  fact  that 
the  note  was  given  to  a  corporation  whose  business  was  insurance, 
as  part  of  an  insurance  premium  then  payable,  the  insurance  may 
be  presumed  to  have  been  within  the  corporate  powers.5 

134.  Losses  and  Assessments, ,] — In  an  action  on  a  premium 
note  for  losses  assessable,  plaintiff,  whether  the  corporation 6  or 
a  receiver,7  must  give  some  evidence  that  losses,  or  other  valid 
liabilities,  which  rendered  an  assessment  proper,8  actually  occurred  9 
during  defendant's  membership,10  and  that  pursuant  to  the  statute,11 
and  upon  inquiry  had,12  an  assessment  was  actually 13  and  legally 14 
made.     The  evidence  of  losses  should  be  such  as  would  avail 
against  the  corporation, — for  instance,  a  report  adjudicating  its 
insolvency ; 15  or  proof  of  judgments  recovered  against  it,  or  the 
presentment  and  allowance  of  claims ; 16  or  the  record  of  losses 


Mag.  649 ;  Farmers'  <fe  Mechanics'  Bank  v.  Butchers'  &  Drovers'  Bank,  4  Duer,  219 
16  N.  Y.  125,  14  Id.  623,  28  Id.  425. 

1  Claflin  v.  Farmers'  &  Citizens'  Bank,  25  N.  Y.  293,  8.  c.  24  How.  Pr.  1,  rev'g  36 
Barb.  540 ;  Pope  v.  Bank  of  Albion,  59  Barb.  226. 

2  Merchants'  Bank  v.  State  Bank,  10  Wall.  604. 

3  Sands  v.  St.  John,  36  Barb.  628,  8.  c.  23  How.  Pr.  140 ;  s.  p.  Sand  v.  Son,  56  N. 
Y.  662,  rev'g  1  Supm.  Ct.  (T.  &  C.)  adden.  13. 

*  Way  v.  Billings,  2  Mich.  (Gibbs),  897. 

5  Mutual  Benefit  Life  Ins.  Co.  v.  David,  12  N.  Y.  (2  Kern.)  569. 
8  Atlantic  Mut.  Fire  Ins.  Co.  v.  Fitzpatrick,  2  Gray,  279,  281. 
i  Jackson  v.  Roberts,  81  N.  Y.  304. 

8  Jackson  v.  Roberts,  31  N.  Y.  304;  Devendorf  v.  Beasley,  22  Barb.  656;  Ameri- 
can Ins.  Co.  v.  Schmidt,  19  Iowa,  502. 

•  Pacific  Mut.  Ins.  Co.  v.  Guse,  49  Mo.  329,  s.  c.  8  Am.  R.  132. 

10  Manlove  v.  Bender,  89  Ind.  871,  s.  o.  13  Am.  R.  280. 

11  Thomaa  v.  Whallon,  81  Barb.  172. 

19  Sands  v.  Graves,  68  N.  Y.  94,  rev'g  1  Supm.  Ct.  (T.  <fe  C.)  adden.  13. 

13  Id.  • 

14  Augusta  Mut.  Fire  Ins.  Co.  v.  French,  39  Me.  522,  625. 

15  Sands  v.  Shoemaker.  4  Abb.  Ct.  App.  Dec.  149. 

18  Sands  v.  Kimbark,  27  N.  Y.  147,  affi'g  89  Barb.  108;  see,  also,  Sands  v.  Ilill, 
42  Barb.  651. 


456  ACTIONS  ON  NEGOTIABLE  PAPER. 

kept  by  the  company.1  Evidence  that  there  was  ground  for  an 
assessment  cannot  supply  the  omission  to  assess,2  nor  can  the  ex- 
istence of  an  assessment  raise  a  sufficient  presumption  of  liabil- 
ities.8 

135.  Defenses.'] — If  defendant  relies  on  want  or  failure  of  con- 
sideration, such  as  the  fact  that  the  company  has  not  earned  pre- 
miums from  him  to  the  amount  of  the  note,  the  burden  is  on  him 
to  prove  it.4  So,  if  he  relies  on  the  insolvency  of  the  company, 
at  the  time  of  issuing  the  policy,  known  to  its  officers  and  to  the 
plaintiff,  the  burden  is  on  him  to  prove  such  knowledge.5 

The  form  of  a  note  is  not  conclusive,  but  it  may  be  shown  to 
have  been  given  as  a  stock  or  capital  note,  and  tnus  let  in  the 
statute  of  limitations.6  Nor  is  an  apparent  assessment  conclusive.7 


1  People's  Mut.  Ins.  Co.  v.  Allen,  10  Gray,  297, 

8  Sands  v.  Graves,  68  N.  Y.  94,  rev'g  1  Supm.  Ct.  (T.  &  C.)  adden.  18. 

8  Pacific  Mut.  Ins.  Co.  v.  Guse,  49  Mo.  329,  s.  o.  8  Am.  R.  132.  Compare  Sands 
v.  Hill,  42  Barb.  651.  As  to  demand,  etc.,  see  Sands  v.  Shoemaker,  4  Abb.  Ct.  App. 
Dec.  149 ;  and  Sands  v.  Graves  (above),  and  cases  cited ;  Sands  v.  Lilieuthal,  46  N. 
Y.  541. 

*  Nelson  v.  Wellington,  5  Bosw.  178.  . 

8  Clark  v.  Metcalf,  54  N.  Y.  683. 

6  Sand  v.  Son,  56  N.  Y.  662,  rev'g  1  Supm.  Ct.  (T.  &  C.)  adden.  13. 

7  People's  Mut.  Fire  Ins.  Co.  v.  Westcott,  14  Gray,  440 ;  and  see  Sanda  v.  Sweet, 
44  Barb.  108. 


CHAPTEE  XXII. 

ACTIONS  ON  NON-NEGOTIABLE  PROMISSORY  NOTES. 

Peculiar  rules."] — Most  of  the  rules  stated  in  the  first  di< 
vision  of  the  last  chapter  apply ;  but  in  qualification  of  them  it 
it  should  be  observed  that  in  case  of  non-negotiable  paper,  pos- 
session by  one  other  than  the  payee  is  not,  alone,  evidence  of 
title ;  *  nor  is  possession  necessary,  to  enable  to  recover.2  Consid- 
eration must  be  alleged  and  proved.3  The  words  ''for  value  re- 
ceived "  in  pleading  are  a  sufficient  allegation ; 4  and  in  the  instru- 
ment sure  prim  a  facie  evidence  of  consideration.5  If  a  considera- 
tion is  indicated,  but  its  actual  payment  is  not,  the  fact  that  it 
had  passed  should  be  alleged  and  proved.6 

Oral  evidence  is  not  competent  to  show  that  a  non-negotiable 
note  was  intended  to  have  a  negotiable  quality,7  such  as  that  of 
entitling  an  indorser  to  notice,8  but  he  is  liable  as  guarantor  or 
joint  maker,  according  to  the  intention  of  the  contract,  which 
may  be  shown  by  oral  evidence ; 9  and  notice  need  not  be  proved 
though  alleged.10 

1  Barrick  v.  Austin,  21  Barb.  241. 

2  Rose.  N.  P.  351.     Proof  of  loss  is  enough  without  proof  of  destruction.     2  Pars. 
onPr.  N.  290. 

3  Spear  v.  Downing,  34  Barb.  522,  8.  c.  12  Abb  Pr.  437,  22  How.  Pr.  30. 

4  Id. 

6  Jerome  v.  "Whitney,  7  Johns,  321. 

8  Spear  v.  Downing  (above);  Considerant  v.  Brisbane,  14  How.  Pr.  487;  Evans 
v.  Williams,  60  Barb.  346. 

1  Ballard  Pavement  Co.'v.  Mandel,  2  MacArthur,  351,  359. 

8  Richards  v.  Warring,  4  Abb.  Ct.  App.  Dec.  47 ;  Cromwell  v.  Hewitt,  40  N.  Y. 
491,  16  Alb.  L.  J.  47,  and  cases  cited. 

9  Id.,  and  see  pp.  437-440  of  this  voL 

10  Billingham  v.  Bryan,  10  Iowa,  317. 


[457] 


CHAPTER  XXIII. 

ACTIONS  ON  ACCOUNTS  STATED. 

1.  Grounds  of  action.  9.  Tacit  assent  to  account  stated 

2.  Pleading.  10.  Defendant's  evidence  to  disprove 
8.  Character  of  the  parties.  assent. 

4.  The  account  and  its  statement.  11.  Incapacity. 

6.  The  promise.  12.  Impeaching  the  account  itself. 

6.  Testimony  of  witness :  production  13.  Consideration. 

of  account.  14.  Omissions  and  errors. 

7.  Res  geste.  15.  Offsets. 

8.  Express  assent.  16.  Limitations. 

1.  Grounds  of  action. ,] — An  account  stated  is  an  agreement 
between  persons  who  have  had  previous  transactions,  nxing  the 
amount  due  in  respect  of  such  transactions,  and  promising  pay- 
ment.    As  distinguished  from  a  mere  admission  or  acknowledg- 
ment, it  is  a  new  cause  of  action,1  and  hence,  if  appearing  to  have 
been  made  since  the  action  commenced,  is  not  competent  in  evi- 
dence.2   An  account  stated  is  not  now  regarded  as  a  contract 
upon  new  consideration,  and  does  not  create  an  estoppel,  but  it 
establishes prima facie  the  accuracy  of  the  items  without  further 
proof.     The  statement  is  not  the  equivalent  of  an  express  promise 
to  pay  the  balance  when  the  items  do  not  constitute  a  legal  debt 
or  duty.3 

2.  Pleading.'] — An  allegation  that  one  party  made  a  state- 
ment of  an  account,  and  delivered  it  to  the  other,  who  made  no 
objection  to  it,  is  not  an  allegation  that  an  account  was  stated  be- 
tween them.     These  are  but  matters  of  evidence  tending  to  show, 
but  not  conclusively,  an  account  stated.      If  an  account  stated  is 
alleged,  the  original  consideration  need  not  be  alleged  nor  proved.5 

Under  the  new  procedure,  the  question  whether  evidence  of 
the  original  indebtedness  is  competent  where  plaintiff  fails  to 


1  An  unsigned  account  is  not  a  new  cause  of  action  for  the  purpose  of  enabling 
plaintiff  to  recover  in  an  action  brought  after  the  original  cause  of  action  was  barred 
by  the  statute  where  the  statute  requires  a  new  promise  to  be  in  writing,  signed,  <fec. 
Chace  v.  Trafford,  1 16  Mass.  629,  s.  c.  17  Am.  R.  171.  Compare  Smith  v.  Forty,  4 
C.  &  P.  126  ;  N.  Y.  Code  Civ.  Pro.  §  395. 

4  Rose.  N.  P.  590. 

3  Young  v.  Hill,  67  N.  Y.  162,  rev'g  6  Hun,  613.     Compare  Melchior  v.  McCarty, 
81  Wise.  252,  s.  c.  11  Am.  R.  605  ;  Seago  v.  Deane,  4  Bing.  459.     As  to  jump  settle- 
ments, see  Calkins  v.  Griswold,  11  Hun,  208  ;  Hamilton,  <fec.  Co.  v.  Goodrich,  6  Allen, 
191,  199. 

4  Emery  v.  Pease,  20  N.  Y.  62.     But  if  there  is  no  dispute  as  to  the  facts,  it  is 
competent  for  the  court  to  instruct  the  jury  that  such  an  account  is  a  stated  account. 
Toland  v.  Sprague,  12  Pet.  800. 

*  1  Steph.  N.  P.  362;  1  Chit.  PL  358 ;  Milward  v.  Ingram,  2  Mod.  43. 

[458] 


ACTIONS  ON  ACCOUNTS  STATED.  4:59 

prove  the  statement  of  an  account,  depends  on  whether  defend- 
ant has  been  misled  to  his  prejudice  by  the  variance.  If  not,  the 
pleading  is  amendable.1 

3.  Character  of  the  parties.'] — If  defendant  accounted  with 
plaintiff  in  a  particular  character,  he  will  be  taken  to  have  ad- 
mitted that  character.2 

4.  The  account  and  its  statement.'] — It  is  not  necessary  to 
show  a  mutual  account 8  between  the  parties,  nor  even  any  account 
in  the  commercial  sense,  nor  more  than  one  item.4    The  transac- 
tions must  be  past  transactions,5  but  the  dates  in  the  statement 
are  sufficient  proof  of  this.     The  statement  must  be  express,  and 
fix  a  sum,6  but  it  is  not  essential  that  it  include,  or  purport  to  in- 
clude, all  indebtedness  between  the  parties.     If  it  fix  the  sum  for 
a  certain  period,  it  is  competent,  leaving  defendant  to  establish  a 
set-off.7 

An  allegation  of  account  stated  is  supported  by  evidence  that 
the  parties  actually  met  and  considered  and  agreed  upon  the  items 
and  the  result,8  or  by  evidence  of  a  bill  rendered  by  one  and  not 
objected  to  by  the  other,9  or  by  the  delivery  of  the  common  pass- 
book of  the  parties,  balanced,10  or  by  an  award  of  arbitrators  if 
coupled  with  an  admission  that  the  balance  was  due ; n  but  with- 
out some  such  ratification  an  award  is  not  competent.12 

5.  The  promise.'] — To  prove  an  account  stated  the  evidence 
must  justify  the  inference  of  an  agreement 13  as  distinguished  from 
a  mere  admission.14    Thus  a  compulsory  admission  by  a  witness,15 


1  Woolsey  v.  Village  of  Rondout,  4  Abb.  Ct.  App.  Dec.  639  ;  and  see  Goings  v. 
Patten,  1  Daly,  168,  s.  o.  17  Abb.  Pr.  339  ;  Smith  v.  Glens  Falls  Ins.  Co.  66  Barb. 
556  ;  62  N.  Y.  85  ;  Greenfield  v.  Mass.  Mut.  Life  Ins.  Co.  47  N.  Y.  430.  Otherwise 
at  common  law. 

*  Peacock  v.  Harris,  10  East,  104  ;  Rose.  N.  P.  590. 

3  See  Case  v.  Hotchkiss,  1  Abb.  Ct.  App.  Dec.  324 ;  Cobb  v.  Arundell,  26  Wise. 
553. 

4  See  cases  below. 

5  Mellon  v.  Campbell,  11  Penn.  St.  415.     But  money  due  on  a  sealed  instrument 
is  not  alone  matter  for  an  account  stated  ;  Middleditch  v.  Ellis,  2  Exch.  623;  Rtsc. 
N.  P.  590.     Otherwise  if  it  be  included  with  other  items.     Foster  v.  Allanson,  2 
Term.  R.  479.     Compare  Young  v.  Hill,  67  N.  Y.  162,  reVg6  Hun,  613.     Compound 
interest  is  not  recoverable  merely  because  included  in  an  account  stated.     Young  v. 
Hill  (above). 

6  Bouslog  v.  Garrett,  39  Ind.  338 ;  Lane  v.  Hill,  18  Q.  B.  252 ;  Bernasconi  v.  An- 
derson,  M.  <fe  M.  183. 

I  Filer  v.  Peebles,  8  N.  H.  226. 

8  Darlington  v.  Taylor,  3  Grant.  195 ;  and  see  McCullough  v.  Judd,  20  Ala.  703. 

•  Cobb  v.  Arundell  (above);  Wiggins  v.  Burkham,   10  Wall.    129,  and  without 
itemizing.    May  v.  Kloss,  44  Mo.  300. 

10  Hutchinson  v.  The  Bank,  48  Barb.  302. 

II  Buschman  v.  Morling,  30  Md.  384;  Salmon  v.  Watson,  4  B.  Moore,  73. 
19  Bates  v.  Townley,  2  Exch.  152. 

13  Robertson  v.  Wright,  17  Gratt.  534. 

14  Breckoa  v.  Smith,  1  Ad.  «fe  E.  488. 

15  Tucker  v.  Barron,  7  B.  &  C.  623. 


460  ACTIONS  ON  ACCOUNTS  STATED. 

or  assent  obtained  by  a  threat  to  sell  the  property  of  the  party,1 
or  the  act  of  a  clerk  in  giving  a  transcript  from  corporate  books, 
without  evidence  of  intent  to  state  the  account,8  is  not  enough. 
But  the  agreement  may  be  implied  from  circumstances.8  A  writ- 
ten promise  need  not  be  proved,4  nor  even  an  express  promise.5 
But  a  written  admission,  such  as  implies  a  promise,  may  be  proved, 
though  made  in  any  form,  such,  for  instance,  as  a  signature  of  the 
account ; 6  or  a  due  bill,  though  naming  no  payee  j"  or  a  note,  if 
absolute  as  to  the  indebtedness,  though  conditional  as  to  time  of 
payment ; 8  or  a  letter  acknowledging  correctness  of,9  or  making  no 
objection  to,  an  account  rendered,  and  drawing  for  the  precise 
balance.10  An  admission  in  a  writing  under  seal  will  sustain  the 
action  if  the  instrument  is  not  a  substitute  for  or  merger  of  the 
original  simple  contract.11 

A  qualified  acknowledgment  is  not  enough  ; 12  but  an  unquali- 
fied admission  of  a  single  item  is  competent ; 13  and  objection  to 
one  item  alone  may  imply  admission  of  the  rest.14  , 

If  the  account  was  stated  by  or  to  an  agent  there  must  be  evi- 
dence of  his  authority 15  at  the  time.16  Admission  to  a  stranger  is 
not  evidence  of  account  stated.17 

6.  Testimony  of  witness:  Production  of 'account .] — The  witness 
may  state  what  he  understood  at  the  time  as  the  agreement  of  the 
parties,  if  it  be  his  impression  as  to  what  was  said,18  though  he  can- 
not recollect  the  precise  language  ;19  but  he  cannot  state  his  belief,  as 
an  inference  from  what  was  said,20  or  as  a  matter  of  opinion  respect- 
ing the  bearing  of  what  was  said  upon  the  question  of  fact.21  The 


1  Stenton  v.  Jerome,  54  N.  Y.  480. 

8  Harvey  v.  West  Side  Elevated  Rw.  Co.  13  Hun,  392. 

3  Stebbins  v.  Niles,  25  Miss.  267. 

4  Freeman  v.  Howell,  4  La  Ann.  196.     A  corporate  resolution,  though  unrecorded, 
is  enough.     St.  Mary's  Church  v.  Cagger,  6  Barb.  576. 

5  But  between  partners,  an  express  promise  must  be  proved,  4  Abb.  N.  Y.  Dig. 
new  ed.  736 ;  Rose.  N.  P.  590. 

6  Montgomerie  v.  Ivers,  17  Johns.  38. 

7  Fesenmayer  v.  Adcock,  16  Mees.  <fe  W.  449.     If  defendant  relies  on  the  fact  that 
plaintiff  is  not  the  true  payee,  it  is  for  defendant  to  prove  it.     Id. 

8  Nunez  v.  Dautel,  19  Wall  560;  Morgan  v.  Jones,  1  C.  <fc  J.  162,  s.  P.  Rose.  N.  P. 
382 ;  Lemere  v.  Elliott,  6  H.  <fc  N.  656. 

9  Vinal  v.  Burrill,  16  Pick.  401. 

10  Lockwood  v.  Thorne,  11  N.  Y.  170,  rev'g  12  Barb.  487. 

11  Hoyt  v.  Wilkinson,  10  Pick.  33. 
"  Rose.  N.  P.  688. 

13-2  Whart.  Ev.  §  1140. 

14  Rose.  N.  P.  590. 

15  Rose.  N.  P.  589;  Harvey  v.  West  Side  Elevated  Rw.  Co.  13  Hun,  392. 

14  Thallimer  v.  Brinckerhoff,  4  Wend.  394.  An  account  stated  by  the  treasurer  of 
a  corporation  is  evidence  to  charge  the  corporation.  Davis  v.  Georgetown  Bridge 
Co.  1  Cranch  C.  Ct.  147.  Compare  note  2,  above. 

"  Rose.  N.  P.  590. 

»  Thomas  v.  White,  11  Ind.  132. 

11  See  Chaffee  v.  Cox,  1  Hilt.  78. 

*°  Williams  v.  Dewitt,  12  Ind.  309,  311. 

81  As  to  this  distinction,  see  2  Abb.  New  Cas.  22.9,  note. 


ACTIONS   ON  ACCOUNTS  STATED.  461 

parol  testimony  of  a  witness  that  the  parties  made  a  settlement 
of  accounts  in  his  presence,  his  knowledge  -being  derived  from 
declarations  and  admissions  to  each  other  in  his  hearing,  is  not 
rendered  incompetent  by  the  fact  that  the  settlement  was  based 
on  a  written  memorandum  produced  by  one  of  the  parties  at  the 
time,  and  which  was  not  shown  to,  and  never  in  the  possession  of 
the  witness.1  But  if  the  agreement  proved  by  the  witness  was 
an  assent  to  the  written  statement,  the  paper  should  be  pro- 
duced, or  its  absence  accounted  for.2  If  the  statement  so  agreed 
to  was  a  copy,  it  is  not  necessary  to  produce  the  books  or  other 
original ; 3  but  the  original  is  better  evidence  than  a  copy  of  the 
copy.4  Defendant's  admission  that  the  account  examined  by  him 
was  correct  is  admissible  against  him,  although  made  during  a 
negotiation  for  settlement.5  And  after  the  correctness  of  the 
items  of  an  account  has  been  proved,  the  account  and  entries  and 
vouchers  concerning  the  items  are  admissible,  not  as  evidence  in 
themselves,  but  as  explaining  what  is  referred  to.6  If  the  wit- 
ness's testimony  is  to  the  identity  of  the  written  statement  pro- 
duced, the  paper  is  competent,  although  he  cannot  recollect  from 
memory  the  items  he  was  directed  to  set  down,  and  vouchers  re- 
ferred to  in  the  account  are  not  produced.7 

7.  Res  gestoB.~\ — What  one  of  the  parties  said  immediately 
after  the  settlement,  and  in  explanation  of  it,  but  in  the  absence 
of  the  other,  is  not  a  part  of  the  res  gestcs  so  as  to  be  competent 
in  his  own  favor.8  • 

8.  Express  assent.'] — If  defendant's  express  assent  to  the  ac- 
count is  proved,  he  may  prove  in  his  own  favor  all  that  was  said 
by  him  in  the  same  conversation 9  that  in  any  way  qualifies  or 
explains  the  statement  already  in  evidence,  or  modifies  the  use 
that  plaintiff  might  otherwise  make  of  it.10 

9.  Tacit  assent  to  account  rendered.^ — Between  merchants  of 
the  same  n  or  different 12  countries,  or  other  persons  between  whom 
there  are  accounts  current  in  the  ordinary  course  of  business,13  if 
an  account  has  been  presented,  and  no  objection  has  been  made 
thereto,  after  a  reasonable  time,14  it  is  treated,  under  ordinary  cir- 

1  Cramer  v.  Shriner,  18  Md.  140. 
s  Vinal  T.  Burrill,  16  Pick.  401. 

3  See  Phillips  v.  Tapper,  2  Penn.  St.  323. 

4  Reddington  v.  Oilman,  1  Bosw.  235. 

8  Bartlett  v.  Tarbox,  1  Abb.  Ct.  App.  Dec.  120. 
•Id. 

I  M'Clelland  v.  Crawford,  2  Bibb  (Ky.)  386.     And  see  p.  320  of  this  vol. 
8  Rockwell  v.  Taylor,  41  Conn.  55. 

*  Compare  Nesbit  v.  Stringer,  2  Duer,  26. 

10  Rouse  v.   Whited,  25  N.  Y.  170,  rev'g  25  Barb.  279.     Compare  Delamater  v. 
Pierce,  3  Den.  315,  affi'd  in  How.  App.  Cas.  1. 

II  Wiggins  v.  Burkham,  10  "Wall.  129. 

15  Freeland  v.  Heron,  7  Cranch,  147 ;  Tickel  v.  Short,  2  Ves.  Sr.  239. 

13  Shepard  v.  Bank,  15  Mo.  143. 

14  Two  or  three  posts.     Sherman  v.  Sherman,  2  Vern.  276.    Story  says  several 
posts.     1  Story's  Eq.  Jur.  §  520. 


462  ACTIONS  ON  ACCOUNTS  STATED. 

cumstances,  as  being,  by  acquiescence,  a  stated  account,  because 
the  silence  of  the  one  to  whom  the  account  is  sent  warrants  the 
inference  of  an  admission  of  its  correctness.1  This  inference  is 
more  or  less  strong  according  to  the  circumstances  of  the  case. 
Plaintiff  better  be  prepared  with  some  evidence  that  he  re- 
ceived no  objection  from  defendant  within  a  reasonable  time  ;2 
and  to  prove  the  ordinary  course  of  mail,  if  necessary,  in  order  to 
show  that  a  reasonable  time  elapsed,  for  the  court  will  not  take 
judicial  notice  of  it.8  If  such  proof  is  made  and  no  excuse  for 
not  objecting  shown  by  defendant,  the  account  will  be  admitted 
as  a  stated  account.4  "When  thus  admitted,  the  burden  is  thrown 
upon  defendant  to  impeach  it,6  in  the  manner  stated  below.  If 
express  promise  or  assent  is  not  shown  by  direct  evidence,  the 
account  is  not  conclusive,6  but  only  shifts  tne  burden  of  proof.7 

10.  Defendants  evidence  to  Disprove  assent.'] — The  inference 
of  assent  may  be  repelled  not  only  by  direct  evidence  of  objec- 
tion made  before  the  account  was  rendered,8  or  even  after  acting 
on  it,9  but  by  any  circumstances  tending  to  a  contrary  conclusion,10 
such  as  that  the  party  was  absent  from  home,  suffering  from  ill- 
ness, or  expected  shortly  to  see  the  other,  and  intended  and  pre- 
ferred to  make  his  objections  in  person.11.    Express  assent  may  be 
rebutted  by   evidence  that  it  was  hastily  and  inconsiderately 
made.12 

11.  Incapacity."] — It  is  not  competent  to  prove  that  in  the 
opinion  of  a  witness  the  defendant  was  dull  of  comprehension,  and 
not  of  sufficient  capacity  or  education  to  understand  long  accounts,13 
unless  in  connection  with  evidence  of  unsoundness  of  mind,  or 
undue  influence  or  fraud.14 

12.  Impeaching  the  account  itself. ~] — An  account  stated  if  es- 
tablished, whether  by  express  or  implied  assent,  throws  upon  the 
other  party  the  burden  of  showing  its  incorrectness.     He  may 
prove  fraud,  omission,  or  mistake,  and  in  these  respects  he  is  in 
no  wise  concluded  by  the  admission  implied  from  his  silence  after 

1  Contra,  2  Whart.  Ev.  §  1140. 

2  According  to  some  authorities  the  burden  is  on  defendant  to  prove  objection 
made.     Ruffner  v.  Hewitt,  7  W.  Va.  685. 

3  Wiggins  v.  Burkham,  10  Wall.  129. 

4  Tolland  v.  Sprague,  12  Pet.  330;  Towsley  v.  Dennison,  45  Barb.  490.     Compare 
Guernsey  v.  Rexford,  63  N.  Y.  631. 

6  Wiggins  v.  Burkham  (above). 

6  Guernsey  v.  Rexford,  63  N.  Y.  631. 

*  Towsley  v.  Dennison,  45  Barb.  490 ;  Freeland  Y.  Heron,  7  Cranch,  14V. 

8  Cobb  v.  Arundell,  26  Wise.  553. 

9  Lock  wood  v.  Thome,  18  N.  Y.  285,  rev'g  24  Barb.  391 ;  and  explaining  UN 
Y.  170. 

10  Guernsey  v.  Rexford,  63  N.  Y.  631 ;  Champion  v.  Joslyn,  44  Id.  653. 

11  Wiggins  v.  Burkham,  10  Wall.  129. 
14  Stewart  v.  Conner,  13  Ala.  94. 

18  Stewart  v.  Conner,  13  Ala.  94. 
14  See  p.  14,  of  thisvoL 


ACTIONS  ON  ACCOUNTS  STATED.  463 

it  was  rendered.1  He  must,  however,  prove  fraud,  or  show  clear- 
ly the  error  or  mistake  on  which  he  relies  ; 2  and  it  is  conclusive 
unless  some  fraud,  mistake,  omission  or  inaccuracy  is  shown.8  An 
exception  is  recognized  when  the  parties  are  not  upon  equal 
terms,  and  then  a  court  of  equity  may  wholly  disregard  it.4 

Even  the  signing  of  the  account  by  a  party  is  not  conclusive 
evidence  of  accuracy.5  And,  on  the  other  hand,  a  clause  stating 
that  the  settlement  is  subject  to  the  correction  of  errors  and 
omissions  which  may  afterward  be  found,  does  not  render  the  ac- 
count any  the  less  a  settled  account,  and  subject  to  all  the  rules 
applicable  to  stated  accounts.6  A  mistake  in  footing  does  not  af- 
fect the  legal  effect  of  an  account  stated,  which  may  be  ascer- 
tained by  a  correct  footing.7 

Under  the  new  procedure,  it  is  the  better  practice  to  allege,  in 
pleading,  the  fraud  or  mistake  on  which  defendant  relies  to  sur- 
charge or  falsify  plaintiff's  account.8  To  falsify  items  the  original 
books,  if  any,  should  be  produced,  or  the  accounting  party  sub- 
poenaed,9 or  given  notice  to  produce  them. 

13.  Consideration^ — Evidence  that  the  original  consideration 
of  an  item  was  positively  illegal,  is  competent ;  but  evidence  that 
the  original  agreement,  of  which  that  consideration  was  a  part, 
was  not  valid,  is  not  competent,  if  defendant  had  a  legal  consid- 
eration.10 

14.  Omissions  and  errors.'] — For  the  purpose  of  explaining  or 
negativing  an  omission  or  other  error,  it  is  competent  to  adduce 
the  original  books  from  which  the  account  was  drawn  off,11  and  to 
prove  why  the  party  failed  to  discover,  and  how  he  did  discover 
the  error ; tt  but  a  party  cannot  testify,  as  a  witness,  to  his  reason, 
not  communicated  to  the  other  party,  for  the  omission.13    A  mere 
omission  of  a  questioned  item  by  assent  of  both  parties,  is  not 
conclusive  against  it.14 

15.  Offsets.] — A  claim  of  offsets  as   distinguished  from  an 
omission,  should  be  alleged  in  pleading ;  and  even  if  anterior  to 


1  Wiggins  V.  Bnrkham,  10  "Wall.  129;  Perkins  v.  Hart,  11  Wheaton,  256. 

*  Towsley  v.  Dennison,  45  Barb.  490. 

*  Young  v.  Hill,  67  N.  Y.  162,  rev'g  6  Hun,  613.     It  is  never  an  absolute  estop- 
pel.   Hutchinson  v.  Bank,  48  Barb.  302. 

*  Young  v.  Hill  (above).     Contra,  as  to  all  but  professional  relations.     Phillips  v. 
Belden,  2  Edw.  Ch.  1,  17,  and  see  Ogden  v.  Astor,  4  Sandf.  336. 

5  Nichols  v.  Alsop,  6  Conn.  477 ;  Stewart  v.  Conner,  13  Ala.  94. 

6  Young  v.  Hill  (above). 

'  Walling  v.  Rosevelt,  1  Hair.  41. 

8  Compare  Bouslog  v.  Garrett,  39  Ind.  338. 

*  Upton  v.  Bedlou,  4  Daly,  216. 

10  This  seema  to  be  the  true  principle.     See  Melchoir  v.  McCarty,  81  Wis.  252,  s.  o. 
11  Am.  R.  605 ;  Youngs  v.  Hill,  67  N.  Y.  162,  rev'g  6.Hun,  613. 

11  Hampton  v.  Michael.  6  Gratt.  (Va.)  161. 
"  Glenn  v.  Salter,  50  Geo.  170. 

13  Champion  v.  Joslyn,  44  N.  Y.  653. 

14  Bright  v.  Coffman,  15  Ind.  371. 


464:  ACTIONS  ON  ACCOUNTS  STATED. 

the  account,  it  is  not  merely  on  that  ground  admissible  unless  al- 
leged.1 A  general  settlement  raises  a  legal,3  but  not  conclusive8 
presumption  that  earlier  demands  were  satisfied.  A  subsequent 
accounting,  including  fresh  items,  should  be  pleaded ;  otherwise 
of  a  mere  correction  of  the  first.4 

16.  Limitations] — If  no  new  consideration  upon  the  state- 
ment of  account  is  shown,  other  than  the  mutual  assent,  the  stat- 
ute of  limitations  applicable  to  the  original  indebtedness  may 
serve  to  bar  it,  if  pleaded,5  but  the  statement  itself  may  take  the 
case  out  of  the  statute,  if  it  be  such  as  to  satisfy  the  requirement 
of  an  acknowledgment  or  new  promise. 


1  Johnson  v.  Johnson,  4  Call  (Va.)  88. 

8  Smith  v.  Tucker,  2  E.  D.  Smith,  193. 

8  Busheev.  Allen,  31  Vt.  631. 

4  Rose.  N.  P.  691. 

B  See  paragraph  1,  note  1. 


CHAPTER  XXIV. 

ACTIONS     ON     AWARDS. 

1.  Fact  of  submission.  9.  Extrinsic  evidence  to  vary. 

2.  Its  scope.  10.  Effect  of  award. 

8.  Promise  to  abide  award.  11.  Competency  of  arbitrator  as  wit- 

4.  Umpire,  <fcc.  ness. 

5.  Oath.  12.  Defenses ;  pleading. 

6.  Enlargement  of  time.  13.  —  omissions  ;    excess   of  author- 

7.  Making  award.  ity. 

8.  Presumptions  in  favor  of  award.  14.  —  other  objections. 

1.  Fact  of  submission.'] — The  submission,  if  in  issue,  must  be 
proved  by  evidence  that  both  the  parties  were  bound.1  If  it  was 
in  writing,  the  rules  stated  in  chapter  XXI  and  chapter  XXVII 
will  apply  to  mode  of  proving  execution.  A  rule  of  court  entered 
on  the  submission  is  not  a  sufficient  authentication  of  the  submis- 
sion ;  but  a  submission  by  order  of  the  court,  in  a  case  where  the 
court  had  power  to  refer,  is  proved  by  production  of  the  order,2 
or  a  duly  certified  copy.  Even  where  the  statute  prescribes  the 
formalities  of  submissions,  the  presumption  is  in  favor  of  the 
validity  of  a  submission,  unless  the  contrary  appears.3  In  case  of 
an  oral  submission,  or  in  a  conflict  of  evidence  as»  to  the  execu- 
tion of  a  written  submission,  or  as  secondary  evidence  of  the 
making  of  a  written  submission,  it  is  competent  to  show  that 
defendant  had  partly  performed  the  award,  or  that  he  had,  on 
presentation  of  the  award,  promised  to  perform  it,  or  his  admis- 
sion of  having  submitted  the  matter  to  arbitration.4  Unless  the 
statute  requires  writing,  assent  to  a  submission,  even  by  a  cor- 
poration, may  be  inferred  from  circumstances.5 

The  authority  of  an  agent  or  attorney  to  submit  may  be  in- 
ferred from  evidence  of  the  principal's  acquiescence  in  similar 
submissions.6  It  is  conclusively  proved  by  evidence  that  the 
principal  appeared  and  proceeded  before  the  arbitrator,7  or  other- 
wise acquiesced  in  and  ratified  the  submission.8 


1  Rose.  N.  P.  471. 

3  Id ;  Morse  on  Arb.  600. 

3  Morse  on  Arb.  49.     But  see  paragraph  14. 

4  Morse  on  Arb.  602,  and  cases  cited. 

8  Isaacs  v.  Beth  Hamedash  Soc.,  1  Hilt.  469. 

6  Wood  v.  Auburn  &  Rochester  R.  R.  Co.  8  X.  Y.  (4  Seld.)  160. 

1  Diedrick  v.  Richley,  2  Hill,  271. 

8  Smith  v.  Sweeny,  85  N.  Y.  291. 

30  [465] 


466  ACTIONS  ON  AWARDS. 

An  oral  submission,  and  proceeding  npon  it,  do  not  estop  the 
party  from  setting  up  that  the  controversy  was  one  not  a  subject 
lor  arbitration,  or  not  a  subject  for  oral  submission.1 

2.  Its  scope.'] — A  submission  is  to  be  given  a  liberal,  but  not  a 
forced  construction,  in  favor  of  including  and  terminating  con- 
troversies.2   Documents  referred  to  in  it  are  competent  evidence 
to  show  what  was  in  controversy.3    If  ambiguous,  the  course  of 
evidence  and  discussion  before  the  arbitrators  in  presence  of 
both  parties,  is  competent  as  tending  to  show  that  matters  pre- 
sented on  both  sides  were  embraced,  and  matters  not  mentioned 
by  either  were  not  embraced  in  the  submission.4     A  written  sub- 
mission is  a  contract  within  the  rule  that  its  terms  cannot  be 
varied  by  an  oral  contemporaneous  or  previous  agreement ; 5  but  it 
may  be  modified  or  superseded  by  a  subsequent  oral  agreement.6 

3.  Promise  to  abide  award.~\ — When  a  submission  is  proved, 
an  agreement  to  abide  by  the  award  is  implied,  and  an  express 
promise  need  not  be  proved.7 

4.  Umpire,  <&c.~\ — Under  an  allegation  of  submission  to  and 
award  by  arbitrators,  submission  to  and  award  by  an  umpire,  is  a 
variance.8    The  appointment  of  an  umpire,  or  additional  arbi- 
trator, if  any,  such  were  appointed  and  made  the  award,  must  be 
proved.     It  cannot  be  proved  by  a  recital  in  his  award.9    Ap- 
pointment by  parol  is  good  unless  otherwise  provided  by  statute 
or  by  agreement.10 

5.  Oath.'] — The  arbitrator's  oath,  if  required  by  statute,11  and 
notice  of   hearing,12  are  presumed,  unless  the  contrary  appear. 
Evidence  of  waiver  excuses  the  omission  ;  and  the  fact  that  de- 
fendant proceeded  without  them  is  sufficient  evidence  of  waiver.13 

6.  Enlargement  of  time.~\ — An  enlargement  of  the  time  to 
award  implies  a  new  submission,  and  the  new  agreement  in  strict- 


I  French  v.  New,  2  Abb.  Ct.  App.  Dec.  209,  s.  c.  28  N.  Y.  147,  reVg  20  Barb. 
481. 

s  Munro  v.  Alaire,  2  Cai.  820  ;  Curtis  v.  Gokey,  68  N.  Y.  306. 
8  Winship  v.  Jewett,  1  Barb.  Ch.  173. 

4  Morse  on  Arb.  59-64  ;  but  compare  Feidler  v.  Cooper,  19  Wend.  285. 

5  For  this  rule  see  pp.  294,  364,  &c.,  of  this  vol. 

6  French  v.  New,  28  N.  Y.  147,  rev"g  20  Barb.  481. 

7  Smith  v.  Morse,  9  Wall.  76  ;  Valentine  v.  Valentine,  2  Barb.  Ch.  430 ;  Efner  v. 
Shaw,  2  Wend.  567. 

8  Lyon  v.  Blossom,  4  Duer,  318.     Unsound  in  so  far  as  it  holds  that  the  variance 
cannot  be  cured  by  amendment. 

9  Still  v.  Halford,  4  Campb.  19.     Compare  Morse  on  Arb.  446,  and  cases  cited. 

10  Elmendorf  v.  Harris,  6  Wend.  516,  s.  c.  23  Wend.  628.     Compare  Smith  v. 
Morse,  9  Wall.  76. 

II  See  Browning  v.  Wheeler,  24  Wend.  258. 

12  Mayor,  <fcc.  of  N.  Y.  v.  Butler,  1  Barb.  325. 

13  This  is  the  rule  in  New  York  and  some  other  States.     Contra,  in  Kentucky, 
Louisiana,  Missouri  and  New  Jersey.    Day  v.  Hammond,  57  N.  Y.  479. 


ACTIONS  ON  AWARDS.  467 

ness  should  be  alleged  ; 1  and  if  in  issue  must  be  proved,2  if  the 
validity  of  the  award  depends  upon  it.  If  the  time  was  fixed  by 
a  sealed  submission,  written  evidence,  though  unsealed,  is  compe- 
tent to  show  extension,3  and  so,  in  any  case,  is  oral  evidence  of 
waiver  by  proceeding  without  objection  after  the  time  had 
passed.4 

7.  Making  award.'] — The  execution  of  a  written  award  may 
be  proved  like  that  of  other  deeds  or  writings.5    If  the  submis- 
sion was  to  several,  the  concurrence  of  all  must  be  shown ; 6  un- 
less the  statute,7  or  the  terms  of  submission,8  sanction  a  decision 
by  a  less  number ;  in  which  case  oral  evidence  is  competent  to 
show  that  the  one  not  signing,  had  jointly  with  the  others,  heard 
the  case.9 

If  the  submission  required  the  award  to  be  ready  for  delivery 
at  a  time  named,  it  is  sufficient  to  prove  that  all  the  formalities, 
if  any,  were  completed  at  that  time,  so  that  it  was  ready  to  be 
delivered  to  defendant  (if  he  was  entitled  to  delivery),1"  on  re- 
quest,11 and  on  payment  of  fees  if  any.12  A  tardy  date  to  the  award 
is  not  alone  enough  to  rebut  the  presumption  of  timely  comple- 
tion.13 A  waiver  of  delivery  by  the  defendant  may  be  proved  by 
parol.14  Under  an  allegation  that  the  award  was  duly  made  or 
published  on,  &c.,  readiness  to  deliver  may  be  proved.15  Unless 
publication  to  the  party  is  required  by  the  submission,  plaintiff 
need  not  prove  that  defendant  had  notice  of  the  award.16 

Objections  to  the  award  which  do  not  show  it  to  be  positively 
illegal,  or  absolutely  void  under  the  statute,  may  be  cured  by 
evidence  of  its  ratification  by  the  parties.17 

8.  Presumptions  in  favor  of  awards.'] — All    presumptions 
and  intendments  are  in  favor  of  an  award,18  as  in  case  of  a  judg- 
ment,19 and  for  this  purpose  arbitrators  are  presumed  to  have  per- 


1  Myers  v.  Dixon,  2  Hall,  456. 

*  Rose.  N.  P.  471. 

8  Bloomer  v.  Sherman,  5  Paige,  575,  affi'g  2  Edw.  452. 

4  Morse  on  Arb.  83,  173. 

8  Rose.  N.  P.  472,  see  pp.  391,  Ac.,  of  this  vol. 

6  Green  v.  Miller,  6  Johns.  39,  and  cases  cited. 

7  2  N.  Y.  R.  S.  542,  §  7. 

8  Isaacs  v.  Beth  Hamedash  Soc.  1  Hilt.  469. 

•  Schultz  v.  Halsey,  8  Sandf.  405. 

10  Pratt  v.  Hackett,  6  Johns.  14. 

11  Burnap  v.  Losey,  1  Lans.  Ill ;  Morse  on  Arb.  279. 
19  Ott  v.  Schroepel,  3  Barb.  56. 

13  Owen  v.  Boerum,  23  B:irb.  187. 

14  Perkins  v.  Wing,  10  Johns.  143;    Warren  v.  Haight,  65  N.  T.  169;    Sellick  v. 
Adclams,  15  Johns.  197.     But  compare  Buck  v.  Wadsworth,  1  Hill,  321. 

15  Munro  v.  Alaire,  2  Cai.  320. 

14  Rose.  N.  P.  471;  Morse  on  Arb.  285.     Contra,  Id.  290. 

17  Morse  on  Arb.  580. 

18  Morewood  v.  Jewett,  2  Robt.  496;  Morse  on  Arb.  179. 

19  Lowenstein  v.  Mackintosh,  37  Barb.  251 ;  Morse  on  Arb.  446,  and  cases  cited. 


468  ACTIONS  ON  AWARDS. 

formed  all  their  duties.1  They  are  presumed  to  have  considered 
every  subject  brought  before  them  within  the  submission,2  and 
nothing  more,8  unless  the  terms  of  the  award  affirmatively  show 
that  they  did  not.4  The  award,  although  appearing  less  extensive 
in  its  terms  than  the  submission,  is  presumed  to  embrace  every 
question  before  the  arbitrators.5  If  the  submission  expressly  or 
by  just  implication  makes  it  a  condition  that  all  matters  sub- 
mitted be  determined,  the  same  presumption  applies,  if  there  are 
Ssneral  words  in  the  award  which  can  give  any  support  to  it. 
ut  this  presumption  is  not  conclusive.6 

9.  Extrinsic  evidence  to  vary] — An  award  apparently  uncer- 
tain, may,  like  a  deed,  be  aided  by  extrinsic  evidence  of  undis- 
puted facts,  or  documents  referred  to  in  it,  for  the  purpose  of 
showing  what  it  is  that  was  referred  to ; 7  but  the  terms  of  a  writ- 
ten award  cannot  be  varied  by  parol,8  nor  uncertainty  in  it  aided 
by  testimony  of  the  arbitrator,  or  evidence  of  his  declarations,  as 
to  what  was  intended  ;9  but  oral  evidence  of  an  award  is  not  nec- 
essarily excluded  by  the  fact  that  the  arbitrator  delivered  a  mem- 
orandum on  its  face  incomplete.10 

10.  Effect  of  award.] — The  award  unimpeached  is  conclusive 
as  a  judgment.11 

11.  Competency  of  Arbitrator  as  Witness.] — An  arbitrator 
may  be  required  to  testify  to  facts  upon  which  his  legal  power 
depended :  but  not  to  the  propriety  or  impropriety  of  his  exer- 
cise of  it.     To  illustrate  this  distinction : — he  is  a  competent  wit- 
ness in  a  legal  proceeding  in  which  it  is  sought  to  enforce  his 
award ; n  and  like  any  other  witness,  may  testify  to  the  extent  of 
an  oral  submission,13  or  to  what  passed  before  him  at  a  hearing  of 
the  parties,14  what  matters  were  presented  for  consideration,15  and 
what  were  or  were  not  considered,16  and  what  was  openly  decided 


!  Owen  v.  Boerum,  23  Barb.  187 ;    and  see  Butler  v.  Mayor,  <fec.  of  N".  Y.  1  Hill, 
489,  rev'd  in  7  Id.  329  ;  see  also  1  Barb.  325. 

*  Morewood  v.  Jewett,  2  Robt.  496. 

3  Solomons  v.  McKinstry,   13  Johns.  27,  affi'g  2  Id.  67;  Pierce  v.  Morrison,  6 
Hun,  236. 

4  Wright  v.  "Wright,  5  Cow.  197 ;  Backus  v.  "Fobes,  20  N.  Y.  204. 
8  Ott  v.  Schroeppel,  6  N.  Y.  482,  rev'g  7  Barb.  431. 

•  Morse  on  Arb.  342-350,  363. 

7  Jackson  v.  Ambler,  14  Johns.  96  ;  Morse  on  Arb.  411-413,  445. 

8  Cobb  v.  Dostch,  62  Geo.  548. 

9  Morse  on  Arb.  435,  563. 

10  See  Becker  v.  Boon,  61  N.  Y.  324. 

11  Brazell  v.  Isham,  12  N.  Y.  9 ;  Lowenstein  v.  Mclntosh,  37  Barb.  25]  ;  and  see 
Coleman  v.  Wade,  6  N.  Y.  44.    But  not  more  so.     Morse  v.  Osborn,  64  Barb.  546. 

]i  Duke  of  Buccleuch  v.  Metropolitan  Board  of  Works,  L.  H.  5  Ho.  of  L.  418,  s.  c. 
2  Moak's  Eng.  448 ;  Mayor,  <fec.  of  N.  Y.  v.  Butler,  1  Barb.  326. 
ls  Birbeck  v.  Burrows,  2  Hall,  61. 

14  Duke  of  Buccleuch  v.  Metropolitan  Board  of  Works  (above) ;  Cole  v.  Blunt, 
2Bosw.  116. 

15  Id.    Id. 

16  Butler  v.  Mayor,  Ac.  of  N.  Y.  (above). 


ACTIONS  ON  AWARDS.  469 

in  the  presence  of  the  parties  j1  as  well  as  other  incidents  of  the 
proceedings ;  such,  for  instance,  as  delivery  of  the  award.  He  is 
thus  competent,  even  when  the  object  of  the  testimony  is  to 
avoid  the  award  in  which  he  joined,^  unless  by  showing  mistake, 
bad  faith,  misconduct  or  other  irregularity,  in  making  it,8  for 
which  purpose  he  is  not  competent,  unless  he  declared  his  dissent 
at  the  time  of  the  irregularity.4  Nor  can  he  be  asked  any  ques- 
tions as  to  what  passed  in  his  own  mind  when  exercising  his  dis- 
cretionary or  judicial  power  on  the  matters  submitted  to  him.5 

One  who  signed  canrfot  testify  that  in  fact  he  did  not  concur;6 
nor  is  it  relevant  to  prove  that  one  who  signed  afterwards  dis- 
sented ;7  unless  there  be  evidence  of  fraud  or  misconduct,  or  mis- 
representation practiced  upon  him  and  inducing  signature.8 

12.  Defenses;  Pleading^ — A  denial  that  an  award  was  made 
of  and  concerning  the  premises,  &c.,  does  not  put  in  issue  the 
making,  but  only  the  fitness  of  the  award  to  the  submission.9    A 
denial  of  award  admits  evidence  that  there  was  none  in  fact ;  but 
if  there  was  one  in  fact,  there  should  be  an  allegation  of  the  ir- 
regularity,10 departure  from  submission,11  subsequent  vacatur,®  or 
other  ground  of  invalidity  relied  on,13  to  admit  evidence  of  the 
objection.     Under  the  new  procedure  proper  allegations  may 
admit  as  a  defense  whatever  is  a  ground  for  application  to  the 
equitable  power  of  the  court  to  vacate  the  award.1* 

13.  Omissions;  Excess  of  authority.} — If  defendant  relies  on 
the  objection  that  the  arbitrators  omitted  to  pass  upon  a  matter 
within  the  submission  and  brought  before  them  by  the  parties,  or 
that  they  considered  a  matter  not  submitted,  the  burden  is  on 
him  to  show  the  fact.     It  may  be  shown  by  parol  unless  it  con- 
tradicts the  terms  of  a  written  award,  or  unless  the  omission  was 
caused  by  defendant  himself.15    The  fact  that  matters  not  con- 
sidered were  brought  before  the  arbitrator,  may  be  shown  by 
parol,  or  by  recitals  in  the  award.16    The  fact  that  they  were  not 


I  Cole  v.  Blnnt  (above),  and  Boughton  v.  Seamana,  9  Hun,  392,  394,  where  the 
arbitrators  testified  to  their  oral  award. 

s  Briggs  v.  Smith,  20  Barb.  409. 

*  Newland  v.  Douglass,  2  Johns.  62. 

4  Jackson  v.  Gager,  5  Cow.  883. 

8  Duke  of  Buccleuch  v.  Metropolitan  Board  of  "Works  (above). 

'  Campbell  v.  Western,  3  Paige,  124. 

'  Winship  v.  Jewett,  I  Barb.  Ch.  173. 

8  Wellington  v.  Warren,  10  Mete.  431. 

9  Id. 

"  Knowlton  v.  Mickles,  29  Barb.  465.  Failure  to  deliver  within  the  time  limited 
was  not,  at  common  law,  available  under  a  denial  of  award.  Perkins  v.  Wing,  10 
Johns.  143 ;  Morse  on  Arb.  284.  Contra,  Dresser  v.  Stansfield,  14  Mees.  «t  W.  822. 

II  Bean  v.  Farnnm,  6  Pick.  269.     Contra,  Rose.  N.  P.  473. 
11  Rose.  N.  P.  472. 

13  Morewood  v.  Jewett,  2  Robt.  496  ;  Morse  on  Arb.  594. 

14  Day  v.  Hammond,  57  N.  Y.  484,  489. 
u  Morss  v.  Osborn,  64  Barb.  546. 

"  Morse  on  Arb.  359,  361. 


470  ACTIONS  ON  AWARDS. 


i 


considered  or  determined  cannot  be  shown  by  extrinsic  evidence 
if  the  award  is  in  terms  adequate  to  conclude  the  parties  as  a 
judgment  would.1    Excess  of  authority  must  be  clearly  shown, 
t  is  not  enough  that  it  may  have  occurred.3 

14:.  Other  objections.] — An  award  may  be  proved  void,  with- 
out showing  corruption  or  bad  faith,  by  evidence,  under  proper 
allegation,  that  the  arbitrator's  oath,  required  by  statute,  was  not 
taken ; 8  that  the  arbitrators  took  evidence  or  heard  argument  at  a 
meeting  of  which  defendant  had  no  nptice ; 4  or  made  award  be- 
fore defendant  had  closed  his  proofs ; 5  that  they  resigned,  even 
by  parol,  before  award,  and  their  resignation  was  accepted ; 6  that 
before  award  the  submission  was  revoked  by  operation  of  law,  or 
by  act  of  a  party,  notified  to  the  other,  in  a  form  equally  solemn 
as  the  submission ; 7  that  defendant  being  entitled  to  the  award 
on  a  day  named,  then  demanded  it  and  was  refused  ;8  or  that  they 
had  made  an  award9  previous  to  the  award  sued  on. 

If  the  submission,  and  the  conformity  of  the  award  with  it, 
are  not  impeached,  nothing  extrinsic  to  the  award  can  be  proved 
against  it  except  corruption  or  misconduct  in  the  arbitrators,10  and 
(under  the  new  procedure)  such  mistake  of  fact, — as,  for  instance, 
a  miscalculation  of  figures,  or  the  like, — as  is  a  proper  ground  for 
equitable  relief.  Mistake  of  law  is  available  only  when  it  appears 
expressly  or  by  inference,  from  the  face  of  the  award,11  or  in  some 
connected  paper  delivered  with  it.12  An  allegation  of  corruption 
or  partiality  must  be  clearly  made  out ; 13  but  evidence  that  the 
award  was  grossly  excessive  will  entitle  the  defendant  to  go  to 
the  jury  on  the  question.14 


1  Lowenstein  v.  Mackintosh,  37  Barb.  251. 

2  Solomons  v.  McKinstry,  13  Johns,  27,  affi'g  2  Id.  57 ;  Bacon  v.  Wilber,  1  Cow. 
117 ;  Morse  on  Arb.  443,  445. 

3  Day  v.  Hammond,  67  N.  T.  483.     Unless  the  oath  was  waived,  Id, 

4  Elmendorf  v.  Harris,  23  Wend.  628,  rev'g  5  Id.  516 ;  Knowlton  v.  Michles,  29 
Barb.  465.     Compare  Mosely  v.  Simpson,  L.  R.  16  Eq.  226,  8.  c.  6  Moak's  Eng.  728; 
Day  v.  Hammond,  57  N.  Y.  487. 

5  Garvey  v.  Carey,  4  Abb.  Pr.  N.  S.  169.  a  c.  7  Robt.  286.     But  evidence  that 
there  was  a  heated  discussion  between  the  arbitrators,  ending  in  a  refusal  of  the  ma- 
jority to  discuss  the  question  further,  does  not  impeach  the  award.    Roberta  v.  Old 
Colony  R.  R.  Co.  5  Reporter,  175. 

6  Relyea  v.  Ramsay,  2  Wend.  602. 
'  Morse  on  Arb.  230-232. 

8  Morse  on  Arb.  283. 

9  Doke  v.  Jame.8,  4  N.  Y.  568. 

10  Herrick  v.  Blair,  1  Johns.  Ch.  101,  and  cases  cited.  In  the  arbitrators  person- 
ally,  as  distinguished  from  injustice  in  their  award.  Perkins  v.  Giles,  50  N.  Y.  228, 
affi'g  53  Barb.  842. 

"  Bissell  v.  Morgan,  56  Barb.  369 ;  Campbell  v.  Western,  3  Paige,  124;  Fudickar 
V.  Guardian  Mut.  Ins.  Co.  62  N.  Y.  392,  401,  affi'g  37  Super  Ct.  (J.  A  S.)  358. 

14  Morris  Run  Coal  Co.  v.  Salt  Co.  of  Onondaga,  58  N.  Y.  667. 

13  Wood  v.  Auburn,  <fec.  R.  R.  Co.  8  N.  Y.  168 ;  Perkins  v.  Giles,  50  N.  Y.  232. 

14  Smith  v.  Cooley,  5  Daly,  401. 


CHAPTER  XXV. 

ACTIONS   ON  GUARANTIES. 

1.  Oral  contract.  7.  Transactions  under  the  guaranty. 

2.  Promise  to  answer  for  debt,  <kc.  of  8   Non-payment  or  non-performance. 

another.  •         9.  Admissions  and  declarations  of  the 
8.  Execution  of  the  contracts.  principal  debtor. 

4.  Consideration.  10.  Judgments. 

6.  Rules  of  interpretation.  11.  Defenses. 

6.  Oral  evidence  to  vary. 

1.  Oral  contract.'] — The  fact  that  a  promise  was  in  form  to 
pay  the  debt,  &c.,  of  another,  does  not  conclusively  require  evi- 
dence such  as  satisfies  the  statute  of  frauds.1    Evidence  of  the 
surrounding  circumstances  is  competent  to  enable  the  jury  to 
determine  whether  ambiguous  words  were  a  guaranty  of  payment 
or  performance  by  another,  or  were  an'  original  undertaking.2 
For  this  purpose  plaintiff's  evidence  must  be  clear  and  satisfac- 
tory.3 

2.  Promise  to  answer  for  debt,  c&c.,  of  another."] — If  the  con- 
tract is  within  the  statute  of  frauds,4  plaintiff  should  be  prepared 
with  written  evidence,  if  the  making  of  the  contract  is  in  issue.3 
If  the  making  is  admitted,  or  if  the  terms  only  are  in  issue,  the 
statute  of  frauds  is  not  available  unless  the  want  of  a  memoran- 
dum is  pleaded.6    The  necessary  writing  is  admissible  under  a 
general  allegation  of  the  promise,  without  mentioning  a  writing.7 
The  form  01  the  instrument  is  not  material ;  but  if  made  out  by 
several  papers,  they  must  refer  to  each  other  in  such  a  manner  as 
to  show  that  they  are  parts  of  the  same  contract,  requiring  noth- 
ing to  be  supplied  for  this  purpose,  by  verbal  evidence,  except  the 
identity  of  the  documents.8    The  statute  precludes  resort  to  oral 
evidence  to  supply  any  substantial  element  lacking  in  the  writing 
and  necessary  to  constitute  a  contract ; 9  except  the  consideration,1" 


1  Emerson  v.  Slater,  22  How.  U.  S.  28. 
*  Brandt  on  Sureties  <fe  G.  82,  §§  63,  64. 
1  Haverley  T.  Mercur,  78  Penn.  St.  257. 
4  2  N.  Y.  R.  S.  135,  §  2,  sub  2. 

6  Lewin  v..  Stewart,  10  How  Pr.  509. 
«Id. 

7  Brandt  on  Snr,  <fe  G.  102,  §  77;  De  Colyar  (by  Morgan),  178,,  209. 

8  Peirce  v.  Corf,  L.  R.  9  Q.  B.  210 ;  Broom's  Phil,  of  L.  §  90.;  p.  292  of  this  vol. 
Compare  Lee  v.  Dick,  10  Pet.  482. 

9  Holmes  v.  Mitchell,  7  C.  B.  N.  S.  (Scott),  361 ;  L.  J.  28  C.  P.  301 ;  Williams  v. 
Lake,  2  El.  <fe  El.  849 ;  L.  J.  29  Q.  B.  1. 

10  2  N.  Y.  R.  S.  135,  §  2,  as  am'd  by  L.  1863,  p.  802,  c.  464,  dispensing  with  expres- 
sion of  consideration.  Speyer  v.  Lambert,  1  Sweeny,  335,.  s.  c.  6  Abb.  Pr.  N.  S.  809, 
87  How.  Pr.  315.  (Contra,  Castle  v.  Beardsley,  10  Hun,  343.)  So  at  common  law, 
and  under  some  earlier  statutes,  Leonard  v.  Vredenburgh,  8  Johns.  29 ;  Packard  v. 

[471] 


472  ACTIONS  ON  GUARANTIES. 

the  delivery  and  acceptance,  and  such  matters  as  may  be  neces- 
sary under  any  contract  to  show  a  quantum  meruit  arising  upon 
facts  specified  in  the  writing :  these  may  be  shown  by  parol.  An 
instrument  inadequate  under  the  statute  cannot  be  helped  by 
parol  evidence  of  mistake  on  the  part  of  the  writer  only.1 

3.  Execution  of  the  contracts.} — Production  and  proof  of  exe- 
cution of  the  guaranty  indorsed  on8  or  correctly  describing8  the 
evidence  of  debt  guaranteed,  with  production  of  the  latter,  is  suf- 
ficient without  other  proof  of  execution  of  the  latter.     The  au- 
thority of  an  agent,  subscribing,  need  not  be  in  writing ; 4  and 
slight  evidence  is  prima  facie  sufficient.5    A  guaranty  written 
over  an  indorsement  of  a  bill  or  note  is  presumed  to  nave  been 
written  at  the  time  of  making  the  indorsement,6  even  though  in 
a  different  hand.7    A  guaranty  is  conclusive  against  the  guaran- 
tors as  to  the  power  of  the  principal  debtors  to  make  their  con- 
tract,8 and  as  to  its  validity  in  respect  to  formalities  required  by 
foreign  law.9 

Production  of  an  instrument  transferable  by  delivery,  with 
the  guaranty  indorsed  or  annexed,  is  prima  facie,10  but  not  con- 
clusive,11 evidence  of  plaintiff's  title  to  both  contracts.  A  parol 
assignment  of  guaranty  may  be  proved.12 

4.  Consideration.'] — If  it  appear  that  the  guaranty  was  exe- 
cuted at  or  before  delivery  of  the  principal  contract,  the  consid- 
eration of  the  latter  is  enough.13    If  execution  of  the  guaranty 
after  delivery  is  shown,  the  burden  is  on  plaintiff  to  show  a  new 
consideration.14    The  date  is  not  conclusive.15. 

A  seal,16  or  words  in  the  guaranty  importing  a  consideration, — 
such  as  "  value  received,"  n — are  sufficient  prima  facie  evidence  of 


Richardson,  17  Mass.  122,  144 ;  Reed  v.  Evans.  17  Ohio,  128,  133.  Contra,  Deutsch 
v.  Bond,  46  Md.  ]  64 ;  Palmor  v.  Haggard,  78  111.  607.  Under  statutes  requiring  the 
consideration  to  be  stated,  the  words  "  for  value  received,"  are  sufficient.  Mosher  v. 
Hotchkiss,  3  Abb.  Ct.  App.  Dec.  326. 

1  Grant  v.  Naylor,  4  Cranch,  224. 

s  Cooper  v.  Dedrick,  22  Barb.  516.   ' 

8  Forman  v.  Stebbins,  4  Hill,  181. 

*  De  Colyar  (by  Morgan),  189. 

B  Pow.  Ev.  261 ;  2  GreenL  Ev.  13  ed.  52  ;  Watkins  v.  Vince,  2  Stark.  868. 

6  Oilman  v.  Lewis,  15  Me.  452. 

7  Small  v.  Sloan,  1  Bosw.  852. 

8  Remscn  v.  Graves,  41  N.  Y.  471. 

9  Smeltzer  v.  White,  92  U.  S.  (2  Otto),  892 ;  and  it  seems,  also,  of  validity  gener- 
ally,  unless  positively  illegal.     Id. 

10  Smith  v.  Schanck,  18  Barb.  344  ;  Cooper  v.  Dedrick,  22  Id.  516. 

11  Gallagher  v.  White,  31  Id.  92. 
11  Gould  v.  Ellery,  39  Id,  163. 


McClaughry, 

14  Klein  v.  Currier,  14  111.  237. 
"  Draper  v.  Snow,  20  N.  Y.  331,  affi'g  6  Duer,  662. 
18  2  N.  Y.  R.  S.  406,  §  77. 
J7  Quimby  v.  Merrill,  47  Me.  470. 


ACTIONS  ON  GUARANTIES.  473 

consideration.  If  the  statement  of  consideration  is  general,1  nom- 
inal,8 or  ambiguous,8  or  consideration  is  only  presumed  from  a 
seal,4  the  particular  consideration  may  be  shown  by  oral  evidence 
not  contradictory  of  the  writing.5  Words  in  the  past  tense  are 
not  conclusive  evidence  that  the  consideration  was  past.6  If  the 
particular  consideration  is  specified  in  a  written  guaranty,  it  can- 
not be  varied  by  parol,7  but  may  b.e  contradicted  by  defendant. 
Inadequacy  of  consideration  is  irrelevant ; 8  and  so  is  evidence  that 
even  a  nominal  consideration  remains  unpaid.9 

5.  Rules  of 'interpretation.'] — In  order  to  apply  the  rule  that 
the  words  of  a  guaranty  are  to  be  construed  as  strongly  against 
the  guarantor  as  the  sense  will  admit,10  it  is  proper  to  admit  evi- 
dence of  surrounding  circumstances  at  the  time  of  the  transac- 
tion, to  discover  the  subject-matter  the  parties  had  in  view,  and 
thus  ascertain  the  scope  and  object  of  the  guaranty.11 

6.  Oral  evidence  to  vary.] — A  written  guaranty,  like   any 
other  contract,  excludes  oral  evidence  of  its  terms,"  upon  prin- 
ciples already  stated.13    But  extrinsic  evidence  of  all  the  sur- 
rounding circumstances,  and  the  pre-existing  relation  between  the 
parties,  is  admissible  to  enable  us  to  Bee  what  they  mean  by  the 
language  used ; 14  to  show,  for  instance,  whether  equivocal  lan- 
guage contemplated  past  or  future  transactions ; 15  and  a  limit  of 
amount,16  or  time,17  or  person ; 18  or  a  continuing  guaranty.19 


1  Sterns  v.  Marks,  35  Barb.  565  ;  Quimby  v.  Morrill,  47  Me.  470. 

8  Redfield  v.  Haight,  27  Conn.  31,  40. 

8  Goldshede  v.  Swan,  1  Exch.  154;  Haigh  v.  Brooks,  10  Ad.  &  E.  309,  323,  334; 
Walrath  v.  Thompson,  4  Hill,  200.  Compare  Parker  v.  Bradley,  2  Hill,  584. 

4  Morgan  v.  Smith,  7  Hun,  244- 

6  De  Coly.  (by  Morgan),  177.  Compare,  for  a  freer  rule,  the  chapters  on  actions 
affecting  REAL  PROPERTY  and  CREDITORS  ACTIONS. 

6  For  instances,  see  Agawam  Bank  v.  Strever,  18  N.  Y.  602;  Williams  v.  Mar- 
Bhall,  42  Barb.  524,  and  cases  above  cited.  Contra,  Parker  v.  Bradley,  2  Hill,  584. 

'  De  Colyar  (by  Morgan),  179.     Contra,  Morgan  v.  Smith,  7  Hun,  244. 

8  De  Colyar  (by  Morgan),  34. 

9  Childs  v.  Barnum,  11  Barb.  14,  affi'g  1  Sandf.  58. 

10  Drummond  v.  Prestman,  12  Wheat.  515;  Wood  v.  Prestner,  L.  R.  2  Exch.  68. 

11  sneffield  v.  Meadows,  L.  R.  4  C.  P.  595 ;   Smeltzer  v.  White,  92  U.  S.  (2  Otto), 
892.     As  to  the  different  rules  of  interpretation  dependent  on  such  evidence,  com- 
pare Russell  v.  Clark,  7  Cranch,  69 ;    Ludlow  v.  Siniond,  2  Cai.  Gas.  1 ;    Gates  v. 
McKee,  18  N.  Y.  232;   Rochester  City  Bk.  v.  Elwood,  21  Id.  88;    Benjamin  v.  Hil- 
lard,  23  How.  (U.  S.)  149 ;   Mauran  v.  Bullus,  16  Pet.  628  ;   Belloni  v.  Freeborn,  63 
N.  Y.  888,  and  cases  cited. 

13  Laurie  v.  Scholfield,  L.  R.  4  C.  P.  622 ;  Ellmaker  v.  Franklin,  5  Barr,  183,  190. 
18  Page  294  of  this  vol. 

14  Spencer  v.  Babcock,  22  Barb.  326.     The  instrument  may  be  reformed  where  it 
\B  the  subject  of  fraud  or  mutual  mistake.     Prior  v.  Williams,  3  Abb.  Ct.  App.  Dec. 
624. 

15  Bainbridge  v.  Wade.  16  Q.  B.  89,  98,  s.  o.  20  L.  J.  N.  S.  7  ;  Broom  v.  Batchelor, 
1  H.  <fc  N.  255  ;  Hoad  v.  Grace,  7  Id.  494,  s.  c.  L.  J.  31  Exch.  98. 

16  Laurie  v.  Scholfield  (above). 
"Id. 

18  Lowry  v.  Adams,  22  Vt.  160;  and  see  Drummond  v.  Prestman,  12  Wheat.  615; 
Lcathy  v.  Speyer,  L.  R.  6  C.  P.  695. 

"  Agawam  Bank  v.  Strever,  18  N.  Y.  502;  Wood  v.  Priestner,  4  H.  <fc  C.  681; 


474:  ACTIONS  ON  GUARANTIES. 

7.  Transactions  under  the  guaranty^ — Evidence  of   usage 
is  not  competent  to  being  witnin  the  effect  of   the  guaranty 
a  transaction  not  within   its  terms,1  but  a  transaction  within 
its  terms  having  been  shown,  evidence  of  usage  is  competent  to 
explain  subsequent  dealings  with  the  debtor  which  might,  unex- 
plained, exonerate  the  defendant.8    The  original  bill  of  sale  given 
by  plaintiff  on  delivery  of  the  goods,  &c.,  is  conclusive  against 
him  as  to  whether  the  terms  of  credit  conformed  to  the  guaranty.8 
Otherwise  of  a  bill  subsequently  delivered,  which  is  a  mere  ad- 
mission.4 

The  fact  that  the  plaintiff  acted  on  the  credit  and  faith  of  the 
guaranty,  may  be  proved  by  parol,5  by  his  testimony  of  or  that  of 
a  witness  cognizant  of  the  fact.6 

8.  Non-payment  or  non-performance.'] — Plaintiff  should  usu- 
ally be  prepared  with  some  evidence  of  a  breach  by  the  principal 
debtor.1' 

If  request  or  other  condition  is  expressed  or  fairly  implied 
in  the  contract  of  guaranty,  it  must  be  alleged  and  proved.*  A 
condition  only  in  the  contract  of  the  principal  debtor,  does  not 
require  proof  against  the  guarantor  unless  it  would  as  against 
the  former,9  except  where  the  fact  is  peculiarly  in  plaintiff's 
knowledge.  Under  a  guaranty  of  collection,  the  due  exhaustion 
of  remedy  by  judgment  and  execution  unsatisfied,  fa  priana  facie 
enough.10  "Where  absolute  insolvency  excuses,  an  adjudication  in 
bankruptcy  is  conclusive.11 

9.  Admissions  and  declarations  of  principal  debtor."] — The 
admissions  and  declarations  of  the  principal  debtor  are  competent 
against  the  guarantor,  when  made*  in  the  transaction  of  the  busi- 
ness for  which  the  guarantor  is  bound,  so  as  to  be  part  of  the  res 


Heffield  v.  Meadows,  L.  R.  4  C.  P.  595.  A  guaranty  is  presumed  to  be  not  a  con- 
tinuing  guaranty,  in  the  absence  of  anything  in  it  or  in  extrinsic  evidence  to  indicate 
that  it  was  such.  Fellows  v.  Prentiss,  3  Den.  512;  Whitney  v.  Groot,  24  Wend.  82. 
Contra,  Rose.  N.  P.  457. 

1  See  Carkin  v.  Sarony,  14  Gray,  528.  / 

8  See  Fox  v.  Parker,  44  Barb.  541. 

3  Per  Lord  ELLENBOROUGH,  Bacon  v.  Chesney,  1  Stark.  192;   and  see  Leeda  v. 
Dunn,  10  N.  Y.  469. 

4  Bacon  v.  Chesney  (above). 

6  Douglas  v.  Reynolds,  1  Pet.  113,  118. 

6  Pages  240,  265,  of  this  vol. 

7  See  Schlesinger  v.  Hexter,  34  Super.  Ct.  (J.  &  S.)  499. 

8  Nelson  v.  Bostwick,  5  Hill,  37,  and  cases  cited ;  Douglass  v.  Rathbone,  Id.  143. 
For  conflicting  opinions  on  the  necessity  of  demand,  notice,  Ac.,  see  Central  Savings 
Bank  v.  Shine,  48  Mo.  *56,  s.  o.  8  Am.  R.  112 ;  Safford  v.  Stevens,  2  Wend.  158, 164  ; 
McMillan  v.  Bull's  Head  Bank,  32  Ind.  11,  s.  c.  1  Am.  R.  323 ;  Clay  v.  Edgerton,  19 
Ohio  St.  549. 

8  Douglass  v.  Howland,  24  Wend.  35,  citing  conflicting  cases. 

10  Backus  v.  Shepherd,  11  Wend.  629.    Aa  to  what  are  such  guaranties,  see  Alb. 
L.  J.  1878,  p.  360,  and  cases  cited. 

11  First  Nat.  Bank  of  Charlotte  v.  Nat.  Exchange  Bank  of  Baltimore,  92  U.  S.  (2 
Otto),  122. 


ACTIONS  ON  GUARANTIES.  475 

gestce,  or  when  made  in  a  transaction  subsequent  to  the  guaranty, 
and  which  the  guaranty  contemplated  and  authorized ;  *  out  other 
admissions  and  declarations,  such  as  subsequent  acknowledgment 
of  having  had  goods  or  the  like,  are  not  competent2  unless 
brought  home  to  the  guarantor.8 

10.  Judgments.] — A  judgment  against  the  principal  debtor  is 
in  all  cases  evidence  against  the  guarantor,  of  the  fact  of  its  re- 
covery,4 but  not  of  the  indebtedness,  &c.,  unless  recovered  on 
notice  to  him,8  or  unless  his  guaranty  binds  him  by  the  result  of 
the  proceeding.6 

11.  Defenses] — The  fact  that  there  was  no  writing  is  avail- 
able under  the  general  issue.7    The  fact  that  his  principal  was 
indebted  to  the  guarantor,  or  forbade  him  to  fulfill  nis  guaranty, 
is  no  defense.8    Fraud  of  the  principal  is  not  available  against  a 
creditor  who  innocently  parted  with  value  on  the  faith  of  the 
guaranty.9    Evidence  that  the  principal  delivered  money  or  prop- 
erty to  plaintiff  is  not  sufficient  to  prove  payment,  without  evi- 
dence which  may  sustain  an  inference  that  it  was  applied  to  the 
debt.10 


1  Hatch  v.  Elkens.  65  N.  Y.  489 ;  and  see  Brandt  on  Sur.  &  G.  656,  <fcc. 

8  Evans  v.  Beattie,  5  Esp.  26. 

»  Griffith  v.  Turner,  4  Gill  (Md.)  111. 

4  Clark  v.  Carrington,  7  Cranch,  308. 

6  Compare  Drummond  v.  Prestman,  12  "Wheat.  615. 

6  Douglass  v.  Howland,  24  Wend.  35,  54,  <fcc. ;  Rapelye  v.  Prince,  4  Hill,  119. 

7  Brandt  on  Sur.  «fe  G.  103,  §  77;  Rose.  N.  P.  459. 

8  East  River  Bank  v.  Rogers,  7  Bosw.  498. 

9  McWilliams  v.  Mason,  31  N.  Y.  294. 
10  Tyler  v.  Stevens,  11  Barb.  465. 


CHAPTER  XXVI. 

ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

I.  GENERAL  RULES.  I.  GENERAL  RULES — continued. 

1.  Action  on  preliminary  agreement.  25.  Defenses. 

2.  Execution  of  policy.  26.  False  representations. 
8.  Delivery.  27.  False  warranty. 

4.  The  application.  28.  Concealment. 

6.  Authority  and  scope  of  agency.  29.  Materiality  to  the  risk. 

6.  Payment  of  premium.  80.  Over-valuation. 

7.  Waiver  of  non-payment ;  excuse  81.  Charge  of  crime. 

for  failure. 

8.  Renewal.  II.  RULES  PECULIARLY  APPLICABLE  TO  MA- 

9.  Ordinary  course  of  proof.  Prima  RINE  INSURANCE. 

facie  case.  82.  Interest. 

10.  Warranties.  33.  Warranties. 

11.  General  rule  as  to  oral  evidence.  34.  Seaworthiness. 

12.  Circular  or  prospectus.  85.  Rating. 

13.  Mistake.  36.  Shipment. 

14.  Usage.  87.  The  voyage. 

15.  Ownership  or  insurable  interest.  88.  Weather. 

16.  Mode  of  proving  ownership.  89.  Loss. 

17.  The  peril.  40.  Barratry. 

18.  Loss. 

19.  Value;  damage.  HI.  RULES  PECULIARLY  APPLICABLE  TO  LIFE 

20.  Preliminary  proofs.  AND  ACCIDENT  INSURANCE. 

21.  Not  ice  to  company.  41.  Disease;  death. 

22.  Waiver  of  conditions,  or  forfeit-  42.  Suicide  and  insanity. 

ure.  43.  Declarations  and  admissions  of 

23.  Adjustment.  the  subject. 

24.  Declarations  and  admissions  of  44.  Accident  insurance, 
officers  and  agents. 

I.  GENERAL  RULES. 

1.  Action  on  preliminary  agreement.'] — An  oral  contract  of 
insurance  is  valid,*  unless  the  charter  forbids  ;  but  it  must  not  be 
indefinite  as  to  time,  and  rate  of  premium,  &c.2  The  evidence 
must  justify  the  inference  of  a  completed  contract;  and,  if  the 
language  contemplated  a  policy,  that  none  was  made.8  A  general 
agent  has  implied  authority  to  make  a  preliminary  agreement,4 
and  his  usual  course  of  business  to  make  such  contracts  for  de- 
fendants is  evidence  of  his  authority.5 

1  Relief  Fire  Insurance  Co.  v.  Shaw,  94  U.  S.  (4  Otto),  574 ;  First  Baptist  Ch.  v. 
Brooklyn  Fire  Ins.  Co.  19  N.  Y.  305.  For  the  English  usage  compare  Fisher  v. 
Liverpool  Marine  Ins.  Co.  L.  R.  8  Q.  B.  328,  8.  o.  7  Moak's  Eng.  82,  affi'd  in  L.  R.  9 
Q.  B.  418,  s.  c.  9  Moak's  Eng.  352. 

As  to  mode  of  proving  terms  of  agreement,  see  Fabri  v.  Phoenix  Ins.  Co.  55  N.  Y. 
129.  Mode  of  proof  of  contract  by  correspondence,  see  p.  289  of  this  vol.  and 
May  on  Ins.  45. 

*  Strohn  v.  Hartford  Fire  Ins.  Co.  87  Wis.  625,  s.  c.  19  Am.  R.  777 ;  s.  P.  28  N.Y.  163. 
3  Insurance  Co.  v.  Lyman,  15  Wall.  664.     And  see  Audubon  v.  Excelsior  Ins. 

Co.  27  N.  Y.  216. 

*  Ellis  v.  Albany  City  Fire  Ins.  Co.  50  N.  Y.  402  ;   Angell  v.  Hartford  Fire  Ins, 
Co.  59  Id.  171. 

6  Putnam  v.  Home  Ins.  Co.  123  Mass. '824. 

[476] 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  477 

A  witness  cannot  be  asked  whether  the  facts  stated  were  in  his 
opinion  a  completed  contract.1  To  allow  him  to  explain  ordinary 
terms  used  in  the  negotiation,  it  should  appear  that  they  are 
terms  of  art,  or  employed  in  the  particular  business,  and  that  the 
witness  has  qualifications  for  interpreting  not  equally  possessed 
by  the  judge  and  jurv.2 

Where  the  preliminary  agreement  rests  in  writing, — as,  for  in- 
stance, a  written,  application,  a  note  for  premium  and  a  receipt 
therefor, — parol  evidence  is  not  admissible  to  show  that  it  was  to 
take  effect  contrary  to  the  terms  so  expressed.3  In  an  action  on 
an  agreement  to  issue  a  policy  in  a  form  used  by  a  specified  com- 
pany, a  blank  form  of  that  company  is  admissible.4  The  amount 
agreed  to  be  insured  may  be  recovered.5 

2.  Execution  of  policy.] — The  policy,  unless  admitted,8  should 
be  produced  or  accounted  for,  and  the  signatures  (including 
countersigning)  proved.7  Physical  delivery  is  prima  facie 
evidence  of  a  binding  contract.8  Where  the  facts  connected 
with  the  delivery  of  the  policy  show  that  the  insured  was  called 
on  to  manifest  by  some  act  that  he  accepted  the  policy,  it  is  not 
binding  without  proof  of  some  such  act;9  mere  silence  will 
not  alone  suffice,  but  it  will  in  connection  with  evidence  that  he 
was  in  substance  told  he  would  be  considered  as  accepting  unless 
he  refused.10  Payment,  with  delivery,  is  nerely  conclusive  evi- 
dence of  consummation  of  the  contract.  Payment,  without 
delivery,  is  ambiguous.  If  made  at  time  of  application  it  is 
of  little  weight,  except  as  throwing  light  on  other  acts.11  Lack 
of  delivery  is  not  conclusive.12  Even  the  fact  that  there  was 
neither  payment  nor  delivery  is  only  prima  facie,  not  conclusive, 
evidence  that  there  was  no  contract.13  A  policy,  although  ex- 
pressed to  be  made  in  consideration  of  representations  made  in 
the  application,  is  competent  without  the  application,  if  it  does 
not,  in  any  other  manner,  refer  to  it,  and  is  itself  a  complete  con- 


1  Lindauer  v.  Delaware  Ins.  Co.  13  Ark.  461,  470. 

s  Baptist  Ch.  v.  Brooklyn  Fire  Ins.  Co.  28  N.  Y.  153,  affi'g  23  How.  Pr  448. 
*  Wiunesheik  Ins.  Co.  v.  Holzgrafe,  53  111.  516,  s.  c.  5  Am.  R.  64.     Compare  Liv- 
ingston v.  Delatield,  1  Johns.  522. 

4  Van  Tuyl  v.  Westchester  Fire  Ins.  Co.  55  N.  Y.  657. 

5  Angell  v.  Hartford  Fire  Ins.  Co.  59  N.  Y.  171. 

6  Hunter  v.  Am.  Pop.  Life  Ins.  Co.  4  Hun,  794. 

7  As  to  mode  of  proving  handwriting,  see  chapter  XXI.     As  to  effect  of  charter 
provisions  on  mode  of  executing,  see  24  Ohio  St.  345,  s.  c.  15  Am.  R.  612 ;  May  on 
Ins.  65. 

8  Bliss  on  Life  Ins.  253,  §  163 ;  May  on  Ins.  58,  §  56. 

9  Id. ;  May  on  Ins.  56.     Such,  for  instance,  as  payment  of  premium  ;  or,  if  this  be 
waived,  some  other  affirmative  act  of  acceptance.     Bliss  on  Life  Ins.  253,  §  163. 

10  Id. 
"Id. 

12  Fried  v.  Royal  Ins.  Co.  60  N.  Y.  243,  affi'g  47  Barb.  127.  Authentication  as 
"  signed,  sealed  and  delivered,"  without  physical  delivery,  held  conclusive  evidence 
of  contract.  Xenos  v.  Wickham,  L.  R.  2  H.  L.  296. 

11  May  on  Ins.  57,  §  56. 


478  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

tract.1  The  fact  that  there  was  no  application,2  or  that  it  was  not 
signed,8  does  not  affect  the  competency  of  the  policy,  though  it 
refer  to  an  application. 

If  subscribed  by  agent,  his  handwriting  and  authority  must 
be  proved.  If  the  authority  was  in  writing,  it  should  generally 
be  produced  ;  but  it  may  also  be  proved  by  showing  that  defend- 
ants had  recognized  the  act  of  the  agent  in  this  instance,  or  in 
other  similar  instances  in  which  he  had  subscribed  policies  for 
them.4 

If  defendants,  having  possession  of  the  contract,  refuse  to 
produce  it  on  notice,  parol  evidence  of  its  contents  may  be 
given ;  and  all  inferences  arising  from  necessary  ambiguities  in  the 
secondary  evidence  may  be  taken  most  strongly  against  the  com- 
pany.5 

The  usual  blank  form  of  the  company  is  competent  second- 
ary evidence,  in  the  absence  of  the  actual  policy.6 

3.  Delivery. ~\ — Possession  by  the  plaintiff  is  prima  facie,  but 
not  conclusive,  evidence  of   delivery.     Delivery,  in  legal  effect, 
may  be  proved  by  any  act  manifesting  the  intent  of  the  parties 
that  the  instrument  should  have  present  vitality,  although  not 
physically  handed  over.7    Delivery  is  not  proved  by  admissions 
even  of  a  general  agent,  made  after  loss.8    The  date  in  the  policy 
raises  a  legal  though  not  conclusive  presumption  of  the  time  of 
the  execution  and  delivery  of  the  instrument.9 

4.  The  application.'] — In  an  action  on  a  policy,  the  slip,  or  ap- 
plication for  insurance,  unless  referred   to    in  the  policy,   or 
annexed,  as  a  part  of  it,10  is  inadmissible  to  show  the  intention 
of  the  parties ; n  except  on  an  application  to  reform  the  pol- 
icy,12 or  on  an  issue  of  fraud  or  misrepresentation  in  obtaining 


1  Edington  V.  Mut.  Life  Ins.  Co.  67  N.  Y.  185,  rev'g  5  Hun,  1. 
8  May  on  Ins.  174,  §  169. 

3  Bohringer  v.  Empire  Mut.  Life  Ins.  Co.  2  Supm.  Ct.  (T.  <fc  C.)  610. 

4  Rose.  N.  P.  403,  s.  P.  Putnam  v.  Home  Ins.  Co.   123  Mass.  324.     Thus,  for  in- 
stance, where  a  witness  stated  that  he  was  authorized  by  power  of  attorney,  but 
added  that  defendants  had  been  iu  the  habit  of  paying  losses  upon  policies  which  the 
witness  had  subscribed  in  their  name,  the  power  need  not  be  produced.     Rose.  N.  P. 
403. 

8  Caken  v.  Continental  Life  Ins.  Co.  of  N.  Y.  69  N.  Y.  300,  306,  rev'g  41  Super.  Ct. 
(J.  <fe  S.)  296.  The  refusal  to  produce  does  not  supply  the  place  of  secondary  evidence 
so  as  to  raise  a  presumption  that  the  fact  is  as  alleged  ;  but  it  aids  the  secondary 
evidence  by  a  presumption  in  favor  of  the  construction  of  it  most  adverse  to  the  party 
refusing. 

6  Van  Tuyl  v.  Westchester  Fire  Ins.  Co.  55  N.  Y.  657. 

7  May  on  Ins.  61,  §  60. 

8  Contra,  Insurance  Co.  v.  Woodruff,  26  N.  J.  L.  (2  Dutch.)  541 ;  disapproved  by 
Redfield,  in  1  Greenl.  Ev.  135,  n. 

9  St.  John  v.  Am.  Mut.  Life  Ins.  Co.  2  Duer,  419,  s.  c.  less  fully,  12  N.  Y.  Leg. 
Obs.  265,  affi'd  13  N.  Y.  31. 

-    10  Murdock  v.  Chenango  Mut.  Ins.  Co.  2  N.  Y.  210. 

11  Ewer  v.  Washington  Ins.  Co.  16  Pick.  602;  Dow  v.  Whetten,  8  Wend.  160; 
Vandervoort  v.  Smith,  2  Cai.  155.  Contra,  lonides  v.  Pacific  Ins.  Co.  L.  R.  7  Q.  B. 
617 ;  6  Id.  674,  s.  c.  6  Am.  L.  Rev.  297. 

18  Dow  v.  Whetten,  8  Wend.  160. 


I 

ACTIONS  ON  CONTRACTS  OP  INSURANCE.  479 

it.1  Terbal  representations  are  equally  incompetent.  A  written 
application  is  presumed  to  contain  the  representations  which 
induced  the  contract,  and  renders  evidence  of  prior  or  sub- 
sequent oral  representations  incompetent,2  in  the  absence  of 
fraud ;  for  their  admission  would  vary  the  written  contract  by 
parol ;  and  if  they  be  relied  on  as  showing  fraud  or  a  collateral 
warranty,  the  fact  must  be  specially  pleaded  as  such  in  order  to 
be  admissible.8  If  the  policy  refers  to  an  application,  it  may  be 
identified  by  parol ;  and  the  usual  printed  questions  and  written 
answers  made  before  an  insurance  is  effected  are  presumed,  until 
the  contrary  is  shown,  to  be  those  referred  to.4  The  application 
is  admissible  in  evidence  if  pleaded  ; 5  but  its  effect  depends  on 
the  privity  of  the  parties  with  it,  and  the  intent  manifested  by 
its  language  arid  that  of  the  policy.  The  policy  is  admissible 
without  it  unless  it  is  in  plaintiffs  possession.6 

The  law  presumes  that  the  applicant  understood  the  applica- 
tion signed  by  him,  though  drawn  up  by  the  insurer's  agent.7  Still, 
where  the  alleged  false  warranty  is  an  ambiguous  answer,  plaint- 
iff may  prove  that  before  applying  he  stated  the  facts  fully  to  the 
agent,  who  advised  him  that  his  answer  should  be  as  made  in  the 
application  ;  and  that  he  believed  the  answer  to  be  truthful,  and 
would  not  have  signed  the  application  but  for  such  advice.8  The 
purpose  of  such  evidence  is  not  to  vary  or  contradict  the  contract 
of  the  parties,  but  to  preclude  the  party  who  framed  it  from  re- 
lying upon  incorrect  recitals  to  defeat  it,  when  he,  himself,  had 
drafted  those  recitals,  and  was  morally  responsible  for  their  truth- 
fulness.9 So  parol  evidence  is  admissible  that  sucli  agent  who 
filled  out  the  application  was,  at  the  time  of  application,  answered 
truly  by  the  insured,  but  inserted  the  answer  alleged  to  be  false, 
or  omitted  answers  which  should  have  been  inserted,  without  the 
knowledge  of  the  latter,  even  though  the  answer  written  was 
thereupon  read  to  and  signed  by  the  latter.10  Facts  relied  on  as 
establishing  such  fraud  on  the  part  of  the  agent  must  be  clearly 
and  satisfactorily  established.11 


1  Folsom  v.  Mercantile  Ins.  Co.  9  Blatchf.  201 ;  Rawls  v.  Am.  Mut.  Life  Ins.  Co. 
27  N.  Y.  282,  affi'g  36  Barb.  857.  See  also  Valton  v.  National  Loan  Fund  Ass.  Co. 
4  Abb.  Ct.  App.  Dec.,  s.  o.  I  Keyes,  21,  rev'g  17  Abb.  Pr.  268. 

4  Jennings  v.  CUenango  County  Mut.  Ins.  Co.  2  Den.  75 ;  Gates  v.  Madison 
County  Mutual  Ins.  Co.  5  N.  Y.  469 ;  May  on  Ins.  202,  §  192. 

8  Mayor,  dec.  of  N.  Y.  v.  Brooklyn  Fire  Ins.  Co.  3  Abb.  Ct.  App.  Dec.  251. 

4  Clark  v.  Manufacturers'  Ins.  Co.  2  Woodb.  <fe  M.  472. 

5  Weed  v.  Schenectady  Ins.  Co.  7  Lans.  462. 

«  Mut.  Ben.  Life  Ins.  Co.  v.  Robertson,  59  111.  123,  s.  c.  14  Am.  R.  8. 

7  Geib  v.  International  Ins.  Co.  1   Dill.  C.  Ct.  443 ;  and  in  Mass.  <fe  R.  I.  May  on 
Ins.  148,  §  145. 

8  JStua  Live  Stock,  Fire  &  Tornado  Ins.  Co.  v.  Olmstead,  21  Mich.  246,  s.  c.  4 
Am.  R.  483. 

9  North  American  Fire  Ins.  Co.  v.  Throop,  22  Mich.  146,  e.  c.  7  Am.  R.  638. 

10  Insur.  Co.  v.  Mahonc-,  21  Wall.  155 ;  Union  Mut.  Ins.  Co.  v.  Wilkinson,  13  Id. 
222.     Contra,  Ryan  v.  World  Mut.  Life  Ins.  Co.  41  Conn.  168,  8.  c.  19  Ain.  R.  490. 

11  Geib  v.  International  Ins.  Co.  1  Dill.  C.  Ct  443. 


480  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

5.  Authority  and  scope  of  agency. — Neither  the  fact  nor  the 
scope  of  agency  can  be  proved  by  the  agent's  acts,  representations, 
declarations  or  admissions.  The  agency  must  first  be  established ; 
and  either  a  specific  authority,  or  one  of  so  general  a  nature  as  to 
give  him  authority  to  do  the  act  in  question,  or  a  subsequent  rat- 
ification with  full  knowledge,  or  a  holding  out  to  the  world,  must 
be  proved.1  But  the  agent's  course  may  be  proved  in  con- 
nection with  evidence  that  the  company  tacitly  assented  to  it,  or 
held  the  agent  out  to  the  world  as  such,2  or  repeatedly  adopted, 
with  knowledge,  similar  acts  of  his  in  other  dealings,  either  with 
plaintiff  or  third  persons.8  The  court  may  take  judicial  notice  of 
the  way  in  which  contracts  for  insurance  are  usually  negotiated, 
and  that  the  application  of  the  insured  is  usually  drawn  up  by  the 
agent  of  the  insurer.4  In  proof  of  general  agency,  the  possession 
of  blank  policies  and  renewal  receipts  is  relevant.5  Where  the 
act  of  a  sub- agent  is  within  the  scope  of  the  authority  of  the  su- 
perior agent,  ratification  by  the  principal  is  not  necessary.6 

Restrictions  of  authority,  though  expressed  in  the  policy,  are 
not  conclusive ;  but  a  waiver  of  them  by  parol  may  be  shown, 
and  may  be  inferred  from  the  company's  course  of  dealing.7  To 
sustain  an  unratified  act  in  excess  of  express  authority,  the  evi- 
dence must  show,  if  not  a  succession  of  cases,  at  least  several,  in 
which  the  agent  had  done  acts  similar  to  those  for  which  author- 
ity is  claimed,  and  the  subsequent  acquiescence  of  the  principal 
therein,  upon  their  coming  to  his  knowledge.8 

The  authority  of  a  person  to  do  acts  within  the  ordinary  duty 
of  a  clerk,  such  as  to  receive  payments  and  give  receipts,  and  re- 
spond to  inquiries  for  information,  may  be  inferred  from  evi- 
dence that  he  was  behind  defendant's  counter,  and  assumed  to  act 
as  clerk.9 

Notice  to  the  agent  is  notice  to  the  company,  if  given  while 
the  agency  exists,  and  referring  to  business  then  within  the  scope 
of  his  authority,10  or  if  he  is  one  whose  duty  it  is  to  communicate 
such  notice  to  the  company.11  If  given  before  the  agency  or  au- 
thority, it  must  be  shown  to  have  been  so  near  that  he  must  be 


1  Stringham  v.  St.  Nicholas  Ins.  Co.  4  Abb.  Ct.  App.  Dec.  315;  Miller  v.  Phoenix 
Ins.  Co.  27  Iowa,  203,  B.  c.  1  Am.  R.  262. 

2  As,  for  instance,  by  circulars,  even  though  at  the  time  unknown  to  plaintiff. 
Walsh  v.  .(Etna  Life  Ins.  Co.  30  Iowa,  133,  s.  c.  6  Am.  R.  664. 

8  Bunten  v.  Orient  Ins.  Co.  4  Bosw.  254;  2  Greenl.  Ev.  13  ed.  51.     As  to  ratifica- 
tion by  apparent  officer,  see  Buchanan  v.  Exchange  Fire  Ins.  Co.  61  N.  Y.  26. 
4  N.  A.  Fire  Ins.  Co.  v.  Throop,  22  Mich.  146,  P.  c.  7  Am.  R.  638. 
6  Carroll  v.  Charter  Oak  Ins.  Co.  40  Barb.  292  ;  May  on  Ins.  126,  §  126. 
6  Excelsior  Fire  Ins.  Co.  v.  Royal  Ins.  Co.  of  Liverpool,  55  N.  Y.  343. 
'  Insurance  Co.  v.  Norton,  96  U.  S.  (6  Otto),  234. 

8  Bunten  v.  Orient  Mutual  Ins.  Co.  4  Bosw.  254,  and  see  further  decision  in  8  Id. 
448 ;  2  Greenl.  Ev.  13  ed.  51. 

9  Leslie  v.  Knickerbocker  Life  Ins.  Co.  63  N.  Y.  27,  affi'g  2  Hun,  616,  s.  c.  5 
Supra.  Ct.  (T.  &  C.)  193;  and  see  Buchanan  v.  Exchange  Fire  Ins.  Co.  61  N.  Y.  26. 

10  Hayward  v.  Nat.  Ins.  Co.  52  Mo.  181,  s.  c.  14  Am.  R.  400. 

11  May  on  Ins.  156. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  481 

presumed  to  have  recollected  it.1  The  principal  is  not  chargeable 
with  knowledge  on  part  of  the  agent,  as  towards  one  acting  in 
collusion  with  the  agent.2 

6.  Payment  of  Premium^ — A  recital  in  the  policy  that  the 
premium  has  been  paid  is  prima  facie,  but  not  conclusive3  evi- 
dence of  payment. 

If  the  agent  giving  receipt  is  interested  in  the  insurance,  a  re- 
ceipt given  by  hirn  in  his  capacity  of  agent  is  not  sufficient  with- 
out some  additional  evidence  of  payment.4 

7.  Waiver  of  non-payment :  Excuse  for  failure, .] — "Waiver  of 
a  condition  in  an  insurance  policy  requiring  payment  to  make  the 
policy  valid,  may  be  inferred  from  delivery  without  payment ; 5 
and  a  general  agent 6  has  authority  to  waive  pre-payment,  what- 
ever his  secret  instructions.7    Evidence  of  a  prior  dealing  by 
plaintiff  with  the  company  for  years,  and  that  he  was  in  the 
habit  of  getting  policies  without  paying  for  them  at  the  time,  is 
competent,  but  not  controlling  evidence  of  the  intention  of  the 
agent  to  waive  payment.8    Ihe  fact  that  on  a  single  .occasion 
credit  was  given  for  the  premium,  upon  the  present,9  or  even  on  a 
prior  policy,10  is  relevant  on  the  question  of  waiver.    Evidence  of 
a  general  usage  of  insurance  companies  to  receive  payment  after 
the  day,  is  competent u  in  aid  of  other  evidence  of  a  waiver.12 

To  prove  excuse  for  non-payment,  evidence  of  an  oral  agree- 
ment prior  to  the  policy,  that  the  company  should  give  the 
plaintiff  notice  of  the  time  when  each  payment  should  be  due,  and 
that  they  failed  to  do  so,  which  caused  the  default,  is  not  compe- 
tent.13 JBut  evidence  of  the  course  of  dealing  of  the  company  af- 


1  Hayward  v.  Nat.  Ins.  Co.  (above). 

2  Nat.  Life  Ins.  Co.  v.  Minch,  53  N.  Y.  144  ;  rev'g  6  Lans.  100. 

8  Baker  v.  Union  Mut.  Ins.  Co.  43  N.  Y.  283,  rev'g  6  Robt.  393,  s.  c.  6  Abb.  Pr. 
N.  S.  144 ;  Sheldon  v.  Atlantic  Fire  &  Marine  Ins.  Co.  26  N.  Y.  460.  Contra,  Basch 
v.  Humboldt  Mut.  F.  <fe  M.  Ins.  Co.  6  Vroom,  429 ;  Prov.  Life  Ins.  Co.  v.  Fennell,  49 
111.  180;  Rose.  N.  P.  70. 

4  Nuendorff  v.  World  Mut.  Life  Ins.  Co.  69  N.  Y.  392.  Compare  Norton  v.  Phoenix 
Life  Ins.  Co.  36  Conn.  303. 

6  Boehen  v.  \Villiamsburgh  Ins.  Co.  35  N.  Y.  181. 

6  Otherwise  of  a  local  agent  (see  Bush  v.  Westchester  Fire  Ins.  Co.  63  N.  Y.  631, 
rev'g  2  Supm.  Ct.  (T.  &  C.)  629),  and  of  a  clerk  authorized  to  collect  maturing  pre- 
miums only  (Kolgers  v.  Guardian  Life  Ins.  Co.  9  Abb.  Pr.  N.  S.  91,  s.  c.  58  Barb. 
185;  2  Lans.  480) 

7  Sheldon  v.  Atlantic  Fire  &  Marine  Ins.  Co.  26  N.  Y.  460 ;  Wood  v.  Poughkeep- 
sie  Mut.  Ins.  Co.  82  Id.  619;  andseeBodine  v.  Exchange  Fire  Ins.  Co.  51  N.  Y.  117. 
Proof  that  the  agent  was  given  credit  for  the  payment  of  premium,  and  the  company 
demanded  subsequent  premiums  without  insisting  on  forfeiture,  held  not,  as  matter 
of  law,  a  payment.     Wright  v.  Equitable  Life  Assur.  Soc.  41  Super.  Ct.  (J.  <fc  S.)  1. 

8  Church  v.  Lafayette  Fire  Ins.  Co.  66  N.  Y.  222. 
»Id. 

10  Bowman  v.  Agricultural  Ins.  Co.  69  N.  Y.  521,  affi'g  2  Supm.  Ct.  (T.  A  C.)  261. 

11  Helme  v.  Philadelphia  Life  Ins.  Co.  61  Penn.  St.  107  ;  Pino  v.  Merchants'  Mut 
Ins.  Co.  19  La.  An.  214,  233. 

11  It  is  not  alone  enough  to  vary  the  contract.     Howell  v.  Knickerbocker  Life  Ins. 
Co.  8  Robt.  232,  p.  c.  19  Abb.  Pr.  217,  and  cases  cited. 
13  Insurance  Co.  v.  Mowry,  96  U.  S.  (6  Otto),  644. 
31 


482  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

ter  the  issue  of  the  policy,  revoking  the  authority  of  the  agent 
who  first  collected  premiums,  and  notifying  the  insured  from 
time  to  time  where  and  to  whom  to  pay,  will  show  that  he  was 
entitled  to  rely  on  receiving  such  notice,  and  will  estop  them  from 
claiming  a  forfeiture  in  consequence  of  their  omitting  to  give  it.1 
So  evidence  that  the  insured,  not  having  other  means  of  Knowl- 
edge, applied  at  the  company's  office  for  information  as  to  time 
of  payment,  and  was  torn  by  an  apparent  clerk  behind  their  desk 
that  they  would  send  notice,  is  sufficient  to  excuse  delay  in  wait- 
ing for  notice.2  Evidence  that  the  general  agent  to  whom  pre- 
miums had  been  paid,  without  objection  from  the  company,  re- 
ceived a  renewal  premium  on  the  day  when  due,  is  sufficient  and 
conclusive  as  against  the  company,  unless  previous  to  such  pay- 
ment the  assured  had  notice  that  the  agent's  authority  had  been 
revoked  or  qualified.3  Evidence  that  the  company  refused  to  re- 
ceive the  premiums  and  repudiated  the  contract,  wholly  dispen- 
ses with  the  necessity  of  proving  the  offer  of  subsequent  pre- 
miums.4 

8.  Renewal.] — A  renewal  may  be  proved   by  parol,  unless 
the  charter  forbids  oral  contract.6    A  witness  may  state  generally 
that  there  was  or  was  not  a  renewal,6  subject  to  cross-examina- 
tion, but  not  whether  specified  facts  amounted  to  a  renewal.7    A 
request  for  renewal  is  evidence  that  the  representations  on  which 
the  policy  originally  issued  were  adopted  or  assented  to  by  the  one 
making  the  request.8 

9.  Ordinary  course  of  proof  .     Prima  facie  case. ~\ — Tn  ordi- 
nary cases  plaintiff  makes  out  &prima  facie  case  by  proving  the 
policy,  the  renewal  receipts,  if  any  relied  on,  the  loss,  the  giving 
proof  of  loss  as  required  by  the  policy,  and,  if  on  property  not 
valued,  the  value  of  the  property  destroyed.9 

10.  Warranties.'] — Even  when  warranties  are  proved  or  ad- 
mitted, plaintiff  is  not  bound  to  prove  their  truth,  unless  it  is  put 
in  issue.10    In  that  case  the  burden  of  proof  is  on  him  to  show 


1  Insurance  Co.  v.  Eggleston,  96  U.  S.  (6  Otto),  572. 

s  Leslie  v.  Knickerbocker  Life  Ins.  Co.  63  N.  Y.  27,  affi'g  2  Hun,  616.  e.  c.  5  Supm. 
Ct.  193. 

3  Insurance  Co.  v.  McCain,  96  U.  S.  (6  Otto),  84. 

4  Shaw  v.  Republic  Life  Ins.  Co.  69  N.  Y.  286,  affi'g,  with  modification,  67  Barb. 
686. 

5  First  Baptist  Church  v.  Brooklyn  Fire  Ins.  Co.  19  N.  Y.  305,  18  Barb.  69. 

6  Baptist  Church  v.  Brooklyn  Fire  Ins.  Co.  23  How.  Pr.  448,  affi'd  on  the  merits 
.in  28  N.  Y.  163. 

'  See  Lindauer  v.  Delaware  Ins.  Co.  13  Ark.  461,  470. 

8  Clark  v.  Manuf.  ins.  Co.  2  Woodb.  <fe  M.  472. 

9  Geib  v.  International  Ins.  Co.   1  Dill.  C.  Ct.  443 ;    Mut.  Benefit  Life  Ins.  Co.  v. 
Robertson,  69  111.  123,  8.  c.  14  Am.  R.  8.     See  New  Eng.  Fire,  <tc.  Ins.  Co.  v.  Wet- 
more,  32  III.  221. 

10  Boos  v.  World  Mut.  Fire  Ins.  6  Supm.  Ct.  (T.  <fe  C.)  364 ;  Jones  v.  Brooklyn 
Life  Ins.  Co.  61  N.  Y.  79. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  483 

performance  of  the  warranty,1  whether  material  or  immaterial ;  * 
past  or  promissory  ;3  or  acted  on  by  the  insurers  or  not  ;4  and  even 
though  this  reojiire  plaintiff  to  prove  a  negative.5 

But  plaintiff  has  not  the  burden  of  proving  the  truth  of  rep- 
resentations as  distinguished  from  warranties.  Evidence  that  the 
insurer's  agent  had  notice  that  the  fact  was  not  according  to  the 
condition  is  not  alone  competent.6 

A  literal  and  strict  compliance  with  an  express  warranty  must 
be  proved ;  it  is  not  sufficient  to  show  something  tantamount  to 
a  performance,  unless  it  be  a  waiver  or  dispensation  of  perform- 
ance ;7  which  must  be  pleaded  as  such,  and  not  as  a  compliance.8 
But  indirect  evidence  is  competent  from  which  to  infer  strict 
performance.  In  proportion  as  the  warranty  is  general  or  in  the 
nature  of  a  legal  conclusion,  general  evidence  is  sufficient  until 
some  doubt  is  raised.9  Evidence  of  usage,10  or  a  prior  oral  agree- 
ment,11 is  not  competent  to  show  that  what  is  not  strictly  a  com- 
pliance was  so  regarded. 

11.  General  rule  as  to  oral  evidence  to  vary  policy.'] — The 
general  principles 13  that  words  must  have  the  sense  in  which  the 
parties  understood  them  ;  and,  that  to  understand  them  as  the  par- 
ties understood  them,  the  nature  of  the  contract,  the  objects  to  be 
attained,  and  all  the  circumstances  must  be  considered,  are  freely 
applied  to  these  contracts.13  The  intention  is  to  be  ascertained, 
except  in  cases  of  latent  ambiguity,  by  a  development  of  the  cir- 
cumstances under  which  the  instrument  was  made.  Mere  dec- 
larations are  not  admissible  for  the  purpose,  but  the  state  of  the 
party's  knowledge  of  facts  is  competent.  Thus,  notice  to  the  in- 


I  McLoon  v.  Commercial  Mat.  Ins.  Co.  100  Mass.  472,  s.  o.  1  Am.  R.  129;    May 
on  Ins.  192,  §  183. 

8  Id.  §  184;  Ripley  v.  JStna  Ins.  Co.  30  N.  Y.  136,  160,  rev'g  29  Barb.  552; 
Jeffries  v.  Econom.  Life  Ins.  Co.  22  Wall.  47.  Compare  Mut.  Life  Ins.  Co.  v.  Snyder, 
4  Cent.  L.  J.  106. 

3  Wilson  v.  Hampden  Fire  Ins.Co.  4  R.  1. 159, 172 ;  Ripley  v.  ^Etna  Ins.  Co.  (above). 

4  Brennan  v.  Security  Life  Ins.  Co.  4  Daly,  296. 

6  McLoon  v.  Commercial  Mut.  Ins.  Co.  (above).     Contra,  Piedmont  Life  Ins.  Co. 
v.  Ewinir,  92  IT.  S.  (2  Otto),  378. 

4  Dewees  v.  Manhattan  Ins.  Co.  6  Vroom  (N.  J.),  366. 

7  Nat.  Life  Ins.  Co.  v.  Minch,  53  N.  Y.  144,  rev'g  6  Lans.  100. 

8  Rose.  N.  P.  409. 

•  Pacific  Ins.  Co.  v.  Catlett,  4  Wend.  75,  affi'g  1  Id.  561 ;  Rose.  N.  P.  410,  414. 
10  Ripley  v.  ^Etna  Ins.  Co.  (above).     Compare  Crocker  v.  People's,  <fcc.  Ins.  Co.  8 
Cusb.  79.     As  to  limits  of  this  principle,  see  pp.  296,  365,  of  this  vol. 

II  Hovey  v.  American  Mutual  Ins.  Co.  2  Duer,  554. 

12  Discussed  on  p.  29 1  of  this  vol. 

13  Reed  v.  Ins.  Co.  95  U.  S.  (5  Otto),  31.   Compare  Van  Schoick  v.  Niagara  Fire  Ina 
Co.  68  N.  Y.  434,  438,  and  cases  cited;    Insurance  Co.  v.  Wright,  1  Wall.  456  (an 
extreme  case  in  excluding  oral  evidence);  and  Insurance  Co.  v.  Wilkinson,  13  Wall. 
222. 

For  the  purpose  of  upholding  a  contract  of  insurance,  its  provisions  will  be  con- 
strued strictly  against  the  underwriter  (McMaster  v.  Ins.  Co.  of  North  America,  65 
N.  Y.  2-22,  affi't,'  64  Barb.  536;  compare  Rann  v.  Home  Ins.  Co.  53  N.  Y.  387),  and 
liberally  in  favor  of  the  insured  (Rolker  v.  Great  Western  Ins.  Co.  4  Abb.  Ct.  App. 
Dec.  76,  rev'g  8  Bosw.  222;  and  see  Reed  v.  Ins.  Co.  95  U.  S.  (5  Otto),  23,  80). 


484  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

Burers  that  a  change  had  been  made  in  the  use  of  the  property,  is 
competent  to  explain  the  intention  of  an  ambiguous  policy  in  re- 
spect to  rates  of  hazard.  Such  evidence  is  to  be  received  as  will 
place  us,  as  nearly  as  may  be,  in  the  position  of  the  author  of  the 
instrument,  and  enable  Us  to  consider  the  facts  surrounding  him, 
with  his  knowledge  or  ignorance,  and  his  belief  as  to  the  facts.1 

Ambiguity  may  arise  either  from  inconsistent  provisions  or 
from  equivocal  terms ;  and  an  equivocal  term  exists  alike  when 
a  word  has,  in  ordinary  use,  two  or  more  meanings  or  appli- 
cations, or  when  it  may  have  been  used  technically  in  a  sense 
different  from  its  ordinary  meaning  or  application.  Extrinsic  evi- 
dence is  competent  to  show  the  existence  of  the  technical  meaning 
in  a  trade  or  business  involved  in  the  transaction,  and  thus,  at  once, 
to  manifest  and  to  cure  the  ambiguity.2  An  ambiguity,  whether 
apparent  in  the  ordinary  meaning  of  the  language,  or  introduced 
by  extrinsic  evidence  either  of  a  technical  use  01  language,  or  of 
the  existence  of  several  objects  corresponding  to  the  designation, 
may  be  explained  by  oral  evidence  identifying  the  thing  referred 
to.8 

But  the  rule  that  parol  testimony  may  not  be  given  to  con- 
tradict a  written  contract  is  .applied  only  in  suits  between  the 
parties  or  their  privies.  It  does  not  apply  to  prevent  a  party 
from  proving  the  truth  contrary  to  the  instrument,  in  a  conten- 
tion with  a  stranger  to  it.4 

12.  Circular  or  prospectus, ,] — To  render  a  circular  or  prospec- 
tus issued  by  the  company,  competent  against  them  as  qualifying 
the  contract,  it  is  not  enough  to  show  that  it  was  publicly  cir- 
culated before  the  policy  issued.5  There  should  be  evidence 
tending  to  show  that  the  insured  or  the  plaintiff  had  knowledge 
of  the  statement  and  acted  on  it.6 


1  Reynolds  v.  Commerce  Fire  Ins.  Co.  47  N.  Y.  597. 

8  This  is  the  sound  general  principle,  though  some  cases  ignore  it:  Bee,  for  in- 
stance, Ins.  Co.  v.  Wright,  1  Wall.  456. 

8  For  instance,  to  show  what  building  was  meant  by  the  words,  "  known  as  D.  A 
Co.'s  car  factory"  (Blake  v.  Ins.  Co.  12  Gray,  265,  270);  or  by  a  statement  that  the 
things  insured  were  in  plaintiff's  "barn  or  barns"  (Bowman  v.  Agricultural  Ins.  Co., 
59 .N.  Y.  521,  affi'g  2  Supm.  Ct.  [T.  &  C.]  261).  But  where  the  building  is  defined, 
the  fact  that  the  insurer  indorsed  on  the  policy  a  simple  consent  that  a  communica- 
tion opened  into  an  adjoining  building,  should  not  prejudice  the  insurance,  does  not 
let  in  parol  evidence  to  show  that  the  parties  intended  thereby  to  extend  the  insur- 
ance over  such  building.  Liddle  v.  Market  F.  Ins.  Co.  4  Bosw.  179,  affi'd  in  29  N.Y.  184. 

So,  again,  under  a  policy  on  timber  in  a  specified  building,  parol  evidence  is  not 
admissible  to  show  intent  to  include  such  timber  piled  in  the  adjoining  yard  (North 
American  Fire  Ins.  Co.  v.  Throop,  22  Mich.  146,  s.  c.  7  Am.  R.  633),  for  here  is  no 
ambiguity ;  but  under  a  policy  on  a  stock  of  "  ship-timber  in  a  ship-yard,"  bounded 
by  streets,  <fec.,  evidence  of  usage  of  language  is  competent  to  show  that  "  ship-yard," 
as  used  by  the  parties,  means  the  yard,  as  in  fact  used,  thus  embracing  timber  on  the 
sidewalks  (Webb  v.  National  Fire  Ins.  Co.  2  Sandf.  497). 

So  if  there  are  two  buildings,  each  nearly  but  neither  precisely  answering  the 
designation,  j>arol  evidence  to  identify  the  intent  of  the  parties  is  admissible.  Burr 
T.  Broadway  Ins.  Co.  16  N.  Y.  267. 

«  McMaster  v.  Ins.  Co.  of  North  America,  55  N.  Y.  222,  affi'g  64  Barb.  536. 

6  Rose.  N.  P.  436. 

6  Whether  this  is  enough  is  disputed.     Steel  v.  St.  Louis  Life  Ins.  Co.  5  Cent 


ACTIONS  ON  CONTRACTS  OF   INSURANCE.  485 

13.  Mistake.'} — Under  the  new  procedure,  if  the  complaint 
alleges  facts  constituting  a  mistake,  though  without  the  formal 
allegation  of  mistake,  and  demands  a  reformation  of  the  policy, 
parol  evidence  is  competent  to  show  that  both  the  insurer  and 
the  insured  meant  to  insure  the  thing  lost,  and  meant  to  put  into 
the  policy  no  expression  as  to  its  character  or  situation  different 
from  the  facts,  but,  by  misconception  as  to  language,  they  used 
terms  expressing  that  which  they  did  not,  and  failing  to  express 
that  which  they  did  intend.1     Under  allegations  permitting  him 
to  prove  mistake,  plaintiff  may  show  that  he  was  thrown  off  his 
guard  and  dissuaded  from  a  correction  of  the  language  of  the 
policy  by  the  acts  or  declarations  of  the  agent  of  the  insurer.2 

14.  Usage.'] — Ambiguous  words  in  a  policy  may  be  construed 
by  extrinsic   evidence  of  accompanying  circumstances  and  the 
usages  of  the  business  in  which  the  property  insured  was  em- 
ployed ; 3  but  evidence  of  usage  is  not  competent  to  vary  or  con- 
tradict what  is  expressed,  nor  even  what  is  necessarily  implied,4 
in  unambiguous  language.    Yet  it  is  competent,  to  show  the  course 
of  trade  and  business  to  which  the  parties  refer ;  and  when  that 
is  ascertained,  the  court  must  apply  the  language  of  the  policy. 
To  justify  departure  from  the  ordinary  meaning  of  its  language, 
a  usage  of  language  must  be  shown,  from  which  the  court  may 
see  that  the  phraseology  used  had,  in  the  intent  of  the  parties 
adopting  it,  a  special  or  technical  meaning.     When  this  is  shown, 
the  court  still  apply  the  language  of  the  policy,  but  apply  it  as 
thus  understood/    When,  however,  the  language,  properly  inter- 
preted, calls  for  a  certain  thing,  evidence  of  usage  of  trade  to 
suffer  or  be  satisfied  with  something  else,  under  that  language,  is 


L.  J.  153;  Ruse  v.  Mut.  Benefit  Life  Ins.  Co.  23  N.  Y.  518 ;  24  Id.  653  ;  and  see  1C 
Alb.  L.  J.  175,  and  cases  cited.  According  to  settled  general  principles,  it  should 
be  enough,  if  subsequent  to  the  policy,  thus  bringing  the  case  within  the  rules  as  to 
•waiver  and  estoppel.  See  paragraph  22. 

1  Maher  v.  Hibernia  Ins.  Co.  67  N.  Y.  283,  affi'g  6  Hun,  353. 

s  Id.  As  to  ignorance  of  fine  print  clause,  see  Ervin  v.  N.  Y.  Central  Ins.  Co.  3 
Supm.  Ct.  (T.  «fe  C.)  213. 

3  N.  Y.  Belting  Co.  v.  "Washington  Fire  Ins.  Co.  10  Bosw.  428,  and  cases  citea. 

4  Hearno  v.  Marine  Ins.  Co.  20  Wall.  488. 

5  Thus,  respecting  the  phrase  "  glassware  in  casks,"  usage  of  trade-language  may 
be  proved  to  show  that  it  means  open  casks  (Bend  v.  Georgia  Ins.  Co.  1  N.  Y.  Leg. 
Obs.  12;  1  Greenl.  Ev.  13  ed.  844);  "bundles  of  rods"  may  be  shown  to  include,  in 
trade.usago,  bar  iron  (Evans  v.  Commercial,  <fec.  Ins.  Co.  6  R.  I.  47,  63);  "cargo"  to 
include  live  stock  (Allegro's  Admr.  v.  Mary^nd  Ins.  Co.  2  Gill  <fe  J.  13fi);  "  roots" 
not  t  >  include  perishable  roots  such  as  sarsaparilla  (Coit  v.  Com.  Ins.  Co.  7  Johns. 
885);  "skins"  n>  t  to  include  furs  (Astor  v.  Union  Ins.  Co.  7  Cow.  202);  nnd  that 
in  a  policy  upon  goods  out,  and  upon  their  proceeds  home,  "proceeds"  includes  the 
same  goods  on  the  return  voyage  (Dow  v.  Whetten,  8   Wend.   160);  and  "brick 
buildings"  may  be  shown  to  include  buildings,  the  partitions  separating  which  were 
of  wood,  filled  in  wish  brick  (Mead  v.  Northwestern  Ins.  Co.  7  N.  Y.  530).     But,  on 
the  other  hand,  under  a  policy  on  tackle,  apparel,  "  boats,"  <fcc.,  it  ia  not  admissible 
to  show  that  boats  slung  outside  the  ship's  quarter,  aCre  not  deemed  to  be  included 
(Blackett  v.  Rojal  Exch.  Assurance  Co.  2  Cr.  &  J.  244). 


486  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

not  competent.1  In  no  case  is  usage  competent  to  vary  the  set- 
tled rules  of  commercial  law,s  nor  the  meaning  of  words  which 
have  received  a  settled  judicial  interpretation.3  Where  the  law 
is  unsettled,  the  construction  may  be  determined  by  the  usage, 
but  not  by  the  opinion  of  witnesses.4 

A  general  usage  of  trade  may  be  judicially  noticed.5  Other 
usages  must  be  proved:  and  it  is  better  to  be  prepared  with 
some  evidence  even  of  a  general  usage.6  If  the  usage  is  that  of 
the  trade  of  the  insured,  the  insurers  are  presumed  to  nave  known 
it.7  If  it  is  that  of  insurers,  knowledge  of  it  must  be  brought 
home  to  the  insured.8  Evidence  of  a  known  usage  of  trade  is  not 
objectionable  merely  because  it  shows  only  a  usage  in  the  particu- 
lar trade  in  question.9  The  local  usage  of  the  insurers  only,  which 
does  not  prevail  where  the  policy  was  executed,  nor  where  the 
insured  resided,  is  not  admissible,  to  countervail  the  local  usage 
of  the  place  where  the  policy  was  made.10  A  general  usage  of 
trade  may  be  shown,  although  it  is  founded  on  the  laws  or 
edicts  of  the  government  01  the  place.  The  usage  may  be 
proved  by  parol,  and  its  effects  are  the  same,  whether  it  originated 
in  an  edict  or  in  instructions  given  by  a  government  to  its  offi- 
cers.11 Usage  is  to  be  proved,  as  a  fact,  by  evidence  of  usage,  not 
by  the  opinion  of  the  witness  as  to  the  enect  or  meaning  of  the 
contract.12  The  witness  must  be  conversant  with  the  particular 
business,  whether  that  of  insurance  or  of  another  trade,  the 
usage  of  which  is  sought  to  be  proved  as  controlling.13 

15.  Ownership  or  insurable  interest.'] — Interest  need  not  be 
proved,  unless  put  in  issue.14  It  cannot  be  proved  by  the  policy 
alone  ; 1S  but  plaintiff  cannot  contradict  the  language  of  the 
policy 16  or  of  his  application,17  by  proving  a  different  interest 
from  that  stated. 


1  Upon  this  distinction,  nearly  all  the  well-considered  cases,  however  much  apparent 
conflict  they  involve,  arrange  themselves  in  harmony. 

*  Randall  v.  Smith,  63  Me.  105,  s.  c.  18  Am.  R.  200,  and  cases  cited.  Contra, 
Fulton  Ins.  Co.  v.  Milner,  23  Ala.  423,  427. 

8  Bargett  v.  Orient  Mut.ual  Ins.  Co.  3  Bosw.  385. 

4  Winthrop  v.  Union  Ins.  Co.  2  Wash.  C.  Ct.  7. 

6  Sleght  v.  Hartshorne,  2  Johns.  531. 

6  See  p.  297  of  this  vol. 

7  Noble  v.  Kennoway,  2  Dougl.  613 ;    see  also  1  Abb.  N.  C.  470,  note.     Compare 
Eipley  v.  -<Etna  Ins.  Co.  30  N.  Y.  1 36. 

8  Hill  v.  Hibernia  Ins.  Co.  10  Hun,  26. 

9  Astor  v.    Union  Ins.   Co.   7   Cow.   202 ;    Thompson  v.  Sloan,  23  "Wend.  70, 

COWEN,  J. 

10  Child  v.  Sun  Mutual  Ins.  Co.  3  Sandf.  26. 

11  Livingston  v.  Maryland  Ins.  Co.  7  Cranch,  506,  539,  547. 

12  Steinbach  v.  La  Fayette  Fire  Ins.  Co.  54  N.  Y.  90;   and  see  Steinbach  Y  Ins. 
Co.  13  Wall.  183. 

13  Evans  v.  Commercial,  <fcc.  Ins.  Co.  6  R.  I.  47,  53. 

14  Rose.  N.  P.  404. 

15  See  Clendining  v.  Church,  3  Cai.  141 ;  Rose.  N.  P.  404.    Compare  Huth  v  N.  Y. 
Mut.  Ins.  Co.  8  Bosw.  538. 

16  Jennings  v.  Chenango  Mut.  Ins.  Co.  2  Den.  72,  79. 

17  Birmingham  v.  Empire  Ins.  Co.  42  Barb.  457. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.        487 

"Where  it  appears  upon  the  face  of  the  policy,  by  a  fair  inter- 
pretation, that  there  was  an  intention  to  insure  the  owner  or 
owners,  then  extrinsic  evidence  may  be  given  to  show  who  such 
owner  is,  and  the  nature  and  extent  of  the  interest  covered.1  If 
the  name  of  the  one  for  whose  benefit  the  insurance  is  made  does 
not  appear  upon  the  face  of  the  policy,  or  if  the  designation  used 
is  applicable  to  several  persons,  or  so  imperfect  that  it  cannot  be 
understood  alone,  extrinsic  evidence  may  be  resorted  to,  to  ascer- 
tain the  meaning  of  the  contract.2  The  rules  allowing  oral  proof 
to  show  the  real  party  in  interest 3  are  now  freely  administered, 
so  far  as  explaining  the  instrument  is  concerned ; 4  but  are  sub- 
ject to  important  qualification,  resulting  from  the  peculiar  nature 
of  insurance,  and  the  usual  clauses  as  to  ownership  requiring  that 
the  real  interest  must  not  be  concealed.5 

Under  a  general  averment  of  interest  in  the  entire  subject  of 
insurance,  plaintiff  may  prove  his  particular  interest.6 

The  amount  and  absolute  or  contingent  character  of  the  in- 
terest of  the  insured,  or  the  validity  of  his  title,  are  not  material, 
except  on  the  question  of  fraud  or  of  wager  policy,  or  amount  of 
loss/ 

16.  Mode  of  proving  ownership.'} — Evidence  of  possession 
and  acts  of  ownership  is  prima  facie  evidence  of  title.8 

Property  in  a  ship  may  be  proved  by  parpl  evidence  of  the 
possession,  unless  disproved  by  the  production  of  the  written 
documents  of  the  ship  under  the  register  acts.9  Property  in 
goods  may  be  shown  by  evidence  that  plaintiff  bought  and  paid  for 
them  ; 10  or  by  producing  a  bill  of  lading,  stating  the  property  to 
belong  to  plaintiff,11  or  directing  delivery  to  him,12  the  captain 


1  Mead  v.  Mercantile  Mut.  Ins.  Co.  67  Barb.  519;  Catlett  v.  Pacific  Ins.  Co.  1  Wend 
661 ;  Foster  v.  United  States  Ins.  Co.  11  Pick.  85  ;  Bidwell  v.  Northwestern  Ins.  Co. 
24  N.  Y.  302. 

5  Clinton  v.  Hope  Ins.  Co.  45  N.  Y.  454,  affi'g  51  Barb.  647 ;  Turner  v.  Burrows, 
8  Wend.  144,  affi'g  5  Id.  541  ;  explained  by  Burrows  v.  Turner,  24  Wend.  276. 

3  Page  298  of  this  vol. 

4  Pitney  v.  Glenn's  Falls  Ins.  Co.  65  N.  Y.  6. 

5  See,  for  instance,  Solms  v.  Rutger's  Fire  Ins.  Co.  4  Abb.  Ct.  App.  Dec.  279. 
8  Murray  v.  Columbian,  Ins.  Co.  11  Johns.  302. 

I  See  May  on  Ins.  82,  §  83  ;  105,  §  109. 

8  Thomas  v.  Foyle,  6  Esp.  88  (of  a  ship);  BAETOL,  C.  J.,  Franklin  Fire  Ins.  Co.  v. 
Chicago  Ice  Co.  36  Md.  102,  s.  c.  11  Am.  R.  469  (of  a  building) ;  Rose.  N.  P.  405  (of 
goods). 

9  And  such  parol  evidence  of  ownership,  arising  from  possession  at  a  particular 
period,  is  not  disproved  by  showing  a  prior  register  in  the  name  of  another  and  a 
subsequent  register  to  the  same  person.     Robertson  v.  French,  4   East,  130,  136. 
Compare  Sharp  v.  United  Ins.  Co.  14  Johns.  201 ;    Leonard  v.  Huntington,  15  Id. 
298. 

10  Sturm  v.  Atlantic  Mutual  Ins.  Co.  38  Supr.  Ct.  (6  J.  <fe  S.)  281.    Compare  Frank- 
lin Fire  Ins.  Co.  v.  Vaughan,  92  U.  S.  (2  Otto),  516.     Where,  to  prove  property  in  a 
cargo  by  purchase  beyond  seas,  the  plaintiff  produced  a  bill  of  parcels  of  one  G.,  at 
Petersburg,  with  his  receipt  to  it,  and  proved  his  hand,  LKE,  C.  J.,  admitted  it  as  evi- 
dence against  the  insurers.     Russel  v.  Boheme,  2  Str.  1127;  Rose.  N.  P.  405. 

II  Maryland  In*.  Co.  v.  Ruden,  6  Cranch,  338. 
15  Rose.  N.  P.  405. 


488  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

proving  that  he  received  the  goods  under  it.1  And  where  the 
goods  are  made  deliverable  to  the  consignor,  the  bill  indorsed  by 
him,  either  specially  or  in  blank,  is  evidence  of  interest  in  the  in- 
dorsee or  holder ; 2  but  such  evidence  is  prima  facie  only,  and 
not  conclusive.8  The  word  "consigned"  implies  agency,  not 
ownership  in  the  consignees.4  In  marine  insurance,  a  common 
mode  of  proof  is  to  call  the  captain  or  master,  who  will  prove 
that  he  was  appointed  and  employed  by  the  parties  in  whom  the 
interest  is  averred  ;  and  though  it  should  appear,  on  cross-exam- 
ination, that  the  plaintiff  claims  under  a  bill  of  sale,  it  is  not,  on 
that  account,  necessary  for  him  to  produce  the  bill  or  the  ship's 
register,  unless  such  further  evidence  should  be  rendered  neces- 
sary in  support  of  the  prima  facie  proof  of  ownership,  in  conse- 
quence of  proof  to  the  contrary.5  Where  interest  is  in  one  who 
was  never  in  possession,  it  may  be  proved  by  showing  the  owner- 
ship of  the  persons  under  whom  he  claims,  and  the  derivative 
title  from  them,  such  as  a  bill  of  sale.6 

The  mere  fact  that  a  third  person  was  in  possession  does  not 
render  his  declarations  that  he  was  owner  admissible  against 
plaintiff.7 

17.  The  peril.'] — Insurers  are  presumed  to  be  acquainted  with 
the  customs  of  the  place  where  they  transact  their  business,  as 
well  as  with  the  usages  of  the  trade  to  which  their  contract  re- 
lates ; 8  but  not  necessarily  with  all  the  intelligence  contained  in 
the  papers  taken  at  their  office ;  although  the  general  presumption 
is,  that  the  agents  of  a  marine  office  will  examine  with  some  care 
those  items  of  marine  intelligence  which  are  expressly  designed 
speedily  to  diffuse  information  upon  a  subject  so  immediately  in- 
teresting to  them,  especially  in  relation  to  vessels  belonging  to 
their  own  port.9    To  aid  in  the  construction  of  the  policy,  it  is 
competent  to  show  that  the  defendants  had  insured  the  property 
for  several  years,  and  knew  the  uses  to  which  it  was  applied,  and 
generally  the  nature  and  extent  of  the  risk ; 10  but  such  evidence 
cannot  vary  explicit  language  in  the  policy.11 

18.  Loss^\ — The  burden  of  proving  a  loss  from  a  cause,  and 
to  an  amount  for  which  the  insurers  are  liable,  is  upon  the  in- 


I  M' Andrew  v.  Bell,  1  Esp.  373. 

8  Lickbarrow  v.  Mason,  2  T.  R.  71. 

3  Rose.  N.  P.  405  ;  Maryland  Ins.  Co.  v.  Ruden,  6  Cranch,  338 ;  Blagg  v.  Phoenix 
Ins.  Co.  3  Wash.  C.  Ct.  6. 

4  Rolker  v.  Great  Western  Ins.  Co.  4  Abb.  Ct.  App.  Dec.  76. 

5  Rose.  N.  P.  405,  citing  Robertson  v.  French,  4  East,  136. 

6  Rose.  N.  P.  405. 

'  Eureka  Ins.  Co.  v.  Robinson,  56  Penn.  St.  256,  266. 

8  Hartshorne  v.  Union  Mut.  Ins.  Co.  36  N.  Y.  172,  affi'g  5  Bosw.  538  ;  paragraph 
14,  above. 

9  Green  v.  Merchants'  Ins.  Co.  10  Pick.  406. 

10  Mayor,  <fec.  of  N.  Y.  v.  Exchange  Fire  Ins.  Co.  3  Abb.  Ct.  App.  Dec.  261,  affi'g 
9  Bosw.  424,  and  9  Abb.  Pr.  243,  note. 

II  Pindar  Y.  Resolute  Fire  Ins.  Co.  47  N.  Y.  1 14 ;  but  compare  36  N.  Y.  648. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.        489 

sured.1  The  preliminary  proofs,  being  ex  parte,  are  not  compe- 
tent on  this  question,2  unless  connected  with  an  admission  on  the 
part  of  the  insurers.8  The  opinion  of  a  witness  to  the  effect  that 
a  loss  has  occurred  of  a  nature  and  extent  entitling  the  plaintiff 
to  recover,  is  not  competent ; 4  but  to  explain  obscure  causes  of 
injury,  evidence  of  similar  injuries  to  other  property  similarly 
situated  may  be  relevant.5 

19.  Value  •  Damage.'] — In  addition  to  general  rules  as  to  prov- 
ing value  and  damage,  elsewhere  stated,  it  should  be  observed 
that  the  invoice,  or  bill  of  parcels  showing  the  cost,  are  compe- 
tent prima  facie  evidence  of  value ; 6  and  its  correspondence  with 
the  books  of  the  party  producing  it  need  not  be  shown.7    Price 
or  value  of  similar  property  is  not  competent  without  evidence  of 
identity  in  quality  or  value.8 

The  valuation  in  a  valued  marine  policy  is  conclusive 9  on  the 
insurers,  if  there  was  a  total  loss,  and  no  fraud,  imposition,10  or  ac- 
cidental overrating.11  Hence  plaintiff  need  not  prove  value.13  Oh 
a  partial  loss,  or  on  an  open  policy,  he  must.18  A  provisional 
valuation  in  a  preliminary  agreement  is  not  conclusive.14 

20.  Preliminary  proofs."] — If  preliminary  proofs  of  loss  are 
required  by  the  contract,  plaintiff  must  prove  substantial   and 
timely  compliance,15  or  waiver  by  the  insurers.  Statements  or  acts 
by  the  insurers,  justly  leading  the  insured  to  rest  on  his  proofs  as 
a  compliance  with  the  condition,  or  even  silence  when  they  are 
delivered,  coupled  with  plain  assertion  of  a  distinct  objection,  or 
a  mere  general  denial  of  liability,  are  evidence  of  waiver  of  other 
objections  which  might  have  been  remedied.     Where  the  pre- 


1  Cory  v.  Boylston  Fire  &  Marine  Ins.  Co.  107  Mass.  140,  s.  c.  9  Am.  R.  14,  and 
cases  cited.  And  see  Ogden  v.  N.  Y.  Mutual  IDS.  Co,  4  Bosw.  447  ;  35  N.  Y.  418. 
What  is  necessary  to  prove  a  total  loss  of  machinery  and  other  cargo,  see  Ins.  Co.  v. 
Fogarty,  19  Wall.  640,  and  cases  cited. 

*  Citizens'  Fire  Ins.  Security  <fc  Loan  Co.  v.  Doll,  35  Md.  89,  s.  c.  6  Am.  R.  360 ; 
Yonkers  <fe  N.  Y.  Fire  Ins.  Co.  v.  Hoffman  Fire  Ins.  Co.  6  Robt.  316. 

8  Insurance  Co.  v.  Newton,  22  Wall.  82. 

4  Rider  v.  Ocean  Ins.  Co.  20  Pick.  259,  262. 

B  Bradford  v.  Boylston  Fire  &  Marine  Ins.  Co.  11  Pick.  162. 

8  Graham  v.  Pennsylvania  Ins.  Co.  2  Wash.  C.  Ct.  113.  Contra,  De  Groot  v. 
Fulton  Fire  Ins.  Co.  4  Robt.  G04 ;  Wolf  v.  Nat.  Marine  and  Fire  Ins.  Co.  20  La.  Ann. 
683. 

I  Graham  v.  Penn.  Ins.  Co.  (above).     Compare  Insurance  Co.  v.  Weide,  9  Wall. 
677. 

8  De  Groot  v.  Fulton  Fire  Ins.  Co.  4  Robt.  504. 

9  Marine  Ins.  Co.  v.  Hodgson,  6  Cranch.  206,  220. 

10  Kane  v.  Commercial  Ins.  Co.  8  Johns.  229 ;  Whitney  v.  American  Ins.  Co.  8 
Cow.  210. 

II  Watson  v.  Ins.  Co.  of  North  America,  3  Wash.  C.  Ct.  1.     If  the  valuation  is  by 
weight,  <fec.,  the  standard  of  the  place  where  the  insurance  was  effected  will  be  pre- 
sumed intended.     Gracie  v.  Bowne,  2  Cai.  30. 

"  Sturm  v.  Atlantic  Mutual  lus.  Co.  38  Super.  Ct.  (6  J.  <fc  S.)  281,  303,  affi'd  63  N. 
Y.  77 ;  Delano  v.  Am.  Ins.  Co.  42  Barb.  142. 

13  Hose.  N.  P.  426. 

14  Fnbbri  v.  Merchants'  Mut.  Ins.  Co.  6  Lans.  446. 

15  Blisa  ou  Life  Ins.  435,  g  257,  <fcc. ;  May  on  Ins.  664,  §  460,  Ac. 


490  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

liminary  proofs  are  in  defendant's  possession,  and  not  produced 
by  them,  evidence  that  they  were  made  in  presence  of  defend- 
ant's agent,  by  filling  a  blank  furnished  by  them,  and  were  re- 
ceived without  objection,  is  enough  to  go  to  the  jury,  without 
proof  of  contents.1  Notice  of  loss  is  not  equivalent  to  proof  of 
loss ; 8  and  silence  on  its  receipt  is  not  a  waiver.3  Slight  evidence 
that  the  certifying  magistrate  was  the  nearest  one  is  enough.4 
Evidence  that  the  nearest  magistrate,  &c.,  on  a  proper  application 
by  the  insured,  refused  to  give  a  certificate  such  as  the  policy  stipu- 
lated for,  is  not  sufficient  to  dispense  with  the  requirement,  in  the 
absence  of  any  evidence  of  interference  or  waiver  by  defendants.6 

The  preliminary  proofs,  duly  furnished,  are  admissible ;  but 
are  not  competent  evidence  in  favor  of  plaintiff  of  the  facts 
therein  stated.6  They  are  competent  evidence  in  favor  of  the  in- 
sured, and  against  plaintiff,  as  his  admissions  of  the  facts  repre 
sented  therein.7  They  are  not,  however,  conclusive ; 8  but  they 
are  generally  sufficient  against  the  insured,  unless  it  be  shown 
that  the  representations  were  made  under  a  misapprehension  of 
the  facts,  or  in  ignorance  of  material  information  subsequently 
had.9  And  even  then  the  insured  will  not  be  allowed  on  the  trial 
to  show  that  the  facts  were  different  from  those  stated,  if  the  in- 
surers have  been  prejudiced  in  their  defense  by  relying  on  the 
statements  contained  in  the  proofs.  In  these  cases  the  question 
is  one  of  equitable  estoppel.1"  A  statement  which  was  not  called 
for  by  the  contract  may  be  corrected  by  evidence  of  mistake, 
without  giving  notice  to  the  insurers  before  the  trial.11 

21.  Notice  to  company.'] — Duly  mailing  notice  or  proofs  of 
loss,  is  evidence  for  the  jury,12  but  not  conclusive  evidence,13  that 


1  Life  Insurance  Co.  v.  Francisco,  IT  Wall.  672 ;  Hincken  v.  Mut.  Benefit  Life 
Ins.  Co.  BO  N.  Y.  657,affi'g  6  Lans.  21. 

2  O'Reilly  v.  Guardian  Mut.  Life  Ins.  Co.  60  N.  Y.  169. 

3  Id. 

4  May  on  Life  Ins.  671,  §  466. 

5  Johnson  v.  Phoenix  Ins.  Co.  112  Mass.  49.  s.  o.  17  Am,  R.  65  ;  Brown  v.  Mayor 
of  N.  Y.  63  N.  Y.  239. 

8  New  Ion  v.  Mut.  Benefit  Life  Ins.  Co.  2  Dill.  154;  paragraph  18  (above); 
Howard  v.  City  Fire  Ins.  Co.  4  Den.  5o2.  Contra,  Jones  v.  Mechanics'  Fire  Ins.  Co. 
86  N.  J.  (7  Vroom),  29,  s.  c.  13  Am.  R.  405. 

7  But  a  separate  narrative,  such  aa  a  newspaper  slip,  submitted  with  the  proofs, 
but  not  sworn  to,  nor  necessary  as  a  part  of  them,  is  not  admissible  in  favor  of  the  in- 
surers.    Clieff  v.  Mut.  Ben.  Ins.  Co.  99  Mass.  317. 

8  A  statement  in  the  proof  of  loss  that  the  premises  were  vacant  at  the  time  of  the 
fire,  is  not  conclusive  to  prevent  the  insured  from  proving  the  circumstances  of  va- 
cancy, so  as  to  show  that  it  was  not  within  the  terms  of  the  policy.     Cummins  v. 
Agricultural  Ins.  Co.  67  N.  Y.  260,  rev'g  5  Hun,  554. 

9  Insur.  Co.  v.  Newton,  22  Wall.  32. 

10  Campbell  v.  Charter  Oak  Ins.  Co.  10  Allen,  213  ;  Irving  v.  Excelsior  Ins.  Co.  1 
Bosw.  507,  as  explained  in  22  Wall.  86.     Compare,  however,  McMaster  v.  Ins.  Co.  of 
N.  Am.  55  N.  Y.  222,  am'g  64  Barb.  536;  Parmelee  v.  Hoffman  Fire  Ins.  Co.  64  N. 
Y.  193. 

11  Connecticut  Mut.  Life  Ins.  Co.  v.  Schwenk,  94  U.  S.  (4  Otto),  593. 

12  Killips  v.  Putnam  Fire  Ins.  Co.  28  Wis.  472,  s.  o.  9  Am.  R.  506. 

13  Plath  v.  Minnesota  Farmers'  Mutual  Firo  Ins.  Association,  23  Minn.  479,  B.  c, 
23  Am.  R.  697. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  491 

the  company  received  them  in  due  course  of  mail.  Evidence  of 
notice  to  one  who  was  not  the  proper  agent  to  receive  it,  may  be 
aided  by  evidence  that  the  company  acted  on  it,  and  will  sustain 
an  inference  of  waiver.1 

22.  Waiver  of  conditions  or  forfeiture. ~] — Waiver  of  a  condi- 
tion prior  to2  or  contemporaneous3  with  the  execution  of  the 
writing  containing  the  condition  cannot  be  proved  by  parol.     A 
waiver  subsequent  to  the  policy  may  be  shown  by  parol,  notwith- 
standing the  policy  expressly  requires  a  writing.*    To  prove  a 
waiver  of  a  condition,  the  evidence  must  justify  the  inference  of 
an  agreement  founded  on  a  valuable  consideration  ;  or  the  act  re- 
lied on  must  be  such  as  to  estop  the  insurer  from  insisting  on  per- 
formance of  the  contract  or  forfeiture  of  the  condition.5     If  the 
forfeiture  was  not  absolute,  but  optional,  there  must  be  evidence 
that  the  option  was  manifested.6    Even  after  forfeiture,  a  waiver, 
and  the  revival  of  the  policy,  may  be  shown  by  any  act  from 
which  the  consent  of  the  underwriters  may  be  inferred.7 

A  general  agent  has  power  to  waive  most  forfeitures  ;  a  local 
agent  or  clerk  has  not.8  The  charter  and  by-laws  are  admissible 
in  evidence  against  the  insured  to  show  who  are  competent  to 
waive  a  forfeiture.9  Where  facts  tending  to  show  waiver  are  in 
evidence,  the  question  of  waiver  is  a  conclusion,  and  a  witness 
should  not  be  allowed  to  express  his  opinion  on  it,  or  be  asked 
generally  whether  there  was  a  waiver.10 

23.  Adjustment.] — An  adjustment  of  loss,  if  made  by  the  in- 
surer, with  knowledge  of  all  the  facts,  is  conclusive  on  him ; n 
otherwise,  if  he  show  that  it  was  made  on  the  misrepresentation 
(whether  intentional  or  not)  of  the  insured.13    In  a  case  of  con- 


1  Inland  Ins.  Co.  v.  Stauffer,  9  Cas?y,  397,  403  ;  and  see  Kendall  v.  Holland  Pur- 
chase Ins.  Co.  2  Supra.  Ct.  (T.  &  C.)  375.  As  to  what  amounts  to  notice  to  the  com- 
pany, see  Thomas  v.  Builders'  Mut.  Fire  Ins.  Co.  20  Am.  11.  317,  322,  note. 

1  Hartford  Fire  Ins.  Co.  v.  Davenport,  Mich.  8.  Ct.  Oct.  1877,  Cent.  L.  J. 

8  Lamatt  v.  Hudson  River  Ins.  Co.  17  N.  Y.  199,  note. 

4  Carroll  v.  Charter  Oak  Ins.  Co.  Abb.  Ct.  App.  Dec.  316,  affi'g  40  Barb.  292 ;  In- 
surance  Co.  v.  Norton,  96  U.  S.  (6  Otto),  234;  and  see  Bodine  v.  Exchange  Fire  [ns. 
Co.  61  N.  Y.  117.  For  conflicting  cases  on  waiver  of  clauses  as  to  consent  to  other 
insurance,  see  Gilbert  v.  Phoenix  Ins.  Co.  36  B  irb.  372 ;  Couch  v.  City  Fire  Ins.  Co. 
of  Hartford,  38  Conn.  181,  8.  c.  9  Am.  R.  375;  Goodall  v.  New  Eng.  Mut.  Fire  Ins. 
Co.  5  Foster  (N.  H.),  169,  189;  Barrett  v.  Union  Mut.  Fire  Ins.  Co.  7  Gush.  175, 180; 
Union  Mut.  Ins.  Co.  v.  Wilkinson,  13  Wall.  (U.  S.)  222;  1  Greenl.  Ev.  13  ed.  826, 
§  281;  Thomas  v.  Builders'  Mutual  Fire  Ins.  Co.  119  Mass.  121,  s  c.  20  Am.  R.  317; 
Lindley  v.  Union  Farmers'  Mutual  Fire  Ins.  Co.  65  Me.  368,  s.  o.  20  Am.  R.  701. 

6  Ripley  v.  yEtna  Ins.  Co.  30  N.  Y.  136,  rev'g  29  Barb.  552;  Leslie  v.  Knicker- 
bocker Life  Ins.  Co.  63  N.  Y.  27;  affi'g  2  Hun,  616,  s.  c.  5  Supra,  Ct.  193;  Insurance 
Co.  v.  Eggleston,  96  U.  S.  (6  Otto),  572 ;  Beatty  v.  Lycoming  Co.  Mut.  Ins.  Co.  66 
Penn.  9,  s.  o.  5  Am.  R.  318;  Insurance  Co.  v.  Wolff,  95  U.  S.  (5  Otto),  326. 

6  Mut.  Life  Ins.  Co.  v.  French,  30  Ohio  St.  240. 

*  Shearman  v.  Niagara  Falls  Ins.  Co.  46  N.  Y.  326,  affi'g  9.  Sweeny,  470. 

8  Paragraph  5. 

9  Kolgers  v.  Guardian  Life  Ins.   Co.  9  Abb.  Pr.  N.  S.  91,  s.  c.  58  Barb.  185,  2 
Lans.  480. 

10  Adams  v.  Greenwich  Ins.  Co.  4  L.  <fe  Eq.  R.  291. 

11  Dow  T.  Smith,  1  Cat  82. 

11  Faugier  v.  Hallett,  2  Johns.  Cai  233 ;  Rose.  N.  P.  425. 


492  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

tributing  policies,  an  adjustment  by  an  expert  may  be  submitted 
to  the  jury,  not  as  evidence  of  the  facts  stated  therein,  nor  as  ob- 
ligatory, but  to  assist  the  jury  in  calculating  the  amount  of  lia- 
bility upon  the  several  hypotheses  of  fact  mentioned  in  the  ad- 
justment, if  they  find  either  hypothesis  correct.1 

24.  Declarations  and  admissions  of  officers  and  agents.'] — In 
addition  to  what  has  been  already  said  on  this  point,2  it  may  be 
useful  to  add  that  evidence  of  admissions  or  declarations  of  a  dis- 
tinct fact,  made  by  the  president  or  other  proper  officer  having 
power  to  settle  and  adjust  claims,  when  the  matter  was  presented 
to  him  for  settlement,  is  competent  against  the  company.3    Other- 
wise, if  the  admission  was  not  a  part  of  the  res  gestce  of  the  actual 
dealing  of  the  officer  or  agent  with  the  subject.4    Evidence  of  the 
agent's  declarations  of  his  opinion,  based  upon  past  occurences, 
is  not  to  be  received  as  an  admission  of  his  principals,  especially 
when  the  agent  was  not  a  party  to  the  occurrences ; 5  and  it  is  to 
be  excluded  even  where  the  agent  had  been  deputed  to  examine 
the  question  of  liability  of  the  principal.6    An  admission  is  to  be 
taken,  as  an  entirety,  of  the  fact  which  makes  for  the  one  side, 
with  the  qualifications  which  limit,  modify  or  destroy  its  effect, 
on  the  other.7 

25.  Defenses^ — Special  matters  of  defense,  including  false 
warranty  and  representations,  and  concealment,  must  be  pleaded 
or  cannot  be  proved,8  and  the  burden  is  on  defendants  to  prove 
them.9 

26.  —  false  representations  J] — The  burden  is  on  defendants  to 
show  the  untruthfulness  of  representations,  and  either  their  ma- 
teriality,10 or  actual  fraudulent  design  and  deceit  thereby.     The 
materiality  of  a  representation  is  to  be  presumed  from  the  fact  of 
its  having  been  made  in  answer  to  a  specific  question.11 

27.  — false  warranty.] — A  warranty  or  condition  not  in  the 


1  Home  Ins.  Co.  v.  Baltimore  Warehouse  Co.  93  U.  S.  (3  Otto),  527,  s.  c.  16  Am. 
Law  Res.  162,  169. 

2  Page  44  of  this  Vol. 

8  Northrup  v.  Miss.  Valley  Ins.  Co.  47  Mo.  435,  s.  o.  4  Am.  R.  337.     So  held  even 
of  a  general  promise  to  pay,  if  the  other  companies  did. 

4  Baptist  Church  v.  Brooklyn  Fire  Ins.  Co.  28  N.  Y.  153,  affi'g  23  How.  Pr.  448. 
6  Packet  Co.  v.  Clough,  20  Wall.  528. 
6  Insurance  Co.  v.  Mahone,  21  Wall.  157. 

I  Insurance  Co.  v.  Newton,  22  Wall.  32.     Thus,  where  proofs  of  death  showed 
that  the  death  was  by  suicide,  the  company's  admission  that  the  proofs  were  suffi- 
cient in  form,  coupled  with  the  objection  at  the  same  time  that  they  were  not  liable 
for  suicido,  are  to  bs  taken  together,  and  only  admit  death  in  a  mode  not  rendering1 
them  liable. 

8  Marine  Ins.  Co.  of  Alexandria  v.  Hodgson,  6  Cranch,  206 ;  Northrup  v.  Miss. 
Valley  Ins.  Co.  47  Mo.  435,  8.  c.  4  Am.  R.  337.   ., 

9  Piedmont  &  Arlington  Life  Insurance  Co.  v.  Ewing,  92  II.  S.  (2  Otto),  377; 
Trenton  Ins.  Co.  v.  Johnson,  24  N.  J.  L.  (4  Zab.)  576;  Elkin  v.  Janson,  13  M.  &  W. 
655;  Ins.  Co.  v.  Folsom,  18  Wall.  252. 

10  May  on  Ins.  193,  8  183  ;  N.  Y.  Life  Ins.  Co.  v.  Graham,  2  Duv.  (Ky.)  506. 

II  May  on  Ins.  194,  §§  185,  186. 


ACTIONS  ON  CONTRACTS   OF  INSURANCE.  493 

policy  cannot  be  proved  by  parol.1  A  variance  between  an  alle- 
gation of  false  warranty  and  its  proof,  if  not  substantial,  will  be 
disregarded.2  Neither  materiality  of  the  warranty,  fraudulent 
intent,  nor  that  the  insurer  acted  on  it,  need  be  showiu3 

28.  —  concealment.'] — The  application  is  not  evidence,  as  that 
plaintiff   did   not   communicate  all  he  knew   on    subjects   not 
referred  to   in  it.4     But   slight  evidence  of  non-communication 
is  enough,  in  the  first  instance.5    Knowledge  by  the  concealer 
is  essential ;  but  for  this   purpose  an  insurer  is  conclusively 
presumed  to  know  what  a  man  of  ordinary  intelligence  ought  to 
know,6  and  what  his  agent  at  the  time  knew.7     The  jury  may 
also  infer  knowledge  as  a  matter  of  fact,  from  probabilities,  such 
as  the  situation  of  the  person  and  the  character  of  the  fact.8 

The  insurers  are  presumed  to  be  skilled  in  their  business,  and 
to  know  (and  therefore  need  no  communication  of)  those  general 
facts,  geographical,  political,  and  others,  which  are  open  to  the 
public,  and  may  be  known  to  all  who  are  interested  to  inquire.9 
A  newspaper  taken  by  them  is  competent  as  raising  an  inference 
that  they  had  knowledge  of  information,  affecting  the  business, 
contained  in  it.10 

29.  —  materiality  to  the  risk.] — On  the  question  whether  a 
fact,  representation  or  concealment  was  material  to  the  risk,  if  it 
be  on  a  point  of  common  experience,  not  requiring  special  knowl- 
edge,— as,  for  instance,  whether  a  change  in  the  occupation  of  a 
dwelling  altered  the  risk — the  opinions  of  witnesses  are  not  com- 
petent."   If  it  be  a  matter  requiring  special  knowledge  or  skill, 
the  opinions  of  skilled  witnesses  are  competent.13    But  in  either 
class  of  cases  the  actual  usage  of  insurance  companies  generally, 
to  charge  a  greater  or  less  rate  (as  distinguished  from  a  custom  of 
the  particular  company  not  shown  to  have  been  communicated  to 
the  insured),  is  competent,13  and  may  be  proved  by  the  testimony 
of  experts  in  insurance,14  stating  the  usage  as  a  fact,15  as  distin- 
guished from  stating  what  would  or  would  not  be  considered  an 
insurable  subject  or  a  greater  or  less  risk.16    For  the  purpose  of 


1  Alston  v.  Mechanics'  Mut.  Ins.  Co.  4  Hill,  329,  and  cases  cited. 

*  McCornber  v.  Granite  Ins.  Co.  15  N.  Y.  495. 

*  Brennan  v.  Security  Life  Ins.  Co.  4  Daly,  296. 

4  Ins.  Co.  v.  Folsom,  8  Blatcht  170;  9  Id.  202;  18  Wall.  252. 

5  Elkin  v.  Janson,  13  Mees.  &  W.  655,  663;  Steph.  Di".  Ev.  100 

6  May  on  Ins.  211,  §  202. 

7  Id. 

8  Id.  213,  §202. 

9  May  on  Ins.  217,  §  207 ;  De  Longuemere  v.  N.  Y.  Fire  Ina.  Co.  10  Johns.  120. 

10  Green  v.  Merchants'  Ins.  Co.  10  Pick.  402. 

11  Luce  v.  Dorchester  Mut.  Fire  LJLS.  Co.  105  Mass.  297,  s.  c.  7  Am.  R.  522;  Hart- 
ford Protective  Ins.  Co.  v.  Harmer,  2  Ohio  St.  452. 

12  See  Leitch  v.  Atlantic  Mut.  Ins.  Co.  66  N.  Y.  100. 

13  Luce  v.  Dorchester  Mut.  Fire  Ins.  Co.  105  Mass.  297,  s,  o.  7  Am  R.  522. 

14  Id. ;  Hobby  v.  Dana,  17  Barb.  111. 

15  Luce  v.  Dorchester  Ins.  Co.  (above). 

11  Rawls  v.  American  Mut.  Life  Ins.  Co.  27  N.  Y.  282,  affi'g  30  Barb.  357;  Jefier- 


494        ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

determining  the  question  of  materiality,  it  is  not  competent  to 
ask  a  witness,  even  one  who  acted  in  the  transaction,  whether  he 
considered  the  fact  material ;  or  whether  he  would  have  taken 
the  risk  had  he  known  the  fact ;  or  what  influence  the  fact  would 
have  on  the  mind  of  an  insurer.1  But  one  to  whom  a  material 
representation  was  made  may  be  asked  what  effect  it  actually  had 
on  his  mind  in  the  transaction.2 

To  qualify  a  witness  to  express  opinion,  it  is  not  enough  that 
he  is  conversant  with  insurance  business  in  general ;  but  he  should 
be  shown  to  have  special  knowledge  upon  the  particular  topicnn 
question.3 

Testimony  given  by  experts,  and  especially  by  insurers,  when 
necessary  on  the  question  of  materiality,  because  without  it  the 
fact  is  not  sufficiently  obvious  to  sustain  a  decision,  is  to  be 
treated  like  the  testimony  of  credible  witnesses  upon  any  other 
fact ;  and  is  controlling  if  there  is  no  conflict.  It  is  only  where 
there  is  a  difference  o?  opinion  that  the  question  is  one  for  the 
jury.4 

30.  —  over-valuation.'] — Evidence  of  over-valuation  in  the  pol- 
icy,5 or  in  the  proofs  of  loss,6  without  evidence  of  bad  faith,  does 
not  bar  the  action.7    Evidence  that  other  dealers  in  the  same 
trade  and  place  usually  had  a  much  less  stock,  is  not  competent 
evidence  of  over-statement  or  valuation.8    The  usual  proportion 
of  stock  to  annual  sales  may  be  proved,  for  the  purpose  of  rais- 
ing an  inference,  by  comparison  with  the  annual  sales  of  the  in- 
sured, that  his  statement  of  amount  of  stock  was  grossly  exag- 
gerated.9   This  should  be  proved  by  merchants  of  the  same  trade 
and  place ; 10  those  of  other  places,  different  in  size  and  business 
usages,  are  not  competent  on  the  point.11 

31.  Charge  of  Crime.'] — Where  the  issue  requires  the  defend- 


eon  Ins.  Co.  v.  Cotheal,  7  Wend.  72.     Compare  Kern  v.  South  St.  Louis  Mut.  Ins. 
Co.  40  Mo.  19,  26;  Schenck  v.  Mercer  Co.  Ins.  Co.  24  N.  J.  L.  (4  Zabr.)  447,  451. 

1  Jefferson  Ins.  Co.  v.  Cotheal  (above);  Rawls  v.  Am.  Mut.  Life  Ins.  Co.  (above); 
Walsh  v.  ./Etna  Life  Ins.  Co.  30  Iowa,  133,  s.  c.  6  Am.  R.  664  ;  and  see  Atlantic  Dock 
Co.  v.  Libby,  45  N.  Y.  499.     Contra,   Hawes  v.  New  England,  &c.  Ins.  Co.  2  Curt. 
C.  Ct.  229 ;  Roberts  v.  Continental  In«.  Co.  3  Law  &  Eq.  R.  767  ;  Hartman  v.  Key- 
stone Ins.  Co.  9  Harr.  (Penn.)466,  478.    Compare,  on  this  subject,  5  Am.  L.  Rev.  231. 

2  Valton  v.  National  Loan  Fund  Assurance  Society,  4  Abb.  Ct.  App.  Dec.  437, 
rev's  17  Abb.  Pr.  268. 

3  Schmidt  v.  Peoria  Marine  Ins.  Co.  41  HI.  295,  299 ;  Nelson  v.  Sun  Mut.  Ins.  Co. 
71  N.  Y.  453,  affi'g  40  Super.  Ct.  (J.  &  S.)  417. 

4  Leitch  v.  Atlantic  Mut.  Ins.  Co.  66  N.  Y.  100. 

s  Huth  v.  New  York  Mutual  Ins.  Co.  8  Bosw.  538. 

8  Owens  v.  Holland  Purchase  Ins.  Co.  56  N.  Y.  565,  affi'g  1  Supm,  Ct.  (T.  A  C.) 
285. 

I  Franklin  Fire  Ins.  Co.  v.  Vaughan,  92  U.  S.  (2  Otto),  516. 

8  Phoanix  Fire  Ins.  Co.  v.  Philip,  13  Wend.  •€! ;  Townsend  v.  Merchants'  Ins.  Co. 
86  Super.  Ct.  (4  J.  &  S.)  172. 

9  Ins.  Co.  v.  Weide,  11  Wall.  440. 

10  Id. 

II  Jones  v.  Mechanics'  Fire  Ins.  Co.  36  N.  J.  (7  Vroom),  29,  s.  c.  13  Am.  R.  405. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  495 

ant  to  establish,  a  charge  of  crime, — such  as  arson,  in  burning  the 
thing  insured ;  or  perjury,  in  swearing  to  false  preliminary 
proofs, — the  rule  followed  by  the  greater  number  01  American 
authorities  is  that  proof  beyond  a  reasonable  doubt,  such  as  is  re- 
quired in  criminal  cases,  is  not  necessary.1  "Whether  a  mere  pre- 
ponderance of  evidence  is  enough,2 — or  whether  the  jury  should 
be  instructed  to  consider  the  gravity  of  the  charge,  and  the  legal 
presumption  of  innocence,8  and  that  the  legal  evidence  must  be 
such  as  taken  together  clearly  satisfies  them,4 — is  still  disputed.5  ' 


1  So  held  in  Kentucky,  (^Etna  Ins.  Co.  v.  Johnson,  11  Bush.  687,  s.  c.  21  Am.  R. 
223);  Louisiana,  (Hoffman  v.  Western  Mar.  &  F.  Ins.  Co.  1  La.  Ann.  216,219; 
Wightman  v.  The  Same,  8  Rob.  La.  442) ;  Massachusetts,  (Schmidt  v.  N.  Y.  Union 
Hut.  F.  Ins.  Co.  1  Gray,  529,  534) ;  Missouri,  (Rothschild  v.  Am.  Cent.  Ins.  Co.  62  Mo. 
8?>6;  Marshall  v.  Thames  Fire  Ins.  Co.  43  Id.  586);    Wisconsin,  (Washington  Union 
Ins.  Co.  v.  Wilson,  7  Wise.  169;  Blaeser  V.Milwaukee  Mech.  Mut.  Ins.  Co.  37 Id.  31, 
B.  c.  19  Am.  II.  747);  and  by  Dnxox,  J.,  in  the  U.  S.  Cire.  Court,  Scott  v.  Home  Ins. 
Co.  1  Dill.  C.  Ct.  105 ;  see  also  Huchberger  v.  Merchants'  Fire  Ins.  Co.  4  Bis*.  C.  Ct. 
265;  s.  P.  in  other  issues ;  Michigan,  (Walking  v.  Wallace  [Fraud],  19  Mich.  57); 
New  Hampshire,  (Mathews  v.  Huntley  [Slander],  9  N.  H.   150;  Folsom  v.  Brown 
[Slander],  5  Fost.  N.  H.  122);  North  Carolina,  (Kincndo  v.  Bradshawe  [Slander],  3 
Hawks,  63);   Wisconsin,  (Wright  v.  Hardy  [Fatal  Malpractice],  22  Wise.  348). 

Contra,  and  requiring  proof  beyond  reasonable  doubt,  are  decisions  in  England, 
(Thurtell  v.  Beaumont,  1  Bing.  339;  Steph.  Dig.  Ev.  98);  Illinois,  (McConnell  v. 
Delaware,  <fec.  Ins.  Co.  18111.  228);  and  Ohio,  (Lexington  Ins.  Co.  v.  Paver,  16  Ohio 
St.  324).  So  in  other  civil  actions,  where  the  issue  involves  a  charge  of  crime,  <fec., 
the  same  and  some  other  courts  require  proof  beyond  reasonable  doubt.  Indiana, 
(Wonderly  v.  Nokes  [Slander],  8  Blackf.  589.  Compare  Bissel  v.  West,  35  Ind.  54); 
Iowa,  (Ellis  v.  Lindley  [Slander],  38  Iowa,  461 ;  Fountain  v.  West  [Libel],  23  Id.  1); 
Missouri,  (Polston  v.  See  [Slander],  54  Mo.  291);  New  York,  (Clark  v.  Dibble  [Slan- 
der], 16  Wend.  601;  Hopkins  v.  Smith  [Slander],  3  Barb.  692,  602);  New  Jersey, 
(Berckmans  v.  Berckmans  [Charge  of  Adultery  in  Divorce],  17  N.  J.  Eq.  453;  Taylor 
v.  Morris  [Usury],  22  Id.  606) ;  Ohio,  (Strader  v.  Mulvane  [Slander],  17  Ohio,  624); 
Pennsylvania,  (Steinman  v.  McWiliiams  [Slander],  6  Penn.  St.  170;  Gorman  v.  Sut- 
ton,  32  Id.  247);  Tennessee,  (Coulter  v.  Stewart  [Slander],  2  Yerg.  225) ;  and  Wis- 
consin, (Freeman  v.  Freeman  [Charge  of  Adultery  in  Divorce],  31  Wise.  235.  Com- 
pare Warner  v.  Commonwealth,  2  Va.  Cas.  105);  and  in  the  Supreme  Court  of  the 
United  States,  in  debt  for  a  statute  penalty.  Chaffee  v.  U.  S.  18  Wall.  616. 

2  As  is  held  in  Alabama,  (Spruil  v.  Cooper  [Slander],  16  Ala.  791);   California, 
(Ford  v.  Chambers  [Fraud],  19  Cal.  143);   Colorado,  (Downing  v.  Brown  [Justifica- 
tion in  Libel],  3  Col.  591);  Connecticut,  (Munson  v.   Atwood  [Felonious  Taking],  30 
Conn.  102);   Georgia,  (Wright  v.  Hicks  [Adulterine  Bastardy],  12  Geo.  155);  Maine, 
(Knowles  v.  Scribner  [Bastardy],  57  Me.  497);  Missouri,  (Rothschild  v.  American 
Cent.  Ins.  Co.  [Insurance],  62  Mo.  356 ;  Marshall  v.  Thames  Fire  Ins.  Co.  43  Id.  686); 
and  Wisconsin,  (Blaeser  v.  Milwaukee  Mech.  Mut.  Ins.  Co.  87  Wise.  31,  s.  c.  19  Am. 
R.  747);  and  see  10  Am.  Law  Rev.  N.  S.  642. 

3  As  held  in  Kane  v.  Hibernia  Ins.  Co.  10  Vroom  N.  J.  697,  s.  c.  23  Am.  R.  239 ; 
and  Brandish  v.  Bliss  [Action  for  Burning  Plaintiffs  Barn],  35  Vt.  326. 

4  As  held  in  Kane  v.  Uibernia  Ins.  Co.  (above),  and  Scott  v.  Home  Ins.  Co.  1 
Dill.  C.  Ct.  106. 

6  The  reasons  assigned  for  following  mere  preponderance  of  probabilities  are,  1st, 
that  this  is  the  rule  in  all  civil  issues;  and,  SJd,  that  the  issue  is  really  not  a  question 
of  criuie,  but  of  dollars  and  cents.  To  this  it  may  be  replied  that  there  is  no  such 
universal  rule  in  civil  cases.  It  has  been  a  general  (but  not  universal),  rule  tor  ju- 
ries, in  civil  cases  at  common  law,  never  a  general  rule  for  the  chancellor  nor  for  ju- 
ries ir.  feigned  issues.  Again,  how  ouijht  the  fact  that  a  question  of  dollars  and  cents 
is  presented,  to  affect  the  rule  ?  If  plaintiff  makes  a  charge  of  crime  for  the  sake  of 
recovering  money,  or  the  defendant  sets  up  a  charge  of  crime  to  exonerate  him  from 
an  otherwise  admitted  obligation,  ought  either  to  succeed  on  evidence  that  would  be 
.  inadequate  if  the  State  undertake  to  investigate  ?  On  the  other  hand,  ought  one  to  ba 


496  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

But  in  a  doubtful  case  evidence  of  his  previous  successive  losses, 
and  collection  of  insurance  moneys,  may  be  competent  as  tending 
to  show  that  the  loss  now  in  question  was  not  accidental.1 

A  defense  of  this  nature  does  not  put  character  in  issue  ; 3  and 
plaintiffs  general  character  not  having  been  impeached,  evidence 
of  his  good  character  is  not  admissible  in  his  own  behalf.3  Evi- 
dence of  another  firing  in  the  same  town,  at  the  same  time,  is 
not  alone  relevant  as  tending  to  prove  that  it  was  set  by  a 
stranger.4 

II. 'RULES'  PECULIARLY   APPLICABLE   TO   MARINE   INSURANCE 

32.  Interest^ — The    registry  is  competent5  but  not  conclu- 
sive °  evidence  of  ownership.     A  copy  of  a  register  from  the 
proper  department  of  the  United  States  where  the  original  is  re- 
quired by  the  act  of  Congress  to  be  filed,  duly  certified,  is  proof 
of  the  register ;  and  proof  that  there  was  a  register,  with  very 
slight  evidence  that  it  was  on  board  during  the  voyage,  is  prima 
facie  proof  that  the  vessel  was  duly  documented.7 

Interest  in  freight  is  proved  by  showing  an  interest  in  the 
ship,  founding  an  interest  in  its  freight,  and  then  a  shipment  or 
other  act  or  contract  sufficient  to  give  that  interest  in  the  partic- 
ular freight  in  question.8 

33.  Warranties.'} — In  general  the  performance  of  an  express 
warranty  in  marine  insurance  is  said  to  be  a  condition  precedent, 
to  be  averred  and  proved  by  plaintiff  ; 9  but  if  no  question  arises 
on  the  warranty, — as  where  there  is  a  warranty  "  free  from  aver- 
age," and  no  claim  as  to  average  is  made, — or  where  the  warranty 
is  in  terms  negative, — such  as  that  certain  goods  shall  not  be  car- 
ried,— affirmative'proo^  of  performance  is  not  necessary  unless 
the  evidence  indicates  a  breach,10  or  a  breach  is  averred  by  de- 
fendant. 

34.  Seaworthiness.'] — "Where  there  is  an  implied  warranty  of 

made  to  respond  in  damages  for  expressing  his  belief  in  a  charge  of  crime,  because 
the  evidence  on  which  he  acted  proves  insufficient  to  convict?  Jt  seems  difficult  to 
justify  the  proposition  that  the  jury  are  to  proceed  on  the  preponderance  of  testimony, 
disregarding  the  presumption  of  innocence.  Compare  2  Whart.  Ev.  §  1245.  For 
other  cases  of  proof  beyond  reasonable  doubt  required  in  civil  actions,  see  Chaffee  v. 
U.  S.  18  Wall.  545;  The  Mohler,  21  Id.  230;  and  page  234  of  this  voL  n.  2. 

1  Rex  v.  Gray,  4  Fost.  &  F.  1102;  Steph.  Dig.  Ev.  19. 

8  Schmidt  v.  N.  Y.  <fcc.  Ins.  Co.  1  Gray,  629. 

3  Fowler  v.  JEtna  Fire  Ins.  Co.  6  Cow.  673. 

4  Faucett  v.  Nichols,  4  N.  Y.  Sup.  Ct.  597. 

5  2  Pars.  Mar.  Ins.  512.    Contra,  2  Phil.  657. 

6  Draper  v.  Commercial  Ins.  Co.  21  N.  Y.  378,  rev'g  4  Duer,  234. 

1  Pacific  Ins.  Co.  v.  Catlett,  4  Wend.  75,  affi'g  1  Id.  561.  Compare  R.  S.  of  U.  S. 
§§  882,  4131-4195 ;  Catlett  v.  Pacific  Ins.  Co.  1  Paine,  594 ;  Code  Civ.  Pro.  §§  944, 
945. 

8  2  Pars.  Mar.  Ins.  515. 

9  2  Pars.  Mar.  Ins.  510, ;  Craig  v.  U.  S.  Ins.  Co.  1  Pet.  C.  Ct.  410 ;  Wilson  v.  Hamp- 
den,  Ac.  Ins.  Co.  4  R.  I.  159. 

10  This,  at  least,  is  the  opinion  of  Prof.  Parsons.     2  Pars.  Mar.  Ins.  511. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  497 

seaworthiness,  parol  evidence  of  the  nature  of  the  vessel,  &c.— 
such  as  that  she  was  known  to  the  insurers  to  be  not  constructed 
for  the  kind  of  navigation  for  which  they  insured  her — is  compe- 
tent for  the  purpose  of  showing  that  such  degree  of  seaworthi- 
ness as  she  was  capable  of  would  satisfy  the  policy.1 

It  is  held  by  high  authority  that  on  a  marine  policy,2  the 
insured  must  aver  and  prove  that  the  ship  was  seaworthy  when 
the  risk  commenced  ;3  but  slight  and  general  evidence,  if  not  con- 
tradicted, is  sufficient,  and  shifts  the  burden  upon  the  insurer.4 
Evidence  that  inability  of  the  ship  to  perform  its  voyage  became 
evident  in  port,5  or  soon  after  leaving  port,  and  that  it  foundered 
without  stress  of  weather,  or  other  apparent  and  adequate  cause 
of  injury,  raises  a  legal  but  not  conclusive  presumption  of  unsea- 
worthiness.6 And  it  is  immaterial  whether  these  iacts  are  shown 
by  plaintiff's  or  defendant's  evidence.7  The  presumption  thus 
raised  is  rebutted  by  proof  that  the  ship  was  seaworthy  on  leaving 
port,  and  that  it  encountered  marine  perils  such  as  might  disable 
a  staunch  and  well-manned  vessel.  To  carry  the  question  to  the 
jury,  it  is  enough  that  there  is  other  evidence  of  the  ship's  con- 
dition and  of  cause  of  loss,  than  the  mere  fact  of  sinking  in 
smooth  water,  tending  to  show  seaworthiness  and  some  peril  in- 
sured against ;  and  it  is  not  necessary  that  the  jury  be  able  to 
determine  the  particular  cause  of  loss  if  it  be  within  those  cov- 
ered by  the  policy.8  The  jpresumption  of  unseaworthiness,  on 
the  other  hand,  is  much  strengthened  by  the  length  of  time  that 
the  vessel  has  been  at  sea,  and  by  former  manifestations  of  weak- 
ness and  decay  by  leaking  or  otherwise.9  There  is  no  presump- 
tion that  defects  found  to  exist  in  the  hull  during  the  voyage 
were  produced  by  a  peril  of  the  sea.  The  burden  is  on  the  as- 
sured to  prove  this.10  Evidence  of  the  performance  of  other  voy- 
ages is  competent  only  as  they  were  such,  in  point  of  time,  &c., 
as  to  raise  just  inferences  as  to  her  actual  condition  at  the  time 
in  question.11 

What  is  a  competent  crew  for  the  voyage ; — at  what  time 


*  Barges  v.  Wickham,  3  B.  <fe  S.  669,  69 1 ;  Powell  Ev.  430  ;  Rose.  N.  P.  412. 

I  Compare  paragraph  10. 

8  Moses  v.  Sun  Mutual  Ins.  Co.  1  Duer,  159.  Contra,  Paddock  v.  Franklin  Ins. 
Co.  11  Pick.  227  (Shaw,  Ch.  J.)  ;  Rose.  N.  P.  411,  and  cases  cited. 

4  Moses  v.  Sun  Mutual  Ins.  Co.  1  Duer,  159 ;  Martin  v.  Fishing  Ins.  Co.  20  Pick. 
889,  396. 

6  Anderson  v.  Morice,  L.  R.  10  C.  P.  58,  s.  o.  11  Moats  Eng.  252. 

«  Walsh  y.  Washington  Ins.  Co.  32  N.  Y.  427,  affi'g  3  Rob.  202 ;  Wright  v.  Orient 
Mut.  Ins.  Co.  6  Bosw.  269;  Davidson  v.  Burnand,  L.^R.  4  C.  P.  117.  Contra,  Pickup 
v.  Thames,  «fec.  Ins.  Co.  L.  R.  3  Q.  B.  Div.  594.  The  controversy  is  whether  there 
ia  a  shifting  of  the  burden  of  proof  or  only  ground  for  an  inference  by  the  jury. 

7  Paddock  v.  Franklin  Ins.  Co.  (above). 

8  Anderson  v.  Morice,  L.  R.  10  C.  P.  58,  8.  o.  11  Moats  Eng.  252. 
'  Paddock  v.  Franklin  Ins.  Co.  (above). 

10  Bullard  v.  Roger  Williams'  Ins.  Co.  1  Curt  C.  Ct  148 ;  Talcot  v.  Commercial 
Ins.  Co.  2  Johns.  124. 

II  The  Vincennes,  3  Ware.  171. 


4:98  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

they  should  be  on  board; — what  is  pilot  ground ; — and  what  the 
usage  of  trade,  as  to  the  master  and  crew  being  on  board,  when 
the  ship  breaks  ground  for  the  voyage  ; — are  questions  of  fact  for 
the  jury,  admitting  of  expert  testimony.1  Unusual  prolongation 
of  voyage  is  relevant,  but  not  alone  sufficient,  evidence  of  inade- 
quacy of  crew.2 

To  testify  directly  to  the  question  of  seaworthiness  as  a  fact, 
the  witness  must  be  an  expert.8  A  shipwright  may  give  his 
opinion,  even  on  facts  stated  by  others.4 

Seaworthiness  is  conclusively  shown  by  an  admission  in  the 
policy.5 

35.  Rating.~\ — The  proof  of  the  rating  of  a  vessel  consists, 
not  only  of  testimony  as  to  her  construction,  materials,  age,  &c., 
but  also  of  the  opinion  of  experts,  such  as  ship-builders  and  ship- 
masters and  others  familiar  with  the  subject.     The  opinion  of  the 
witnesses,  as  to  the  rating  of  a  vessel,  is  but  the  expression  of  the 
result  of  their  examination  of  her.      The  rating  by  official  in- 
spectors, with  a  view  to  an  entry  in  the  books  of  a  company,  is 
evidence  of  the  same  character.6 

36.  Shipmentl\ — The  shipment  of  goods   insured  is  usually- 
proved  by  the  captain  or  any  eye  witness.     If  the  captain  be  dead, 
the  production  of  the  bill  of  lading  and  proof  of  his  handwriting 
is  evidence  of  the  shipment  as  well  as  of  the  interest ;  but  not  if 
he  added  "  contents  unknown." 7    A  witness  to  the  loading  of  the 
goods  may  refresh  his  memory  by  inspection  of  the  bill  of  par- 
cels, and  the  receipt  given  by  the  drayman  who  delivered  them 
on  board  the  vessel.8 

On  a  valued  marine  policy,  plaintiff  need  not  prove  that  the 
whole  property  was  shipped,  but  it  is  enough  to  prove  a  substan- 
tial interest  in  a  subject  corresponding  to  and  satisfying  the 
description  in  the  policy.  It  then  devolves  on  the  insurer  to 


1  M'Lanahan  v.  Universal  IDS.  Co.  1  Pet.  170. 

2  The  Gentleman,  Olc.  110. 

8  Marcy  v.  Sun  Ins.  Co.  11  La.  Ann.  748. 

4  Thornton  v.  The  Royal  Exch.  Ass.  Co.  1  Peake,  26  ;  Rose.  N.  P.  412. 

6  Rose.  N.  P.  412  ;  Parfitt  v.  Thompson,  13  M.  <fe  W.  392. 

*  Insurance  Companies  v.  Wright,  1  Wall.  456.  In  the  case  of  a  vessel  in  one 
port,  insured  at  another,  the  rating  at  the  former  is  not  the  criterion,  but  is  compe- 
tent with  other  evidence  tending  to  prove  her  quality  and  condition.  Id. 

1  Rose.  N.  P.  408 ;  Haddow  v.  Parry,  8  Taunt.  303.  Nor  if  he  be  alive.  Dick- 
son  v.  Lodge,  1  Stark.  226.  Contra,  Wolf  v.  National,  «fec.  Ins.  Co.  20  La.  Ann. 
583. 

8  Sturm  v.  Atlantic  Mut.  Ins.  Co.  38  Super.  Ct.  (6  J.  <fe  S.)  281.  Duplicate  re- 
ceipts for  the  cases  of  goods,  given  and  signed  by  the  officer  of  the  vessel  who  received 
them,  which  had  been,  at  the  time,  compared  with  the  cargo-book,  lost  with  the 
ship,  are  admissible  in  evidence  to  prove  the  receipt  of  the  cases  though  not  their  con- 
tents. Id.  See,  also,  pp.  319-326  of  this  vol.  A  general  statement  by  the  plaintiff, 
admitted  in  evidence,  to  the  effect  that  he  had  the  goods  put  on  board  the  ship, 
though  not  evidence  of  the  actual  shipment,  is  not  ground  for  reversal  on  appeal 
where  other  competent  evidence  was  afterward  given  of  the  receipt  of  the  merchan- 
dise on  board.  Id. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  499 

show  that,  either  by  mistake  or  design,  the  whole  of  the  property 
insured  was  not  put  on  board,  and  thus  entitle  himself  to  a  pro- 
portionate deduction  from  the  valuation  of  the  policy.1 

That  a  particular  line  of  vessels  was  exclusively  intended  as 
the  course  of  shipment  cannot  be  shown  by  parol,  where  the  lan- 
guage of  the  policy  is  general.2 

37.  The  voyage.~\  — In  insurance  on  a  voyage,  there  must  be 
some  evidence  of  the  ship  having  left  port.8    The  time  may  be 
proved  by  the  shipping  list  at  Lloyd's,4  or  by  the  log-book  of  the 
commander  of  the  convoy  under  which  she  is  proved  to  have 
sailed.5    If  the  policy  designates  the  termini,  oral  evidence  is  not 
competent  to  substitute  others,6  but  if  a  designation  of  terminus 
is  indefinite,  because  of  the  nature  of  the  terminus,7  or  of  the  voy- 
age and  trade  itself,8  oral  evidence  of  the  surrounding  circum- 
stances, and  of  usage,  is  competent.9    So  also  of  an  indefinite 
period  of  time  ;10  but  a  definite  limit  cannot  be  varied  by  parol.u 
On  a  question  of  reasonableness  of  delay,  the  facts  should  be 
proved ;  the  letters  of  the  plaintiff's  agents,  to  him  explaining 
the  causes,  are  not  competent  in  his  favor,  because  not  part  of  the 
res  gcstcB™ 

38.  Wealher.~] — The  official  registries  of  a  signal  service  or 
coast-guard  office,  noting  the  state  and  changes  of  weather,  kept 
pursuant  to  the  requirement  of  law,  are  competent  on  production, 
with  proof  that  they  come  from  the  proper  official  custody,  and 
the  oath  of  the  officer  keeping  them  is  unnecessary.13 

39.  Loss.~] — On  evidence  that  the  ship  sailed  apparently  in  a 
seaworthy  condition,  and  has  never  been  heard  from,  the  law 
presumes  that  the  loss  was  occasioned  by  a  peril  of  the  sea.14    It 
is  prima  facie  enough  to  prove  that  she  has  not  been  heard  of 
in  the  country  whence  she  sailed,  without  calling  witnesses  from 
the  port  of  destination  to  prove  that  she  never  arrived  there,15  or 
even  members  of  crew  who  were  reported  to  be  saved  from  the 


1  Atlantic  Ina.  Co.  v.  Lunar,  1  Sandf.  Ch.  91,  and  cases  cited. 

*  N.  Y.  Fire  Marine  Ins.  Co.  v.  Roberts,  4  Duer,  141.     Compare  Weston  v.  Ernes, 
1  Taunt.  115. 

*  Cohen  v.  Hinctley,  2  Camp.  61. 

*  Macintosh  v.  Marshall,  11  M.  &  W.  116,  125;  1  GreenL  Ev.  13  ed.  236,  §  198. 

*  D'Israeli  v.  Jowett,  1  Esp.  427 ;  Rose.  N.  P.  410. 

6  Kaines  v.  Knightly,  Skin.  64. 

7  Reed  v.  Ins.  Co.  95  U.  S.  (5  Otto),  23,  30. 

8  Vallnnce  v.  Dewar,  1  Campb.  603,  608. 

*  Reed  v.  Ins.  Co.  (above). 

10  Chaurand  v.  Angerstein,  3*eake,  43. 
.     »  Rose.  N.  P.  26. 

11  Langhorn  v.  Allnutt,  4  Taunton,  511. 

13  The  Catherine  Maria,   L.  R.  1  Adm.  <fe  Ecc.  63.     And  see  De  Armond  r. 
Neasmith,  82  Mich.  231 ;  1  Whart.  §  689  ;  1  Greenl.  §  483.     See  also,  The  Maria  daa 
Dorias,  32  L.  J.  Pr.  M.  &  P.  163 ;  N.  Y.  Code  Civ.  Pro.  $  944,  and  pp.  97, 98,  of  this  voL 

14  Paddock  v.  Franklin  Ina.  Co.  (above);  Rose.  N.  P.  417. 
"Id. 


500  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

wreck.1  In  respect  to  the  length  of  time  from  which  this  pre> 
sumption  is  to  arise,  each  case  is  to  depend  upon  its  own  circum* 
stances.3  In  the  absence  of  anything  to  indicate  a  special  peril, 
the  usual  and  not  the  utmost  period  of  the  voyage  is  to  be  con- 
sidered.3 Evidence  that  when  last  seen  the  ship  parted  from 
convoy  in  a  storm,  will  sustain  an  inference  that  she  perished  in 
that  storm.4  Evidence  that  after  the  time  which  plaintiff  now 
assigns  as  the  time  of  loss,  he  procured  further  insurance5  or 
assumed  to  assign  his  interest  in  the  ship,6  is  not  conclusive 
against  him.  The  protest  of  a  mariner,  even  though  not  com- 
petent to  prove  loss,  may  be  admissible  to  fix  the  time.7  If  loss 
of  freight  or  passage  money  is  in  issue,  the  burden  is  on  plaintiff 
to  give  some  evidence  that  it  would  have  been  earned  but  for  the 
casualty,8  and  could  not  be  earned  because  of  the  casualty.9 

Protest,  survey,10  and  log-book  are  not  competent  in  favor  of 
the  insured,11  unless  authenticated  by  the  testimony,12  or  called  for 
by  the  adverse  party.13  Certificates  under  seal,  by  United  States 
consuls,  of  copies  of  their  official  documents,  are  competent  in 
the  courts  of  the  United  States.14 

Experienced  navigators,  as  well  as  shipwrights,  are  competent 
to  express  opinion  on  questions  involving  nautical  skill,  as  to  the 
nature  and  ordinary  effects  of  the  perils  to  which  a  marine  loss  is 
attributed.13 

40.  Barratry.] — To  establish  barratry  mere  negligence  is  not 
enough,  but  proof  of  a  wrongful  act  willfully  done  by  the 
master,  with  knowledge  of  its  wrongfulness  and  constituting  a 
breach  of  his  duty,  injurious  to  the  freighters  and  ship-owners, 
is  sufficient,  although  the  master  derived  no  benefit  therefrom.1* 


1  Koster  v.  Reed,  6  B.  &  C.  19. 

8  Gordon  v.  Bowne,  2  Johns.  150;  Oppenheim  v.  De  Wolf,  3  Sandf.  Ch.  671.    On 
this  subject,  see  p.  74  of  this  voL 
8  Brown  v.  Neilson,  1  Cai.  525. 

4  Watson  v.  King,  4  Camp.  272. 

5  Brown  v.  Neilson,  1  Cai.  525. 

8  Bunten  v.  Orient  Ins.  Co.  1  Abb.  Ct.  App.  Dec.  257. 

1  Ruan  v.  Gardner,  1  Wash.  C.  Ct.  145.     Compare  Miller  v.  South  Carolina  Ins. 
Co.  2  M'Cord,  336. 

8  Ogden  v.  N.  Y.  Mut.  Ins.  Co.  4  Bosw.  447. 

9  Id. ;  Kinsman  v.  N.  Y.  Mutual  Ins.  Co.  5  Bosw.  460. 

10  The  survey  is  not  essential     Bentaloe  v.  Pratt,  Wall.  C.  Ct.  68 ;    Robinson  v. 
Clifford,  2  Wash.  C.  Ct.  1. 

11  Except  to  show  the  fact  that  they  were  made.     Watson  v.  Ins.  Co.  of  N.  A.  2 
Wash.  C.  Ct.  152.     Compare  Hathaway  v.  Sun  Mut.  Ins.  Co.  8  Bosw.  33. 

12  2  Pars.  Mar.  Ins.  520;  Howard  v.  Orient  Mut.  Ins.  Co.  2  Robt.  539. 

13  Saltus  v.  Com.  Ins.  Co.  10  Johns.  487. 
"  U.  S.  R.  S.  §§  896,  1707. 

15  Walsh  y.  Washington  Ins.  Co.  32  N.  Y.  427,  affi'g  3  Robt.  202.     Compare  CinV 
cinnati  Ins.  Co.  v.  May,  20  Ohio,. 211,  223. 

»  Atkinson  v,  G.  Western  Ins.  Co.  65  N.  Y.  531 ;  4  Daly,  1. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  501 


HI.  RULES  PECULIARLY  APPLICABLE  TO  LlFE  AND  ACCIDENT 
INSURANCE. 

41.  Disease  /  Death.] — Death  cannot  be  proved  by  the  letters 
testamentary  or  of  administration.1     It  may  be  presumed  from 
absence  without  being  heard  from.2     It  may  be  proved  by  the 
official  books  of  the  boards  of  public  officers  having  cognizance 
of  deaths  and  casualties,  kept  pursuant  to  a  requirement  of  law  ;8 
and  their  production,  with  evidence  that  they  come  from  the 
proper  official  custody,  is  enough  without  the  oath  of  the  officer 
keeping  them.4     That  the  death  was  by  a  peril  within  the  policy 
may  be  inferred  from  circumstances.5 

Any  observer  of  'ordinary  understanding  is  competent  to 
testify  whether  one  appeared  sick  or  well.6  Witnesses  who  had 
known  the  subject  of  insurance  intimately  down  to  the  period 
when  the  policy  was  obtained,  are  competent  to  testify  to  his 
health  and  constitution.7 

Under  the  New  York  statute,8  by  which  communications  to 
physicians,  clergymen  and  attorneys  are  to  a  certain  extent  privil- 
edged,  a  medical  attendant  of  the  insured  is  not  competent 
against  objection  to  testify  to  information  acquired  as  necessary 
to  enable  him  to  prescribe,  whether  it  be  received  from  the 
patient  himself,  from  observation  or  from  the  statement  of  other 
attendants.  And  affirmative  evidence  that  it  was  acquired  for 
the  purpose  of  prescribing  is  not  necessary,  if  the  relationship 
raise  a  presumption.9 

42.  Suicide  and  insanity.'] — On  the  question  of  suicide,  the 
surrounding  circumstances,   and  the   declarations  of    deceased 
made  shortly  before  death  and  indicating  intent,  are  competent  ;10 
but  not  the  mere  fact  that  he  was  an  atheist.11    On  doubtful  facts, 
the  presumption  is  against  suicide.12 


I  Page  100  of  this  vol. ;  Thompson  v.  Donaldson,  3  Esp.  63. 
s  Page  73,  <fec.  of  this  vol. 

8  Wallace  v.  Cook,  5  Esp.  111. 

*  1  Whart  Ev.  §  639. 

•  See  Rose.  N.  P.  437;  Tisdale  v.  Conn.  Hut.  Life  Ins.  Co.  26  Iowa,  170,  176. 

8  Higbie  v.  Guardian  Mut.  Life  Ins.  Co.  53  N.  Y.  603;  Milton  v.  Rowland,  11 
Ala.  732.  Where  the  agent's  certificate  that  the  applicant  was  a  first-class  risk,  was 
appended  to  the  application  and  declaration,  and  the  latter  papers  were  referred  to 
as  part  of  the  plea, — held  that  the  certificate  was  competent  against  the  insurers. 
Ina.  Co.  v.  Mahone,  21  AVall.  152,  155. 

'  Rawls  v.'Am.  Mut.  Life  Ins.  Co.  27  N.  Y.  282,  affi'g  36  Barb.  357. 

8  2  N.  Y.  R.  S.  406 ;  Code  Civ.  Pro.  §  834. 

9  Edin^ton  v.  Mut.  Life  Ins.  Co.  67  N.  Y.  185,  rev*g  5  Hun,  1.    In  this  case  evi- 
dence as  to  the  health  or  disease  of  an  applicant  in  June  waa  held  incompetent  on  the 
question  of  his  condition  in  August  following,  but  this  is  a  questionable  ruling,  un- 
less justified  by  the  pleadings.     Mode  of  proving  disease  of  insured  not  disclosed  to 
company.     Mullincr  v.  Guardian  Mut.  Life  Ins.  Co.  1  Supm.  Ct.  (T.  ct  C.)  448. 

10  Continental  Ins.  Co.  v.  Delpeuch,  82  1'a.  St.  225.  See  also  Newton  v.  Mutual 
Benefit  Lro  Ins.  Co.  2  Dill.  154,  and  cases  cited. 

II  Gibson  v.  Am.  Mut.  Life  Ins.  Co.  37  N.  Y.  580. 

n  Mallory  v.  Traveler's  Ins.  Co.  47  N.  Y.  52.     Evidence  that  the  deceased  retired 


502  ACTIONS  ON  CONTRACTS  OF  INSURANCE. 

Self-destruction  being  shown,  there  is  no  presumption  of  law 
that  it  was  caused  by  insanity.1  The  burden  is  on  plaintiff  to 
show  that  the  act  was  in  consequence  of  insanity,  and  that  the 
inind  of  the  deceased  was  so  far  deranged  as  to  have  made  him  in- 
capable of  using  a  rational  judgment  in  regard  to  the  act  which 
he  was  committing.2 

The  testimony  of  persons  not  experts,  as  to  the  conduct,  man- 
ner and  appearance  of  the  subject,  and  the  impressions  thereby 
made  on  them  (within  limits  already  stated),  is  competent  to 
go  to  the  jury  on  the  question  of  his  insanity.3  Although  a 
skilled  witness  cannot  be  asked  for  his  inference  whether  a  sui- 
cide was  caused  by  insanity,  he  may  be  asked  to  state,  from  his 
experience  and  reading  and  acquaintance  with  the  mental  condi- 
tion of  the  deceased,  what  effect,  if  any,  a  specified  disease  would 
have  upon  the  deceased  as  to  his  power  to  control  his  actions  or 
resist  any  impulse  with  which  he  might  be  seized.4 

43.  Declarations  and  admissions  of  the  subject.] — In  the  case 
of  a  policy  issued  to  one  person  on  the  life  of  another,  evidence 
of  the  declarations  and  admissions  of  the  latter  are  competent 
against  the  former,  when  offered  in  connection  with  evidence  of 
facts  showing  the  state  of  health,  and  if  made  concurrently  with 
the  fact,  and  at  or  prior  to  the  application,  and  not  too  remote  in 
point  of  time  from  it,  and  shown  to  be  a  part  of  the  res  gestcB  of 
the  fact  exhibiting  the  condition  of  health  which  they  ultimately 
tend  to  explain.5  And  whenever  the  bodily  or  mental  feelings 
are  relevant,  declarations  of  the  person  himself,  as  to  his  then 
present  condition,  ills,  pains  and  symptoms,  to  whomsoever  made 
(as  distinguished  from  narratives  of  past  condition),  are  compe- 
tent as  part  of  the  res  gestce.6  Except  within  these  limits,  such 
admissions  and  declarations  are  incompetent  as  evidence  of  the 
fact  declared;  unless  there  be  something  to  show  agency,  or 
other  ordinary  ground  for  admitting  the  declarations  of  third 
persons.  Declarations  of  the  person  on  whose  life  the  policy  is- 
sued made  after  its  issue,  are  not  competent  against  the  insured,7 

at  bed  time,  and  at  midnight  the  report  of  a  pistol  being  heard,  was  found  shot  in 
the  mouth,  and  the  pistol  lying  near,  is  not  sufficient  as  matter  of  law  to  prove  that 
he  died  by  his  own  hand,  and  prevent  a  verdict  for  plaintiff  Phillips  v.  Louisiana 
Equitable  Life  Ins.  Co.  26  La.  Ann.  404,  s.  c.  21  Am.  R.  649. 

1  Terry  v.  Life  Ins.  Co.  1  Dill.  C.  Ct.  403  ;  15  Wall.  580. 

9  Id.  ;  Insurance  Co.  v.  Bodel,  95  U.  S.  (5  Otto),  232,  240. 

1  Insurance  Co.  v.  Bodel,  95  U.  S.  (5  Otto),  232,  238.  Page  118  of  this  yol. 

4  Koenig  v.  Globe  Mut.  Life  Ins.  Co.  10  Hun,  658.  Whether  the  snicids  of  a  per- 
son hypothetically  regarded  as  subject  to  melancholia,  might  be  attributed  to  the 
disease,  is  not  a  question  for  an  expert  witness,  but  for  the  jury.  Van  Zandt  v.  Mut. 
Benefit  Life  Ins.  Co.  55  N.  Y.  169.  As  to  the  mode  of  proving  insanity  generally, 
Bee  p.  115,  <tc.  of  this  vol. 

6  Edington  v.  Mut.  Life  Ins.  Co.  67  N.  Y.  185,  and  cases  cited,  rev'g  5  Hun,  1. 

8  Insurance  Co.  v.  Mosley,  8  Wall.  397;  Ashbury  Life  Ins.  Co.  v.  Warren,  66  Me. 
623,  B.  c.  22  Am.  R.  590. 

'  Swift  v.  Mass.  Mut.  Life  Ins.  Co.  63  N.  Y.  186,  193,  rev'g  3  Hun,  651 ;  Edington 
T.  Mat.  Life  Ins.  Co.  67  N.  Y.  185,  193,  rev'g  5  Hun,  1. 


ACTIONS  ON  CONTRACTS  OF  INSURANCE.  503 

nor  are  they  competent  against  his  assignee  of  the  policy  ; 1  but 
if  there  be  other  evidence  of  the  fact,  they  are  admissible  (just 
as  are  the  declarations  of  strangers  communicated  to  the  person 
whose  life  was  insured), a  for  the  purpose  of  showing  his  knowl- 
edge of  the  fact,  if  knowledge  is  relevant.3 

44.  Accident  insurance.] — The  accident  itself,  and  the  manner 
of  it,  occurring  without  the  presence  of  witnesses,  may  be  proved 
by  testimony  to  the  declarations  of  the  deceased,  made  when 
found  in  suffering,  that  he  had  immediately  previous  been  in- 
jured in  a  specified  way.4  There  is  a  presumption  against  sui- 
cide ;  and  evidence  that  death  must  have  been  caused  either  by  a 
cause  within  the  policy  or  by  the  suicidal  act  of  the  deceased, 
makes  a  prima  facie  case  against  the  insurers.5 


1  Edington  v.  Mut.  Life  Ins.  Co.  67  N.  Y.  186,  reVg  5  Hun,  1.    The  reason  is  that 
after  the  contract  of  insurance  has  been  effected,  the  subject  of  insurance  has  no 
such  relation  to  the  holder  of  the  policy  as  gives  him  power  to  destroy  or  affect  it  by 
unsworn  statements.     An  offer  of  evidence  of  such  declarations  should  show  that  they 
were  made  before  the  contract  of  insurance  was  effected.     Edington  v.  ^Etna  Lifa 
Ins.  Co.  13  Hun,  643,  648. 

2  McNair  v.  National  Life  Ins.  Co.  13  Hun,  144. 

3  Dilleber  v.  Home  Life  Ins.  Co.  69  N.  Y.  256. 

4  Ins.  Co.  v.  Mosley,  8  Wall.  405. 

*  Mallory  v.  Travellers'  Ins.  Co.  47  N.  Y.  62. 


OHAPTEE  XXVII. 

ACTIONS  ON  BONDS,  COVENANTS,  AND  OTHER  SEALED  INSTRU- 
MENTS. 


I.  GENERAL  RULES. 

1.  The  making  of  the  contract. 

2.  Execution. 
8.  Seal. 

4.  Sealed  authority. 

5.  Statutory  conditions. 

6.  Delivery. 

7.  Qualified  delivery. 

8.  Escrow. 

9.  Acceptance. 

10.  Date. 

11.  Consideration. 

12.  Oral  evidence  to  vary. 

13.  Practical  construction. 

14.  Lost  instrument. 

15.  Subsequent  modification. 

16.  Breach. 

17.  Damages. 

18.  Fraud  ;  failure  of  consideration. 

19.  Reformation. 

20.  Declarations    and    admissions  of 
•  principal. 

II.  BONDS. 

21.  Estoppel  by  recital 


II.  BONDS — continued. 

22.  Breach. 

24.  Bottomry  bonds. 

23.  Administration  bonds. 

25.  Indemnity  bonds. 

26.  Official  bonds. 

III.  CHARTER-PARTIES. 

27.  General  rule  as  to  oral  evidence  to 

vary. 

28.  Usage. 

29.  Terms;  measurements;  cargo;  ca- 

pacity. 
80.  Performance. 

31.  Damages. 

32.  Demurrage,  or  damages  for  deten- 

tion. 

IV.  COVENANTS  FOR  TITLE. 

33.  Implied  covenants. 

34.  Covenant  of  warranty. 

35.  —  of  seizin  and  right  to  convey. 

86.  —  against  incumbrances. 

87.  —  for  quiet  possession   or    enjoy- 

ment. 


I.  GENERAL  KULES. 

1.  The  making  of  the  contract!] — Execution  and  delivery  by 
the  party  to  be  charged,  if  not  admitted,  must  be  proved,  before 
the  instrument  can  be  put  in  evidence.    If  the  contract  is  several 
or  joint  and  several,  proof  of  execution  by  those  who  are  parties 
to  the  action  is  enough,  without  proof  of  the  signature  of  the 
others.1    Under  the  new  procedure,  evidence  to  charge  one  only, 
even  jointly  liable,  may  be  available  against  him.8    Plaintiff  may 
prove  that  a  name  written  at  the  left  hand,  in  the  place  proper  for 
a  subscribing  witness,  was  the  signature  of  a  party.3 

2.  Execution!} — The  signer,  though  competent  and  available 
as  a  witness,  need  not  be  called.     Proof  of  signature  of  the  party 


1  Sandford  v.  Handy,  23  Wend.  269.;   Conard  v.  The  Atlantic  Insurance  Co.  1 
Pet.  386,451. 

*  Pages  186, 187,  01  this  vol. 

*  Richardson  v.  Boynton,  1 2  Allen,  138. 

[504]    » 


GENERAL  RULES.  505 

sought  to  be  charged  is  prima  facie  sufficient  to  show  execution 
by  him,  without  other  proof  of  genuineness,1  unless  there  are 
alterations  not  noted  in  an  attestation  clause,  such  as  under  rules 
already  stated 2  require  explanation. 

Execution  may  be  proved  by  official  certificate  of  acknowl- 
edgment or  proof,3  though  made  since  the  action  was  brought.4 

A  defective  certificate  of  acknowledgment  or  proof  does  not 
preclude  common  law  evidence  of  execution.5 

But  if  there  is  no  sufficient  acknowledgment  or  proof  certi- 
fied, and  there  is  a  subscribing  witness,6  he  must  be  called,7  or  his 
absence  must  be  accounted  for.  The  law  recognizes  the  attesta- 
tion clause,  signed  by  a  witness,  as  a  legitimate  auxiliary,  aiding 
what  would  otherwise  be  fatal  defect  of  memory.  If  the  wit- 
ness does  not  affirmatively  impeach  the  execution  or  delivery,  his 
testimony  to  the  genuineness  of  the  signature  and  of  his  own 
attestation  of  it,  is  sufficient  to  go  to  the  jury.8  If  he  leaves  the 
question  in  doubt,  other  evidence  of  execution  becomes  admis- 

Ml        Q 

sible. 

The  absence  of  the  subscribing  witness  may  be  accounted  for 
by  showing  that  he  is  not  living,  or  not  competent  to  testify,  or 
not  within  the  jurisdiction  of  the  court,  or  not  to  be  found  with 
due  diligence  ;10  thereupon  his  handwriting  must  be  proved.11  The 
fact  that  the  execution  was  abroad  raises  a  presumption  that  the 
witness  is  beyond  jurisdiction.12  If  there  were  several  subscribing 
witnesses,  it  is  enough  to  produce  either  who  can  prove  the  in- 
strument j13  but  the  absence  of  all  must  be  accounted  for  before 
it  can  be  proved  by  handwriting,14  and  then  it  may  be  proved  by 


1  Wing  v.  Cooper,  37  Vt.  169, 176. 
s  Page  406  of  this  vol. 

3  Morris  v.  Wadsworth,  17  Wend.  103,  affi'd  in  10  Paige,  109  ;    Bowen  v.  Irish 
Presb.  Ch.  6  Bosw.  245.     And  see  United  States  v.  Wilkinson,  12  How.  U.  S.  246. 

4  Page  6  of  this  vol. 

6  Borst  v.  Empie,  5  N.  Y.  (I  Seld.)  33. 

4  Who  signed  ns  such  nt  time  of  execution  or  delivery,  Henry  v.  Bishop,  2  Wend. 
675;  Hollenback  v.  Fleming,  6  Hill,  303;  (Contra,  Jackson  v.  Phillips,  9  Cow.  94.) 
or  attested  on  the  present  request  of  the  parties,  Munns  v.  Dupont,  3  Wash.  C.  Ct. 
81.  It  may  be  shown  that  a  name  written  at  the  right  hand,  as  if  that  of  a  party, 
•was  in  fact  that  of  a  -witness  (Richardson  v.  Boynton  [above],  and  p.  419  of  this 
vol.  n.  10);  or  iictitious  or  unauthorized  (p.  391,  n.  12). 

There  is  no  legal  presumption  that  the  obligor  and  one  of  the  subscribing  wit- 
nesses are  the  same  from  identity  of  name.  Jackson  v.  Christman,  4  Wend.  277. 

1  Story  v.  Lovett,  1  E.  D.  Smith,  153;  Willoughby  v.  Carleton,  9  Johns.  136; 
notwithstanding  parties  are  now  competent  as  witnesses.  Jones  V.  Underwood,  28 
Barb.  481 ;  Hodnett  v.  Smith,  10  Abb.  Pr.  N.  S.  86,  B.  c.  2  Sweeny,  401 ;  41  How.  Pr. 
190.  , 

8  2  Greenl.  Ev.  p.  277,  §  295;   Hall  v.  Luther,  13  Wend.  491,  and  cases  cited; 
Hemphill  v.  Dixon,  Henipst.  235. 

9  Page  891  of  this  vol.  n.  13. 

10  Jackson  v.  Waldron,  13  Wend.  178;  Story  v.  Lovett  (above). 

11  Id. ;  Clarke  v.  Courtney,  5  Pet  319. 
14  Page  391  of  this  vol.  n.  11. 

13  8  Abb.  N.  Y.  Dig.  new  ed.  134,  135. 

M  Id. ;  Jackson  v.  Ghristman,  4  Wend.  277. 


506  ACTIONS  ON  SEALED  INSTRUMENTS. 

the  handwriting  of  either.1  Under  these  rules,  due  proof  of  the 
handwriting  of  all  the  witnesses  is  prima  facie  evidence  of  execu- 
tion,2 without  proof  of  the  handwriting  of  the  party.8  If  the 
witness'  handwriting  cannot  be  proved,  then,  after  preliminary 
evidence  of  diligent  and  fruitless  exertions  to  prove  his  hand- 
writing, proof  ol  the  handwriting  of  the  party  may  be  given.4 

Evidence  of  the  handwriting  of  the  party,  though  not  compe- 
tent as  a  substitute  for  proof  by  testimony  or  handwriting  of 
subscribing  witness;  is  competent  in  corroboration  of  it.8 

The  mode  of  proving  handwriting  has  already  been  fully 
stated.6  . 

3.  SealJ] — In  addition  to  the  rules  as  to  proof  of  seal  already 
stated,7  it  should  be  observed,  that  the  record  or  a  certified  copy 
of  the  record  of  an  instrument  which  has  been  recorded,  if  evi- 
dence under  the  statute,  is  competent,  for  the  purpose  of  show- 
ing whether  the  instrument  had  a  seal  or  not  at  the  date  of  rec- 
ord.8   An  expert  may  express  an  opinion  whether  the  original 
instrument  shown  him  bears  marks  of  having  had  a  seal.9- 

4.  Sealed  authority.'] — Where  foundation  has  been  laid  for 
secondary  evidence,  proof  of  an  oral  acknowledgment  by  the  de- 
fendant that  the  agent  or  attorney  acted  under  sealed  authority, 
is  competent,  and  an  acknowledgment  of  having  given  authority, 
may,  with  other  circumstances,  sustain  an  inference  that  the  ac- ' 
knowledgment  related  to  sealed  authority.10 

5.  Statutory  conditions.'] — The  fact  that  defendant  executed 
and  delivered  an  obligation  required  or  permitted  by  statute  to 
be  given  under  certain  conditions — whether  of  jurisdiction  n  or 
procedure12— amounts  to  an  admission  that  those  conditions  ex- 
isted, and  throws  upon  him  the  burden  of  proving  the  contrary.13 


1  Van  Rensselaef  v.  Jones,  2  Barb.  643. 

4  Murdock  v.  Hunter,  1  Brock.  Marsh.  135  ;  Clark  v.  Courtney  (above).  Whether, 
to  impair  the  effect  of  proof  of  witness"  handwriting,  evidence  of  liis  declarations 
that  he  had  never  attested  the  instrument  is  competent, — Compare  Neely  v.  Neely, 
17  Penn.  St.  227,  and  p.  112  of  this  vol.  note  8,  and  1  Whart.  Ev.  §  731,  citing  Ho- 
bart  v.  Dryden,  1  Mees.  &  W.  615. 

3  Unless,  perhaps,  when  there  are  very  suspicious  circumstances,  when  proof  of 
the  identity  of  the  grantor  may  be  also  necessary.     Hrown  v.  Kimball,  25  Wend. 
259,  reVg  Kimball  v.  Davis,  19  Id.  437.     Contra,  Northrop  v.  Wright,  7  Hill,  476, 
493. 

4  Jackson  v.  Waldron,  13  Wend.  178;  Clarke  v.  Courtney,  6  Pet.  319;  Morgan  T. 
Curtenius,  4  McLean,  366,  and  cases  cited. 

6  Clarke  v.  Courtney,  5  Pet.  319. 

«  Pages  392-398. 

*  Page  392 ;  and  as  to  corporate  seal,  page  36. 

8  Follett  v.  Rose,  3  McLean,  332;  Gillespie  v.  Reed,  Id.  877. 

9  Follett  v.  Rose  (above);  and  see  p.  397  of  this  vol. 

10  Blood  v.  Goodrich,  12  Wend.  525,  and  cases  cited. 

11  See,  for  instance,  People  v.  Falconer,  2  Sandf.  81,  and  cases  cited. 

14  Whiley  v.  Sherman,  3  Den.  185  ;  Dormday  v.  Kanouse,  2  N.  Y.  Leg.  Obs.  330. 
See,  for  instance,  Onderdonk  v.  Voorhis,  36  N.  Y.  358 ;    Delaney  v.  Brett,  1  Abb, 
Pr.  N.  S.  421. 

15  Onderdonk  v.  Voorhis  (above) ;  Coleman  v.  Bean,  1  Abb.  Ct.  App.  Dec.  394. 


GENERAL  RULES.  507 

6.  Delivery?] — Delivery  may  be  inferred  from  circumstances.4 
Possession  is  prima  facie  evidence  of  it,8  as  to  those  who  have 
signed  it,  even  though  others  named  in  the  instrument  have  not. 

Y.  Qualified  delivery, .] — If  a  written  instrument  is  executed 
by  part  only  of  those  named  in  it  as  parties,  the  question  whether 
those  who  have  executed  it  are  bound,  depends  upon  the  circum- 
stances under  which  it  was  delivered.  The  burden  is  on  the  de- 
fendant to  show  that  they  were  not.4  The  circumstances  of 
delivery  may  be  proved  by  parol.  If  it  appears  by  what  was 
said  at  the  time  of  the  delivery,  or  by  the  nature  of  the  transac- 
tion or  the  attendant  circumstances,  that  any  party  whose  signa- 
ture is  affixed  did  not  agree  to  be  bound  unless  the  other  parties  also 
signed,  the  delivery  will  be  considered  as  not  absolute  but  in 
escrow  merely.5  But  such  an  understanding  had  prior  to  the  ex- 
ecution and  delivery,  and  in  no  other  way  connected  with  that 
act,  cannot  be  shown.6  If  the  instrument  is  on  its  face  complete 
by  the  signatures  affixed  before  delivery,  the  stipulation  that 
others  should  sign  cannot  be  shown  by  parol,7  unless  notice  of  it 
is  brought  home  to  the  obligee.8 

8.  Escrow.'] — A  statement  in  a  receipt  given  by  a  third  person 
for  a  deed,  that  it  was  delivered  to  him  in  escrow,  is  not  neces- 
sarily controlling.     The  grantor's  intention  is  to  be  gathered  from 
the  whole  evidence.9 

Evidence  that  an  obligation  was  placed  in  the  hands  of  a 
stranger  to  be  delivered  in  a  future  contingency,  and  was  deliv- 
ered by  him  without  it  and  without  authority,  is  competent,10 
and  proves  that  the  obligation  never  had  inception.11 

9.  Acceptance.'] — Acceptance,  whether  by  plaintiff  u  or  by  de- 
fendant,13 may  be  presumed  from  the  apparently  beneficial  char- 


1  An  averment  or  admission  of  execution  may  be  a  sufficient  allegation  of  execu- 
tion and  delivery.  Roberta  v.  Good,  36  N.  Y.  408. 

*  Gardner  v.  Collins,  8  Mass.  898. 

3  Sicard  v.  Davis,  6  Pet.  124;  Games  v.  Dnnn,  14  Id.  822,  affi'g  1  McLean,  321; 
Grim  v.  School  Directors,  <fec.  51  Penn.  219;  Dillon  v.  Anderson,  43  N.  Y.  281.     Aa 
to  proof  of  delivery,  see  also  Brackett  v.  Barney,  28  N.  Y.  333 ;  People  v.  Bostwick, 
82  Id.  443;  Fisher  v.  Hall,  41  Id.  416. 

4  Dillon  v.  Anderson,  43  N.  Y.  231. 

8  Chouteau  v.  Suydam,  21  N.  Y.  179 ;  People  v.  Bostwick,  32  N.  Y.  445,  affi'g  43- 
Barb.  9;  Black  v.  Lamb,  1  Beasley  (N.  J.),  108.  Contra,  Pope  v.  Latham,  1  Pike 
(Ark.),  66. 

6  Philadelphia,  Ac.  R.  R.  Co.  v.  Howard,  13  How.  (U.  S.)  307.  This  seems  the 
sound  principle  which  should  guide  where  the  conflict  in  authorities  permits.  Com- 
pare Dair  v.  U.  S.  16  Wall.  I,  citing  conflicting  cases ;  Miller  v.  Fletcher,  27  Gratt. 
408,  8.  c.  21  Am.  R.  856;  People  v.  Bostwick  (above);  Pawling  v.  United  States,  4 
Cranch,  219. 

1  State  v.  Potter,  63  Mo.  212,  s.  c.  21  Am.  R.  440 ;  reviewing  conflicting  cases. 

8  State  ex  rel.  Barnes  v.  Lewis,  73  N.  C.  138.  s.  o.  21  Am.  R.  461. 

*  Brovrn  v.  Austen,  35  Barb.  341,  s.  c.  22  How.  Pr.  394,  and  cases  cited. 

10  Lovett  v.  Adams,  3  Wend.  380. 

11  Chipman  v.  Tucker,  38  Wis.  43,  a.  c.  20  Am.  R.  1. 
»  Bank  of  United  States  v.  Dnndrid<?e,  12  Wheat.  64. 

18  Kingsbury  v.  Burnside,  58  111.  310,  s.  c.  11  Am.  R.  67. 


508  ACTIONS  ON  SEALED  INSTRUMENTS. 

acter  of  the  contract,  and  evidence  even  of  slight  acts  indicating 
assent.  Non-acceptance  is  not  shown  by  mere  proof  that  the 
instrument  was  returned  for  the  purpose  of  having  an  additional 
surety.1 

10.  Date."] — The   date  stated  in  the  instrument   is  usually 
prima  facie,  but  not  conclusive,3  evidence  of  the  date  of  execu- 
tion and  delivery.     When  blank,  the  party  who  seeks  to  enforce 
the  instrument  has  the  burden  of  showing  the  true  date,4  if  ma- 
terial. 

11.  Consideration."] — The  seal  affixed  to  the  writing  sued  on5 
is  presumptive,6  but  not  conclusive,7  evidence  of  a  consideration  ; 
but  it  is  not  evidence  that  the  consideration  was  adequate,  where 
the  law  requires  adequacy  to  be  shown.8    Hence  even  partial 
failure  of  consideration  is  available.9    Under  the  statute  the  con- 
sideration is  open  to  inquiry,  to  the  same  extent  as  if  the  contract 
were  unsealed.10    The  statute  applies  to  foreign  contracts,11  and  to 
previous  as  well  as  to  subsequent  contracts,  so  far  as  it  affects  the 
remedy  only.13    Beyond  this,  it  cannot  apply  to  previous  contracts, 
because  it  would  impair  their  obligation. 

Notwithstanding  the  statute,  the  rule  excluding  parol  evi- 
dence which  would  vary  the  writing,  remains  unaffected.18 

A  nominal  consideration  inserted  in  the  writing  does  not  nec- 
essarily preclude  evidence  of  the  actual  consideration  agreed  on.14 

12.  Oral  evidence  to  vary  the  obligation!} — The  rule  excluding 
oral  evidence  to  vary  the  terms  of  a  writing  has  a  more  strict  ap- 
plication to  formal  instruments,  such  as  bonds  and  covenants, 
than  to  commercial  contracts  made  in  the  ordinary  course  of  mer- 
cantile business.15    In  the  former  case  there  is  much  more  ground 
for  presuming  that  the  parties  put  all  the  terms  of  their  contract 
into  the  writing,  than  in  the  latter.     Hence  evidence  of  any  prior 


1  Postmaster  General  v.  Norvell,  Gilp.  106. 

s  Pages  14  and  409  of  this  vol.     Seymour  v.  Van  Slyck,  8  Wend.  403. 

8  Mayburry  v.  Biien,  15  Pet.  21. 

4  See  Graves  v.  Lebanon  Nat.  Bank,  10  Bush.  23,  8.  c.  19  Am.  R.  60. 

6  It  is  only  when  the  writing  is  set  up  as  a  cause  of  action,  or  a  set-off  or  counter- 
claim, that  its  conclusive  effect  is  taken  away  by  the  N.  Y.  R.  S.  Calkins  v.  Long,  22 
Barb.  97.  A  sealed  release  is  conclusive.  Gray  v.  Barton,  55  N.  Y.  68 ;  Torry  v.  Black, 
58  Id.  185.  Otherwise  of  a  composition  deed  Russell  v.  Rogers,  15  Wend.  351. 

6  Home  Ins.  Co.  v.  Watson,  59  N.  Y.  390,  rev'g  4  Supra.  Ct.  (T.  &  C.)  226,  s.  c.  1 
Hun,  643. 

1  2  N.  Y.  R.  S.  406,  §  77.  "  There  is  no  longer  any  magic  in  a  wafer."  John- 
son  v.  Miln,  14  Wend.  195.  At  common  law,  it  is  conclusive.  Storm  v.  U.  S.  94  U. 
S.  (4  Otto),  84. 

8  As  in  case  of  a  contract  in  restraint  of  trade.  Ross  v.  Sagdbeer,  21  Wend.  166. 
Compare  Tnllmadge  V.  Wallis,  25  Wend.  107. 

•  Van  Epps  v.  Harrison,  5  Hill,  63  ;  Tallmadge  v.  Wallis,  25  Wend.  107. 

10  Wilson  v.  Baptist  Educational  Society,  10  Barb.  308. 

11  Williams  v.  Hayues,  27  Iowa,  251,  8.  c.  1  Am.  R.  268. 

12  Mann  v.  Eckfo.d,  15  Wend.  502;  Case  v.  Boughton,  11  Id.  106. 

13  McCurtic  v.  Stevens,  13  Wend.  627. 

14  Barker  v.  Bradley,  42  N.  Y.  316.     Compare  Halliday  v.  Hart,  32  N.  Y. 
"  See  pages  294,  409  and  412  of  this  voL 


GENERAL  RULES.  509 

or  contemporaneous  oral  understanding  is  generally  incompetent ; 
but  prior  or  contemporaneous  contracts  to  which  the  instrument 
in  question  was  subsidiary  or  auxiliary  may  be  shown.  Thus  an 
instrument  expressed  to  be  an  absolute  obligation  for  payment  of 
money  may  be  shown,  by  parol,  to  have  been  delivered  under  an 
agreement  that  it  should  be  held  by  the  obligee  as  collateral  se- 
curity for  a  debt  of  a  third  person,  and  be  cancelled  on  payment 
thereof.  Such  evidence  is  not  regarded  as  contradictory  to  the 
written  undertaking,  but  as  tending  to  show  that  it  has  been  dis- 
charged.1 

In  the  case  of  a  sealed  agreement  parol  evidence  is  not  ad- 
missible, as  in  other  cases,8  to  show  that  the  one  signing  was  only 
an  agent,  for  the  purpose  of  enabling  his  principal  to  enforce  it, 
unless  it  appears  on  tne  face  of  the  contract  that  it  was  intended 
to  be  the  contract  of  such  principal ; 3  nor  is  such  evidence  admis- 
sible for  the  purpose  of  holding  such  alleged  principal  liable  on 
it,  unless  a  seal  was  unnecessary,  and  the  interest  of  the  defend- 
ant appears  on  its  face,  and  he  has  received  its  benefit,  and  rati- 
fied it.*  So  oral  evidence  is  not  admissible  to  enable  him  to  en- 
force it,  nor  to  exonerate  from  personal  liability  trustees,  direct- 
ors or  the  like,  who,  in  their  individual  names,  have  entered  into 
a  sealed  obligation  not  indicating  their  representative  capacity.5 

The  general  rule  that  unambiguous  language  in  a  contract  must 
control,  does  not  exclude  extrinsic  evidence  of  the  subject-matter 
and  other  surrounding  circumstances  to  enable  the  court  to  con- 
sider what  the  parties  saw  and  knew,  in  order  to  ascertain  their 
meaning.6 

When  the  terms  of  an  agreement  have  been  intended  in  a  dif- 
ferent sense  by  the  different  parties  to  it,  that  sense  is  to  prevail, 
against  either  party,  in  which  he  supposed  the  other  understood  it. 

13.  Practical  construction.'] — The  acts  and  admissions  of  a 
party  to  an  ambiguous  instrument,  subsequent  to  its  execution,7 
and  particularly  a  long-continued  course  of  acts  under  it,  giving 
it  a  practical  construction,8  are  competent  against  him.  But 
if  the  language  is  clear  and  unambiguous,  such  a  practical 
construction  cannot  vary  it,9  unless  there  is  evidence  to  sustain  a 
waiver  or  estoppel. 

1  Chester  v.  Bank  of  Kingston,  16  N.  Y.  336.  And  see  Huntington  v.  Adams,  13 
Ala.  834. 

*  Pages  298.  302  of  this  vol. 

8  City  of  Providence  v.  Miller,  11  R.  I.  272,  s.  o.  23  Am.  R.  453,  and  cases  cited. 
See  also,  Stowell  v.  Eldred,  39  Wis.  614. 

4  Briggs  v.  Partridge,  64  N.  Y.  364,  and  cases  cited.  And  see  Squier  v.  Norris, 
1  Lans.  285. 

6  Lincolu  v.  Crandell,  21  Wend.  101.  The  Pennsylvania  rule  seems  to  allow  oral 
qualification  more  freely.  Lippincott  v.  Whitman,  83  Pa.  St.  244,  and  cases  cited; 
Greenwalt  v.  Kohne,  86  Pa.  St.  369. 

6  Clark  v.  United  States  Life  Ins.  &  T.  Co.  64  N.  Y.  33,  rev'g  7  Lans.  322 ;  and 
see  Reynolds  v.  Commercial  Fire  Ins.  Co.  47  N.  Y.  597. 

T  Goodyear  v.  Gary,  4  Blatchf.  271. 

8  Forbeav.  Watt,  L.  R.  2  S.  &  D.  App.  214,  s.  c.  2  Moak's  Eng.  512. 

•  Railroad  Co.  v.  Trimble,  10  Wall  367. 


510  ACTIONS  ON  SEALED  INSTRUMENTS. 

14.  Lost  instrument.'] — Loss  need  not  be  alleged  in  pleading.1 
If  the  instrument  is  shown  to  have  been  filed  pursuant  to  statute, 
its  loss  may  be  shown  by  official  certificate  of  search,  if  authorized 
by  statute  ;2  or  by  testimony  of  a  witness  who  has  searched,  unless 
the  statute  makes  an  official  certificate  the  exclusive  evidence.3 
If  the  lost  instrument  is  otherwise  proven,  slight  evidence  that  it 
had  a  seal  is  enough  to  go  to  the  jury.4 

An  agreement  of  the  parties  dispensing  with  production  of 
the  original  instrument,  does  not  necessarily  dispense  with  the 
ordinary  proof  of  due  execution  of  the  original.5 

15.  Subsequent  modification^ — A  sealed    agreement  cannot, 
before  breach,6  be  modified  by  a  simple  executory  contract.7    It 
may  (subject,  however,  to  the  requirements  of  the  statute  of 
frauds)  be  modified  by  an  executed  contract,  either  oral  or  writ- 
ten, founded  on  new  consideration.8    And  the  right  of  a  party 
under  it  may  be  impaired  by  a  waiver  or  estoppel  founded  on  his 
acts,  his  words  or  even  his  silence.     A  discharge  or  modification 
of  any  liability  upon  such  an  instrument,  after  breach,  may  be 
shown  by  parol.9 

16.  Breach^ — On  a  contract  merely  to  pay  money,  although 
plaintiff  usually  alleges  non-payment,  only  very  slight  if  anv  evi- 
dence of  breach  is  required.1"    In  other  contracts  plaintiff  should 
allege  a  breach,  and  should  prove  it,  unless  it  is  admitted,  or  per- 
formance is  affirmatively  alleged  by  defendant.11    Where  indem- 
nity alone  is  expressed,  there  must  be  evidence  that  damage  has 
been  sustained ;  but  where  there  is  a  positive  agreement  that  the 
act  which  is  to  prevent  damage  to  the  plaintiff  shall  be  done, 
it  is  enough  that  such  act  is  unperformed.12   Where  the  covenant 
is  both  to  do  the  act  and  to  indemnify,  it  becomes  a  question  of 
the  intention  of  the  parties.13 

Under  an  allegation  of  breach  of  agreement,  and  a  total  fail- 
ure to  prove  the  agreement,  the  action  is  not  sustained  by  evi- 


1  Livingston  v.  White,  30  Barb.  72. 

*  2  N.  Y.  R.  S.  3  ed.  639,  §  13 ;  Code  Civ.  Pro.  §  921. 

»  Teall  v.  Van  Wyck,  10  Barb.  376. 

4  Livingston  v.  White,  30  Barb.  72. 

6  Clark  v.  Courtney,  5  Pet.  319. 

6  See  Kuhn  v.  Stevens,  7  Robt.  644,  s.  o.  36  How.  Pr.  275. 

1  Allen  v.  Jaquish,  21  Wend.  628  ;  Eddy  v.  Graves,  23  Wend.  81. 

8  Moses  v.  Bierling,  31  N.  Y.  462 ;  Fleming  v.  Gilbert,  3  Johns.  628 ;  Pierrepont  v. 
Barnard,  6  N.  Y.  279,  rev'g  6  Barb.  364. 

9  Delacroix  v.  Bulkley,  13  Wend.  71 ;  Townsend  v.  Empire  Stone  Dressing  Co.  6 
Duer,  208;  Dodge  v.  Crandall,  80  N.  Y.  294.     See  further  as  to  this  subject,  p.  314 
of  this  vol. 

10  The  same  has  been  held  of  a  covenant  to  do  an  act  or  pay  a  certain  sum.     Mc- 
Gregory  v.  Prescott,  6  Cush.  (Mass.)  67. 

11  This  I  understand  to  be  the  general  rule  and  commonly  applied  in  practice, 
although  the  decisions  are  not  harmonious. 

18  Matter  of  Negus,  7  Wend.  498.  and  cases  cited. 

13  Rector,  «fec.  of  Trinity  Ch.  v.  Higgins,  48  N.  Y.  532,  rev'g  4  Robt.  I ;  Gilbert  v. 
Wiman,  1  N.  Y.  550,  554 ;  Rubens  v.  Prindle,  44  Barb.  336. 


GENERAL  RULES.  511 

dence  of  a  tort,  although  such  as  would  have  been  a  breach  had 
there  been  such  an  agreement.1 

Where  performance  is  in  issue,  evidence  of  non-performance 
with  an  excuse  therefor,  is,  in  general,  inadmissible.2 

17.  Damages."] — Plaintiff  is  not  entitled  to  prove  a  breach  not 
alleged,8  unless  there  is  a  general  allegation  ; 4  but  he  is  not  bound 
to  prove  a  breach  to  the  full  extent  alleged ;  nor  is  he  confined  to 
the  precise  number  or  value  alleged.5    But  he  cannot  recover 
more  than  alleged,  and  he  cannot  prove  any  damages  of  a  kind 
not  necessarily  resulting  from  the  breach  alleged  and  proved,  un- 
less they  are  specially  stated  in  the  complaint.     To  recover  dam- 
ages more  than  nominal,  they  must  be  shown  with  reasonable  cer- 
tainty at  the  trial,  and  not  left  to  speculation  and  conjecture ; 6 
but  every  reasonable  presumption  may  be  made  as  to  the  benefit 
which  the  other  parties  might  have  obtained  by  the  bond  fide  per- 
formance of  the  agreement.7    The  allegation  of  amount  of  un- 
liquidated damages  is  not,  for  this  purpose,  to  be  taken  as  true, 
by  an  omission  to  deny  it.8    An  award  as  to  the  amount  of  dam- 
ages, may  avail  as  conclusive,  although  the  action  be  necessary  to 
establish  liability.9 

If  the  contract  specifies  the  amount  to  be  paid  in  case  of  a 
breach,  and  the  settled  rules  of  construction 10  do  not  conclusively 
determine  whether  it  is  liquidated  damages  or  a  penalty,  the  in- 
strument may  be  aided  and  the  real  intention  ascertained  by 
proof  of  extrinsic  facts.11  A  sum  duly  fixed  as  liquidated  dam- 
ages, and  not  as  a  penalty,  is  recoverable  without  proof  of  actual 
damage.12 

The  general  principles  as  to  proof  of  value,  injury,  &c.,  by 
the  opinions  of  witnesses,  have  been  already  stated.13  The  opinion 
or  conclusion  of  a  witness  as  to  the  amount  of  damage  sustained, 
as  distinguished  from  his  knowledge  of  Value,  and  of  the  differ- 
ence in  value  caused  by  breach,  is  not  admissible.14 

18.  Fraud;  Failure  of  consideration.'] — Fraud  in  the  execu- 
tion is  always  admissible  under  proper  allegation.15    Fraud  in  the 


1  Beard  r.  Yates,  2  Hun,  466. 

»  Oakley  v.  Morton,  11  N.  Y.  25 ;  Warren  v.  Bean,  6  Wis.  120. 

3  Brings  v.  Vanderbilt,  19  Barb.  222. 

4  Trimble  v.  Stilwell,  4  E.  D.  Smith,  612. 
e  2  Greenl.  Ev.  243,  §  260. 

6  Neary  v.  Bostwick,  2  Hilt.  614. 

1  Wilson  v.  Northampton  &  Banbury  Junction  Ry.  Co.  L.  R.  9  Chan.  App.  279, 
8.  c.  8  Monk's  Eng.  R.  866,  per  Ld.  SELBORNE. 

8  Stuart  v.  Binsse,  10  Bosw.  436. 

»  Whitehead  v.  Tattersall,  1  Ad.  A  E.  491. 

'°  Bagley  v.  Peddie,  16  N.  Y.  469,  and  cases  cited;  2  Greenl.  Ev.  241,  §  258. 
11  See  Shute  v.  Hamilton,  3  Daly,  462,  472. 
"  Smith  v.  Coe,  83  Super.  Ct.  (1  J.  <fc  S.)  480,  483. 

13  Pages  310,  348,  368,  Ac.,  of  this  vol. 

14  Moreliouso  v.  Mathews.  2  N.  Y.  614;  Wetherbee  v.  Bennett,  2  Allen,  428,  430. 

15  Hartshorn  v.  Day,  19  How.  U.  S.  211. 


512  ACTIONS  ON  SEALED  INSTRUMENTS. 

consideration,  or  a  failure  of  consideration,  though  not  usually  ad- 
mitted at  common  law,1  is  equally  available  under  the  new  pro- 
cedure if  it  amount  to  an  equitable  defense.  Evidence  that  the 
signer  was  illiterate,  and  that  the  instrument  was  not  read  to  him 
or  only  read  to  him  bv  the  other  party,  does  not  avoid  it,  but 
shifts  the  burden  to  the  other  to  show  that  it  was  explained  to 
him  in  substance,  and  there  was  no  suppression,  concealment,  or 
misrepresentation  of  any  of  its  obligations.2  To  avoid  a  surety's 
signature  for  fraudulent  concealment  by  the  creditor,  it  must  be 
shown  that  the  creditor  misled  him,  or  induced  him  to  become 
surety  in  ignorance,  or  at  least  was  present  when  another  did  so.3 
A  failure  of  consideration  cannot  be  proved  under  a  general 
denial.4 

19.  Reformation.'] — Under    the    new    procedure,   either  the 
plaintiff5  or  defendant,6  if  appearing  and  claiming  in  one  and  the 
.  same  capacity,7  may,  under  proper  allegations  show  fraud  or  mis- 
take in  the  instrument  sued  on,  entitling  him  to  a  reformation 
and  judgment  accordingly,  without  bringing  a  separate  action. 

I  or  this  purpose,8  it  is  necessary  to  show  either  mutual  mis- 
take, or  mistake  of  one  party  to  the  instrument,  known  to  the 
other,  and  fraudulently  taken  advantage  of,  by  him.  The  mi&-' 
take  must  be  as  to  a  fact  shown  to  be  material  and  to  have  anima- 
ted and  controlled  the  conduct  of  the  party  in  assenting,9  or  as  to 
the  preparation  and  contents  of  the  instrument,  so  that  it  does 
not  express  the  actual  agreement  made.10  In  the  case  of  an  error 
in  the  instrument,  the  fact  that  the  other  party  knew  of  the  mis- 
take, and  inequitably  suffered  it  to  pass,  is  practically  equivalent 
to  fraud.11  Within  these  limits,  even  though  the  contract  be 
within  the  statute  of  frauds,12  parol  evidence  of  the  agreement  or 
the  intent  of  the  parties  is  admissible,  to  prove  that  by  mistake 
something  material  has  been  omitted ;  or  that  the  instrument  con- 
tains more  than  was  intended ;  or  that  it  varies  from  their  intent 
by  expressing  something  different  in  substance  from  the  truth  of 


1  Hartshorn  v.  Day,  19  How.  TT.  S.  211. 

s  Ellis  v.  McCormick,  1  Hilt.  313 ;  Harris  v.  Story,  2  E.  D.  Smith,  363 ;  Suffern, 
v.  Butler,  19  N.  J.  Eq.  202. 

3  Atlas  Bank  v.  Brownell,  9  R.  I.  168,  s.  c.  11  Am.  R.  231 ;  Magee  v.  Manhattan 
Life  Ins.  Co.  92  U.  S.  (2  Otto),  93,  99. 

*  Dubois  v.  Hermance,  56  N.  Y.  673,  affi'g  1  Supm.  Ct.  (T.  <fc  C.)  293. 

8  Laub  v.  Buckmiller,  17  N.  Y.  620 ;  Bartlett  v.  Judd,  21  N.  Y.  200,  affi'g  23 
Barb.  262. 

6  Haire  v.  Baker,  6  N.  Y.  357. 

I  Cady  v.  Potter,  55  Barb.  463.    Compare  Haddow  v.  Ltrady,  59  N.  Y.  320,  and 
Rathbone  v.  Hooney,  58  N.  Y.  463. 

8  As  distinguished  from  a  claim  to  rescind.     Smith  v.  Mackin,  4  Lans.  41. 

9  Grymes  v.  Sanders,  93  U.  S.  (3  Otto),  55,  60,  and  cases  cited. 

10  Leavitt  v.  Palmer,  3  N.  Y.  19 ;  O'Donnell  v.  Harmon,  3  Daly,  424 ;  Pitcher  v. 
Hennessy,  48  N.  Y.  415, 

II  Boteford  v.  McLean,  45  Barb.  478,  correcting  42  Id.  445. 

"  Eider  v.  Powell,  4  Abb.  Ct.  App.  Dec.  63,  s.  c.  less,  fully,  28  N.  Y.  310. 


BONDS.  513 

that  intent.1  The  mistake  must  be  clearly  made  out  by  the  most 
satisfactory  proof  ;a  and  the  actual  agreement  must  also  be  shown 
with  clearness.8 

20.  Declarations  and  admissions  of  principal^] — In  an  action 
against  principal  and  surety  jointly,  the  admissions  and  declara- 
tions of  the  former  are  competent  not  only  against  himself,  but 
also  against  the  surety,  if  made  as  part  of  the  res  gestcB  of  an  act 
properly  in  evidence  against  the  former,4  otherwise  not.5  But 
when  admissible,  such  declarations  and  admissions  of  the  prin- 
cipal, and  even  his  formal  official  reports  made  during  the  period 
in  respect  of  which  the  surety  is  liable,  are  not  conclusive  against 
the  surety.6 

Entries  made  by  the  principal  against  his  interest,  though  in 
a  private  book,  are,  after  his  death,  competent  primary  evidence 
against  his  surety,  although  a  witness  to  the  transaction  might 
have  been  called. 


II.  BONDS. 

• 

21.  Estoppel  fiy  recital.'] — In  an  official  bond  the  recital  of  ofT 
ficial  character  or  appointment  is  conclusive  evidence  of  the  ap- 
pointment as  against  the  obligors,  sureties  as  well  as  principal.7 
A  mere  recital  cannot  operate,  by  way  of  estoppel,  so  far  as  to 
preclude  the  obligees  from  showing  the  instrument  absolutely 
void ; 8  but  it  may  estop  as  to  any  particular  matter  of  fact  re- 
cited.9 Even  sureties  are  bound  by  the  recital  of  preliminaries 
not  affecting  the  jurisdiction.10  A  recital  estops  as  to  the  fact  re- 


1  Pennell  v.  Wilson,  2  Abb.  Pr.  N.  S.  466,  s.  c.  less  fully,  2  Robt.  505  ;  Nevins  r. 
Dunlap,  83  N.  Y.  676. 

8  Same  cases  (Lyman  v.  United  Ins.  Co.  17  Johns.'  373):  "Beyond  all  reasonable 
doubt,"  says  the  chancellor  in  Coles  v.  Bowne,  10  Paige,  526.  But  compare  p.  495 
of  this  vol. 

8  Kent  v.  Manchester,  29  Barb.  595. 

4  Bank  of  Brighton  v.  Smith,  12  Allen.  243,  249;  Union  Savings  Assoc.  v.  Ed- 
wards 47  Mo.  445;  Snell  v.  Allen,  1  Swan  (Tenn.),  208;  Dobbs  v.  Justices,  <tc.  17 
Ga.  624,  630 ;  2  Whart.  Ev.  §  1212.  (For  a  broader  rule,  see  Atlas  Bank  v.  Brown- 
ell,  9  R.  I.  168,  s.  o.  11  Am.  R.  231.  But  compare  p.  188  of  this  vol.)  Unless  there 
ia  evidence  of  combination  between  the  plaintiff  and  the  principal.  Commonwealth,  v. 
Kendig,  2  Pa.  St,  448,  452;  United  States  v.  Cutter,  2  Curt.  C.  Ct.  617. 

6  Stetson  v.  City  Bank,  2  Ohio  St.  167,  177;  Blair  v.  Perpetual  Ins.  Co.  10  Mo. 
659,  567 ;  Smith  v.  Whiopingham,  6  C.  <b  P.  78.  Compare  Amherst  Bank  v.  Root, 
2  Mete.  (Mass.)  522,  54  f;  Parker  v.  State,  8  Black.  292. 

6  Bissel  v.  Saxton,  66  N.  Y.  55. 

*  Fake  v.  Whipple,  39  N.  Y.  S'J4,  affi'g  39  Barb.  339,  and  cases  cited  ;  Bruce  v. 
United  States,  17  How.  U.  S.  437. 

8  Caldwell  v.  Colgate.  7  Barb.  253.     Avoiding  the  deed  avoids  also  the  estoppel. 
Id.     As,  for  instance,  where  the  case  was  without  jurisdiction.     Caffrey  v.  Dudgeon. 
38  Ind.  512,  s.  c.  10  Am.  R.  126  ;  Germond  v.  People,  1  Hill,  343. 

9  See  Decker  v.  Judaon,  16  N.  Y.  439. 

10  Coleman  v.  Bean,  1  Abb.  Ct.  App.  Dec.  394. 

83 


514  ACTIONS  ON  SEALED  INSTRUMENTS. 

cited,1  but  docs  not  necessarily  exclude  evidence  of  another  inde- 
pendent fact  which  avoids  the  effect  of  the  former.2 

A  bond  to  an  officer  is  at  least  prim  a  facie  evidence,  against 
the  obligors,  of  his  appointment.8  In  a  bond  of  indemnity  against 
the  non-performance  of  a  contract,  the  recital  of  the  execution  of 
the  contract  is  conclusive  evidence  of  its  due  execution,4  and  its 
validity  so  far  as  that  is  matter  of  fact.8  Recitals  are  evidence, 
though  the  facts  recited  be  not  alleged  otherwise  than  by  setting 
forth  the  instrument  in  which  they  appear.8 

22.  Breach.] — In  an  action  on  a  bond  for  payment  of  money 
only,  it  is  for  defendant  to  prove  payment.7    In  an  action  for 
breach  of  any  other  condition,  plaintiff  should  allege  non-per- 
formance of  the  condition,8  and  give  some  evidence  of  non-per- 
formance,9 unless  it  is  admitted  expressly  or  impliedly.10   It  is  for 
plaintiff  to  show  the  state  of  facts  called  for  to  prevent  the  con- 
dition taking  effect.11   If  the  bond  is  conditioned  for  performance 
of  another  contract,  and  it  appears  that  there  were  conditions 
precedent  in  that  contract  requiring  something  from  plaintiff,  he 
must  show  performance  of  those  conditions.12    But  if  there  is  a 
proviso  or  defeasance  contained    in  a  condition,  the  facts  neces- 
sary to  invoke  it  must  be  set  up  by  defendant  in  order  to  avarl 
him.13    Satisfaction  by  parol,  of  money  due  by  the  condition  of  a 
bond,  before  forfeiture,  may  be  proved  by  paroL14 

23.  Administration  'bonds.'] — Actual  appointment,  letters  and 
oath,  may  be  proved  by  the  record ;  but,  without  its  production, 
may  be  proved  by  a  recital  in  the  bond,  of  intent  to  apply  for  let- 
ters, with  evidence  that  the  principal  acted  as  if  appointed  and 
qualified.15    The  surrogate's  decree,  shown  to  have  been  made  in 
a  proper  proceeding,16  and  directing  the  administrator  to  make  a 
payment,  is  conclusive  on  the  sureties,  unless  fraud  or  collusion 
is  shown.17    Plaintiff  must  also  show  disobedience  j  and  proof  of 


1  Cocks  v.  Barker,  49  N.  T.  107. 
8  Reed  v.  McCourt,  41  N.  Y.  436. 
8  Scott  v.  Duncombp,  49  Barb.  73. 

4  Lee  v.  Clark,  1  Hill,  66. 

5  Jarvis  v.  Sewall,  40  Barb.  449. 

6  Slack  v.  Heath,  4  E.  D.  Smith,  95,  B.  c.  1  Abb.  Pr.  881. 

7  Mann  v.  Eckford,  15  Wend.  619.     Compare  Jolley  v.  Plant,  1  MacArthur,  98. 

8  Thomas  v.  Allen,  1  Hill,  145 ;    Lipe  v  Becker,  1  Den.  668;    2  N.  Y.  R.  S.  878, 

§6. 

9  United  States  v.  Bell,  Gilp.  41. 

10  Cotheal  v.  Talmadge,  1  E.  D.  Smith,  673,  576. 

11  Ferris  v.  Purdy,  10  Johns.  358. 

19  Water  Commissioners  of  Detroit  v.  Burr,  56  N.  Y.  665,  affi'g  35  N.  Y.  Super, 
Ct(3  J.  <fcS.)522. 

13  Jarvis  v.  Sewall,  40  Barb.  449. 

14  Keeler  v.  Salisbury,  33  N.  Y.  648. 

15  Dayton  v.  Johnson,  69  N.  Y.  419.     Compare  Lent  v.  Hascall,  22  N.  Y.  188. 

16  Behrle  v.  Sherman,  10  Bosw.  292. 

"Thaver  v.  Clark,  4  Abb.  C't.  App.  Dec.  801,  affi'g  48  Barb.   243;    Casoni  V. 
Jerome,  53  N.  Y.  315.     Seo  also  1  Wms.  Exrs.  6th  Am.  ed.  696,  n. 


BONDS.  515 

leave  to  sue  is  not  enough  for  this  purpose.1  But  if  plaintiff 
show  disobedience  or  failure  to  comply  at  a  given  time,  the  bur- 
den is  on  defendant  to  show  subsequent  compliance  if  he  rely  on 
that.3  Plaintiff  should  be  prepared  to  prove  the  surrogate's  leave 
to  sue.3  His  leave  to  sue  is  conclusive.4  Neither  notice  of  these 
proceedings  to  the  surety,  nor  a  demand  on  the  surety,  is  neces- 
sary.5 

The  defendant  may  show6  either  that  the  bond  was  not  made, 
or  that  the  decree  was  not  made ;  or,  if  made,  was  collusive,7  or 
that  there  was  no  failure  by  the  administrator  to  comply ;  or  that 
there  was  no  order  for  the  prosecution.  But  not  that  lie  was 
misled  in  signing  the  bond,  by  one  with  whose  deception  plaintiff 
was  not  connected ; 8  nor  that  the  surrogate  erred  in  making  the  de- 
cree, nor  that  he  wrongly  adjudged  the  claim  established  ;  nor  that 
there  were  in  fact  no  assets,  although  the  surrogate  decided  that 
there  were  assets  to  be  applied.9 

24.  Bottomry  bonds.] — The  bond  duly  proved  raises  a  pre- 
sumption that  the  amount  was  furnished  to  the  vessel.10  But  if 
executed  by  the  master,  plaintiff  must  show  that  he  acted  within 
the  scope  of  his  authority, — that  is  to  say,  there  must  be  evidence 
of  actual  necessity  for  repairs  and  supplies ;  or  at  least  of  due  in- 
quiry and  of  reasonable  grounds  of  belief  that  the  necessity  was 
real  and  exigent.11  Necessity  for  repairs  and  supplies  raises  a  pre- 
sumption of  necessity  for  credit,12  especially  if  the  vessel  was  in  a 
foreign  port ; 13  and  throws  on  the  owner  the  burden  of  showing 
that  the  money  could  have  been  obtained  otherwise  than  by  bot- 
tomry.14 

25.  Indemnity  bonds.'] — Possession  by  the  principal  is  evidence 
of  authority  to  deliver  ;  and  parol  qualifications  not  made  known 
to  the  obligee  cannot  be  proved  against  him.15  The  seal  raises  a 
presumption  of  consideration,  even  for  a  bond  of  indemnity 
against  the  consequences  of  performing  a  legal  obligation ;  and 
defendant  must  overcome  this  by  proof  that  there  were  no  facts 


1  People  v.  Barnes,  12  Wend.  492. 

s  Dayton  v.  Johnson,  69  N.  Y.  419. 

8  People  v.  Falconer,  2  Sandf.  81 ;  Beall  v.  New  Mexico,  16  Wall  643;  and  see 
Matter  of  Van  Eps,  66  N.  Y.  699. 

4  People  v.  Downing,  4  Sandf.  189. 

6  Wood  v.  Barstow,  10  Pick.  868. 

6  People  v.  Laws,  3  Abb.  Pr.  460. 

1  Annctt  v.  Terry,  35  N.  Y.  256,  affi'g  2  Robt  656,  s.  c.  28  How.  Pr.  324;  People 
V.  Townsend,  87  Barb.  620. 

8  Casoni  v.  Jerome,  58  N.  Y.  316. 

9  People  v.  Laws  (above). 

10  Cohen  v.  The  Amanda,  Crabbe,  277. 

11  The  Grapeshot,  9  Wall.  129;  The  Bridgewater,  Olc.  85. 
15  The  Grapeshot  (above). 

13  The  Washington  Irving,  2  Ben.  318,  323. 

14  The  Knthl  -en,  2  Hen.  458  ;  The  Virgin  v.  Vyf  biua,  8  Pet.  638. 
"  Belloni  v.  Freeborne,  63  N.  Y.  383. 


516  ACTIONS  ON  SEALED  INSTRUMENTS. 

throwing  donbt  on  the  obligation.1  On  an  indemnity  against 
damage,  by  reason  of  any  fact,  as  distinguished  from  an  indem- 
nity against  liability  or  an  obligation  to  do  a  specific  act,  actual 
loss  or  injury  must  be  shown,  except  in  the  case  of  some  statu- 
tory bonds/  The  competency  and  effect  of  a  judgment  against 
the  plaintiff  has  already  been  stated.8 

26.  Official  bonds.*] — The  general  rules  applicable  in  actions 
by  and  against  public  officers  have"  already  been  stated.5  It  may 
be  further  added  that  a  fiscal  officer  may  sometimes  be  presumed 
to  have  received  the  whole  amount  collectible  upon  his  warrant, 
and  that  he  retains  in  his  own  hands  the  balance  unaccounted 
for ;  and,  in  such  case,  the  burden  of  proof  is  on  him  to  show 
that  the  failure  to  pay  arose  from  his  inability  to  collect  the  sum, 
except  by  compulsory  measures  against  the  taxpayers ; 6  but  a 
public  officer  is  not  generally  presumed  to  have  applied  funds  to 
his  private  purposes ;  and  hence  his  pecuniary  embarrassments 
are  not  generally  competent ;  yet  where  it  has  been  shown  that 
those  having  the  right  to  control  his  acts,  have  permitted  him  to 
use  such  funds,  his  pecuniary  embarrassments  may  be  competent 
in  favor  of  his  sureties.7  A  balance  shown  to  have  been  due 
from  the  officer,  when  re-appointed,  is  presumed,  but  not  conclu- 
sively, to  have  been  then  still  in  his  hands  ;  but  his  sureties  may 
show  that  he  was  in  fact  already  a  defaulter  when  they  became 
such.8 

Peculiarities  in  the  mode  of  keeping  public  accounts  should 
be  explained  by  the  testimony  of  those  charged  with  the  duty  of 
keeping  them,  rather  than  by  the  calling  01  a  witness  who  may 
happen  to  be  acquainted  with  the  matter,  to  state  his  opinion  of 
the  effect.9 

1  Home  Ins.  Co.  v.  Watscn,  59  N.  Y.  390,  rev'g  4  Supm.  Ct.  (T.  <fe  C.)  226,  s.  o.  1 
Hun,  643  ;  and  see  Coventry  v.  Barton,  17  Johns.  142. 

8  Churchill  v.  Hunt.  3  Den.  321 ;  Gilbert  v.  Wiman,  1  N.  Y.  650  ;  Wright  v.  Whi- 
ting, 40  Barb.  235 ;  Weller  v.  Eames,  15  Minn.  461,  8.  c.  2  Am.  R.  190. 

8  Page  261  of  this  Tol. ;  and  see  Bridgeport  Ins.  Co.  v.  Wilson,  34  N.  Y.  275,  rev'g 
7  Bosw.  4?,7;   Taylor  v.  Barnes,  69  N.  Y.  430;    Thomas  v.   Hubbell,  15  N.  Y.  405 
rev'g  18  Barb.  9;  Fay  v.  Ames,  44  Barb.  327. 

4  As  to  the  nature  and  limits  of  the  liability  of  fiscal  officers,  see  Cent.  L.  J.  1877, 
p.  478  ;  16  Alb.  L.  J.  129 ;  Perley  v.  County  of  Muskegon,  32  Mich.  132,  s.  c.  20  Am. 
E.  637. 

6  Pages  169-202  of  this  vol. 

6  Fake  v.  Whipple,  39  N.  Y.  394,  affi'g  39  Barb.  339.  But  compare,  contra,  Bryan 
v.  United  States,  1  Black.  140. 

1  Nolley  v.  CaUoway  County  Court,  11  Mo.  447,  468. 

8  Bruce  v.  United  States,  17  How.  U.  S.  437  ;  United  States  v.  Eckford,  17  Pet. 
251. 

•  United  States  v.  Willard,  1  Paine,  539,  545.  For  the  peculiar  rules  facilitating 
proof  in  actions  against  defaulting  officers  of  the  United  States,  see  United  States  v. 
Eckford,  17  Pet.  251,  s.  c.  1  How.  U.  S.  250 ;  United  States  v.  Hodge,  13  How.  U.  S. 
478 ;  Watkins  v.  United  States,  9  Wall.  759 ;  United  States  v.  Eg^eston,  23  Int. 
Rev.  Rec.  113;  United  States  v.  Jones,  8  Pet.  375  <  Bruce  v.  United  States,  17  How. 
U.  S.  437;  United  States  v.  Ganssen,  19  Wall.  193  ;  Smith  v.  United  States,  5  Pet 
292,299;  Bleecker  v.  Bond,  3  Wash.  C.  Ct.  529;  Lawrence  v.  United  States,  2  Me 
Lean,  581. 


CHARTER-PARTIES.  517 

If  a  cause  of  action  matured  on  a  breach  of  the  bond,  no  de- 
mand need  be  proved.1 

III.  CHARTER-PARTIES. 

27.  General  rule  as  to  Oral  evidence  to  vary.] — The    rule 
that  oral  evidence  is  generally  inadmissible  to  enlarge  or  vary  the 
terms  of  a  contract  is  applied  to  charter-parties.2     But  if  the  lan- 
guage be  indefinite  or  ambiguous,  the  situation  of  the  parties 
may.be  shown  as  in  other  cases  for  the  purpose  of  ascertaining 
their  intent.3    Being  under  seal,  the  rule  excludes  evidence  to 
show  that  another  than  the  person  named  as  party,  was  the  prin- 
cipal for  the  purpose  of  enabling  him  to  sue  on  it.4    Though  the 
signer  be  described  as  agent  in  the  body  of  the  instrument,  yet  if 
he  signs  personally,  without  qualification,  he  may  be  held  liable, 
unless  it  appears  irom  the  other  portions  of  the  instrument  that 
he  did  not  intend  to  bind  himself  as  principal.5    But  evidence  of 
a  usage  of  trade  that  if  the  principal's  name  is  not   disclosed 
within  a  reasonable  time  after  signing  of  the  charter-party,  in 
such  case  the  broker  shall  be  personably  liable,  is  admissible.6    If 
the  charter-party  appears  to  have  been  executed  as  covering  the 
whole  subject-matter  of  a  previous  memorandum,  a  clause  in  the 
memorandum,  omitted  from  the  charter-party  is  merged ; 7  other- 
wise if  executed  only  in  part  performance  of  the  memorandum.8 
A  subsequent  agreement  by  parol  for  the  use  of  the  ship  at  a  per- 
iod before  the  charter-party  attaches,  may  be  proved.9 

28.  Usage™] — Where  local  usage  of  the  port  is  competent,  it 
is  no  objection  that  it  was  not  known  to  a  party  who  contracted 
in  such  form  as  to  be  subject  to  it.11 

29.  Terms;  Measurements;  Cargo;    Capacity.'] — A  usage  as 
to  terms,  &c.,  may  be  proved  if  the  charter-party  contemplates 
it, — as  whete  it  stipulates  for  u  the  usual  and  customary  terms,"  u 
or   "  regular  terms  of  loading  ; " 13 — but  not  otherwise  to  vary 


1  Albany  City  Fire  Ins.  Co.  v.  Devendorf,  43  Barb.  444 ;  School  District  No.  1  v. 
Lyford.  27  Wi*c.  606. 

*The  Eli  Whitney,  1  Blatch.  C.  Ct.  360;  The  Hermitage,  4  Id.  474,  and  see 
pages  296  nnd  433  of  this  vol. 

3  See  Almgren  v.  Dutilh,  6  N.  Y.  28. 

*  Humble  v.  Hunter,  12  Ad.  <fe  El.  N.  S.  (Q.  B.)  310,  and  see  page  298  of  this  vol. 
5  Ilaugh  v.  Manzanos,  27  Weekly  tt.  536 ;  compare  Hayn  v.  Clifford,  Id.  641. 

•  Hutchinson  v.  Tatham,  L.  R.  8  C.  P.  482. 

I  Renard  v.  Sampson,  12  N.  Y.  661,  affi'g  2  Duer,  285. 
»  Id. 

'  White  v.  Parkin,  12  East,  678.  So,  of  other  matters  of  agreement,  express  or 
implied,  extrinsic  to  the  contract.  Rose.  N.  P.  443 ;  citing  Fletcher  v.  Gillespie,  3 
Bing.  635. 

'*  As  to  the  mode  of  proof,  see  pages  296  and  485  of  this  vol. 

II  Robertson  v.  Jackson,  2  C.  B.  412. 

19  Roberts  .n  v.  Wait,  8  Exch.  299,  and  see  Rose.  N.  P.  445. 
13  Leidemann  v.  Schultz,  14  C.  B.  38;  23  L.  J.  C.  P.  17. 


518  ACTIONS  ON  SEALED  INSTRUMENTS. 

clear  and  unambiguous  language.1  But  even  ordinary  language, 
— such  as  "bale,  3  or  "full  and  complete  cargo,"8 — may  be  ex- 
plained by  evidence  that  in  the  shipping  usage  it  has  a  peculiar  or 
technical  meaning.  To  admit  evidence  of  technical  meaning  the 
phrase  need  not  be  on  the  face  of  it  ambiguous.4  So  if  the  char- 
ter-party is  indeterminate  as  to  the  place  of  measurement  of 
goods,  evidence  of  usage  is  competent/ 

The  testimony  of  experts  is  competent  on  the  question 
whether  a  ship  has  on  board  a  "  full  cargo." 6 

The  defendant  may  show  a  fraudulent  misrepresentation  of 
capacity,  made  by  plaintiff  at  the  time  of  hiring,  as  a  ground  of 
reducing  the  recovery,7  unless  inconsistent  with  the  terms  of  the 
instrument.8 

30.  Performance^ — Performance  or  waiver  must  be  affirma- 
tively established  by  the  plaintiff.9 

31.  Damages] — The  fact  that  a  party  to  a  charter-party  paid 
an  additional  price  for  goods  because  of  delay  consequent  on  its 
violation,  is  prima  facie  evidence  of  damage  to  that  extent 
without  proof  of  the  value  at  the  place  of  intended  sale,  and  en- 
titles him,  in  the  absence  of  evidence  to  the  contrary,  to  go  to  the 
jury.10    Breach  in  not  furnishing  a  cargo  being  shown,  the  bur- 
den is  thrown  on  defendant  to  show,  in  mitigation  of  damages, 
that  another  cargo  might  have  been  procured  by  the  use  of  or- 
dinary means  and  proper  opportunities  on  the  part  of  the  master 
or  owners.11 

32.  Demurrage,    or    damages  for  detention™]—  Where    lay 
days  are  to  commence  running  "  on  arrival,"  parol  evidence  is 
competent  to  show  what  is  commonly  understood  to  be  the  port ; 
and  this  evidence  may  extend  to  the  fact  that  in  the  case  of  a 
particular  class  of  ships  like  that  in  question,  the  lay  days  com- 
mence only  from  the  mooring  at  the  quay,  where  by  %the  regula- 


1  Phillipps  v  Briard,  1  II.  <fc  N.  21,  8.  c.  25  L.  J.  Exch.  233.  Compare  Brown  v. 
Byrne,  3  El.  <fe  Bl.  703,  s.  c.  L.  J.  23  Q.  B.  313;  Rose.  N.  P.  24. 

I  Taylor  v.  Briggs,  2  C.  <fe  P.  625. 

8  Cuthbert  v.  Gumming,  11  Exch.  405,  and  see  page  484  of  this  vol. 

4  Page  484  of  this  vol.    Myers  v.  Sari,  3  E.  <fc  E.  319  (per  BLACKBUBX,  J.) 

6  Bottomley  v.  Forbes,  5  Bing.  N.  C.  121. 

6  Ogden  v.  Parsons,  23  How.  U.  S.  167,  169. 

7  Johnson  v.  Miln,  14  "Wend.  195. 

8  Baker  v.  Ward,  3  Ben.  499. 

9  Roberts  v.  Opdyke,  40  N.  Y.  259,  affi'g  1  Robt.  287 ;  Rose.  N.  P.  443.     Compare 
Bowley  v.  U.  S.  8  (X  of  Cl.  187.      As  to  sea-worthiness,  compare  The  Vincennes,  3 
Ware,  171 ;  Werk  v.  Leathers,  1  Woods.  271 ;  Rose.  N.  P.  443;  Belham  v.  Benson,  1 
Gow.  45  ;  and  page  498  of  this  vol. 

10  Featherston  v.  Wilkinson,  L.  R.  8  Ex.  122,  s.  c.  4  Moak's  Eng.  493. 

II  Murrell  v.  Whiting,  32  Ala.  54,  67. 

19  Although  no  provision  be  made  in  the  contract  for  demurrage,  damages  in  the 
nature  of  demurrage  may  be  recovered  for  •  detention.  Morse  v.  Pesant,  3  Abb.  Ct, 
App.  Dec.  821. 


COVENANTS  FOR  TITLE.  519 

tions  of  the  port  she  only  could  discharge.1  But  if  the  written  ob- 
ligation is  to  land  the  cargo  at  a  specified  dock,  evidence  of  usage 
is  not  necessarily  competent  to  show  that  the  allowance  for  de- 
murrage does  not  begin  till  after  obtaining  a  berth.2  Parol  evi- 
dence is  held  not  admissible  to  show  usage  that  such  an  expression 
as  "to  be  discharged  in  fourteen  days,"  means  working  days,  and 
excludes  Sundays  and  custom-house  holidays.3 

IY.  COVENANTS  FOB  TITLE. 

33.  Implied  covenants.'] — By  statute  in  New  York 4  and  some 
other  States,  no  covenant  is  implied  in  any  conveyance  of  real 
estate.     But  leases  for  not  more  than  three  years  *  and  convey- 
ances of  incorporeal  hereditaments 6  are  not  within  this  rule. 

34.  Covenant  of  Warranty.'] — An   actual  eviction  or  ouster 
from  the  possession  of  the  whole  or  part  of  the  premises  con- 
veyed, by  force  of  a  paramount  title,  must  be  shown.7    Actual 
sale  under  judicial  process  is  sufficient  evidence  of  the  eviction.8 
The  judgment  is  in  any  case  competent  evidence  of  the  fact  of 
its  recovery ;  but  the  paramount  character  of  the  title  is  not 
proved  by  the  judgment,9  unless  defendant  was  a  party  or  privy 
to  the  judgment.     If  the  covenantor  was  not  a  party  on  the 
record  in  the  evicting  judgment,  the  judgment  will  still  be  con- 
clusive on  him,  if  distinct  and  unequivocal  notice  was  given  him 
expressly  requiring  him  to  appear  and  defend  the  adverse  suit, 
and  giving  him  reasonable  opportunity  to  do  so.10    If  such  notice 
appear  upon  the  record  of  that  suit,  the  court  may  instruct  the 
jury  that  the  recovery  in  that  suit  is^conclusive  on  the  present  de- 
fendant, as  if  he  had  been  a  party  on  the  record  in  the  former 
suit.     If  the  notice  do  not  thus  appear  on  the  record,  the  ques- 
tion of  the  conclusiveness  of  the  judgment  will  depend  upon  the 
belief  of  the  jury  as  to  the  reception  of  the  notice.11 


1  Norden  Steamship  Co.  v.  Dempsey,  L.  R.  1  C.  P.  Div.  654,  s.  o.  18  Moak's  Eng.  252. 
s  PhiL  Ac.  R.  R.  Co.  v.  Northam,  2  BCD.  1. 

3  See  Cochran  v.  Retberg,  3  Esp.  N.  P.  121.    Contra,  pages  297  and  366  of  this  voL 
Lying  days  mean  working  days.     Commercial  Steamship  Co.  v.  Boulton,  L.  R.  10  Q. 
B.  346,  s.  c.  13  Moak's  Eng.  288. 

4  1  N.  Y.  R.  S.  738,  §  140  (2  Id.  6th  ed.  1119).     So,  to  some  extent,  by  the  Amer- 
ican doctrine  of  the  common  law.     Frost  v.  Raymond,  2  Cai.  188  ;  Van  Rensselaer  T. 
Kearney,  11  How.  U.  S.  297, 322.     For  the  rule  as  to  implied  covenants,  in  case  of  a 
conveyance  made  in  one  State,  of  land  in  another, — see  Bethell  v.  Bethell,  54  Ind.  428, 
8.  c.  23  Am.  R.  650. 

5  Moffet  v.  Strong,  9  Bosw.  57 ;  Lynch  v.  Onondaga  Salt  Co.  64  Barb.  658. 

6  Mayor,  Ac.  of  N.  Y.  v.  Mabie,  13  N.  Y.  151,  rev^g  2  Duer,  401. 

7  Blydenburgh  v.  Cotheal,  1  Duer,  176,  195,  and  cases  cited. 

8  Cowdrey  v.  Coit,  44  N.  Y.  382,  rev'g  3  Robt.  210.     Compare  Furnas  v.  Durgin, 
119  Mass.  500,  8.  o.  20  Am.  R.  341. 

9  On  this  subject,  see  also  page  261  of  this  vol. 

10  Rawle  on  Cov.  232.  The  requirement  of  an  express  request  is  not  sanctioned 
by  many  of  the  authorities,  see  Somers  v.  Schmidt,  24  Wise.  417,  and  page  261  of  this 
voL 

"Id. 


520  ACTIONS  ON  SEALED  INSTRUMENTS. 

If  the  record  of  the  former  action  does  not  exhibit  on  its  face 
the  title  under  which  the  recovery  was  had,  the  plaintiff  in  the 
present  action  must,  notwithstanding  proper  notice  has  been 
given,  prove  that  such  title  did  not  accrue  subsequently  to  the 
deed  to  himself.1 

If  plaintiff  does  not  rely  on  the  judgment  as  evidence  of 
the  adverse  title,  he  need  not  prove  that  defendant  had  notice  of 
the  suit. 

35.  —  of  Seizin  and  Right  to  Convey.'} — Unless  plaintiff  avers 
a 'particular  defect,  in  a  form  entitling  defendant  to  rely  on  his 
proving  it,  the  burden  is  on  defendant  to  prove  the  seizin  denied 
by  the  plaintiff ;  for  defendant  rather  than  plaintiff  is  presumed 
acquainted  with  the  state  of  the  title.2    The  true  consideration, 
and  its  non-payment,  may  be  shown  by  parol,  notwithstanding 
the  receipt  for  a  different  consideration  in  the  deed.8 

36.  —  against  2ncumbrances.~\ — The  burden  is  on  plaintiff  to 
prove  the  incumbrance.4    The  injury  sustained  must  be  indicated 
in  the  pleading  to  admit  evidence  of  special  damage.5    Extrinsic 
evidence  that  the  parties  did  not  intend  the  covenant  to  extend 
to  a  particular  incumbrance  not  specified,  or  did  intend  it  to  ex- 
tend to  one  which  is  excepted,  is  not  competent.6    But  on  the 
question  of  what  is  an  incumbrance,  within  the  meaning  of  the 
covenant,  evidence  of  the  surrounding  circumstances,  of  the  re- 
lation of  the  parties  to  the  subject  of  the  conveyance,  of  notice  to 
the  purchaser,  and  of  local  usage,  if  any,  is  competent.7    Evidence 
of  declarations  of  a  former  owner,  made  during  his  ownership 
and  tending  to  prove  existence  of  a  right  of  way  admitted,  is 
competent  against  the.  present  owner;    but  such   declarations, 
tending  to  disprove  the  existence  of  the  right  of  way  are  incom- 
petent in  favor  of  the  present  owner..8    If  the  breach  consists  in 
an  incumbrance  of  record, — such  as  a  judgment 9  or  a  tax  sale,10 — 
the  record,  or  the  material  part  of  it,  must  be  produced  or  ac- 
counted for. 

37.  — for  Quiet  Possession  or  Enjoyment.] — The  burden  is 
on  plaintiff  to  show  eviction,  actual  or  constructive,11  unless  de- 
fendant has  assumed  the  burden  of  proof  by  affirmative  allega- 
tions in  his  answer.     A  purchaser  is  presumed  to  know  what  the 


1  Rawle  on  Cov.  232. 

•  Potter  v.  Kitchen,  6  Bosw.  572.  and  cases  cited ;  Rawle  on  Cov.  84,  87. 
8  Biqgham  v.  Weiderwax,  1  N.  Y.  509. 

«  Rawle  on  Cov.  114. 

*  Id.  116. 

8  Harlow  v.  Thomas,  15  Pick  66;  Rawle  on  Oov.  119,  120,  n. ;  12  Moak"s  Eng. 
R.  248,  n. 

'  Raw!  eon  Cov.  113. 

8  Blake  v.  Everett,  1  Allen,  248. 

9  Waldo  v.  Long,  7  Johns.  173  ;  Cooper  v.  "Watson,  10  Wend.  202. 
10  Kennedy  v.  Newman,  1  Sandf.  187. 

»  Rawle  oo  Cov.  194. 


COVENANTS  FOR  TITLE.  521 

property  is  which  he  buys,  unless  deception  is  practiced  upon 
him.1  JPlaintiff  need  not  show  that  the  paramount  title  was 
established  by  judgment.2  The  judgment  against  the  plaintiff  is 
competent  evidence  against  defendant ; s  but  if  he  relies  on  his 
surrender  without  judgment,  he  must  show  that  the  title  was 
paramount,  and  could  not  justly  have  avoided  yielding.4  It  is 
not  enough  to  show  that  the  defendants  had  notice  of  the  claim 
against  him.5 

1  Spoor  v.  Green,  L.  R.  9  Ex.  99,  8.  c.  8  Moak's  Eng.  540. 
*  McGary  v.  Hastings,  39  Cal.  360,  s.  c.  2  Am.  R.  456. 

3  Rickert  v.  Snyder,  9  Wend.  416;  and  see  preceding  paragraphs. 

4  Rawle  on  Cov.  150. 

8  Kelly  v.  Dutch  Church,  2  Hill,  106 


CHAPTER  XXVIII. 

ACTIONS  ON  LEASES. 

1.  Allegation  of  lease.  13.  Possession  not  esssentiaL 

2.  Mode  of  proving  the  contract.  14.  Tenant's  estoppel, 
8.  Conditional  delivery.  15.  Adverse  title. 

4-  General  rule  as  to  oral  evidence.  16.  Forfeiture. 

5.  Parties.  17.  Assignment. 

6.  Usage.  18.  Demand. 

7.  Practical  construction.  19.  Repairs. 

8.  Implied  covenants.  20.  Surrender. 

9.  Identifying  the  premises.  21.  Apportionment. 

10.  The  date  and  term.  22.  Payment. 

11.  Rate  of  rent.  23.  Eviction. 

12.  Plaintiff's  title.  24.  Waste. 

1.  Allegation  of  leased] — Under  the  new  procedure  a  written 
contract  is  admissible  in  evidence  tinder  a  general  allegation  that 
the  party  contracted,  without  indicating  how,1  and  conversely  if 
the  allegation  is  of  a  written  contract,  evidence  of  an  oral  con- 
tract, if  valid,  is  admissible  by  an  amendment,2  unless  the  ad- 
verse party  is  surprised.  At  common  law,  a  parol  contract  is  not 
admissible  under  an  allegation  of  a  specialty;8  but  the  variance 
may  be  cured  by  amendment,4  if  defendant  has  not  been  misled 
to  his  prejudice.  Even  if  the  action  is  for  use  and  occupation, 
the  court  may  allow  a  lease  to  be  proved  under  amendment,  and 
a  recovery  thereon  had  ;5  and  conversely,  if  the  action  is  on  a 
deed,  recovery  for  use  and  occupation  may  be  had  by  amend- 
ment.6 Under  an  allegation  describing  the  lease  as  for  the  orig- 
inal term,  the  lease  may  be  admitted  in  evidence,  though  ex- 
tended by  virtue  of  a  covenant  therein  contained,  for  an  addi- 
tional period  and  at  a  different  rent.7 

Compliance  with  the  statute  of  frauds  need  not  be  alleged, 
but  if  the  contract  is  denied  or  the  statute  of  frauds  pleaded, 
compliance  must  be  proved.8 


1  Note  8  below,  and  see  Tuttle  v.  Flannegan,  54  N.  Y.  686,  affi'g  4  Daly,  92. 

2  Thomas  v.  Nelson,  4  Law  &  Eq.  Rep.  40  ;  Houghton  v.  Koetiig,  18  <J.  B.  235. 
'Phillips  &  Colby  Construction  Co.  v.  Seymour,  91  U.  S.  (1  Otto),  646.     Com- 
pare Rose.  N.  P.  343;  Dougherty  v.  Matthews,  35  Mo.  520,  528. 

4  Houghton  v.  Koenig,  18  C.  B.  2«8. 

6  Bedford  v.  Terhune,  30  N.  Y.  453,  affi'g  1  Daly,  371  ;  and  see  page  352  of  this 
vol. 

6  Houghton  v.  Koenig  (above). 

1  Phelps  v.  Van  Dusen,  8  Abb.  Ct.  A  pp.  Dec.  604. 

8  Marston  v.  Sweet,  66  N.  Y.  206,  rev'g  4  Hun,  156.  The  mode  of  proving  a 
memorandum  which  satisfies  the  statute  has  already  been  indica'.ed,  p.  292  of  this 
vol.  And  see  Baumann  v.  James,  L.  R.  3  Ch.  App.  508 ;  Hand  v.  Hall,  25  Weekly 
R.  734,  s.  o.  L.  R.  2  Exch.  D.  855;  Chretien  T.  Donney,  1  N.  Y.  419;  Western 
Trans.  Co.  v.  Lansing,  49  N.  Y.  499. 

[522] 


ACTIONS  ON  LEASES.  523 

2.  Mode  of  proving  the  contract.'] — Where  a  lease  may  be 
proved  by  parol,  the  fact  and  terms  of  tenancy  may  be  shown  by 
evidence  that  plaintiff  informed  defendant  what- they  would  be  if 
he  occupied,  and  that  he  thereafter  did  so  without  dissent.1  A 
memorandum  of  terms,  read  over  at  the  time  of  contract,  and 
assented  to,  may  be  put  in  evidence,  or  may  be  used  to  refresh 
the  memory  of  a  witness.*  But  such  an  unsigned  paper,  though 
read  or  delivered  as  a  description  of  the  premises,  or  a  staternent 
of  terms  of  letting,  is  not  necessarily  such  a  contract  in  writing 
as  to  be  the  primary  evidence,  and  exclude  oral  proof.8 

The  fact  of  tenancy  is  conclusively  proved  by  an  adjudication 
in  summary  proceedings  between  the  same  parties,  to  recover 
possession  for  non-payment  of  rent.4 

If  a  written  contract  is  to  be  proved,  the  mode  of  proof  is 
governed  by  rules  already  stated.5 

If  the  instrument  be  in  duplicates,  each  containing  the  whole 
contract,  each  is  primary  evidence  against  the  one  who  signed  it  ;6 
and  the  production  of  the  one  signed  by  defendant,  is  enough, 
without  producing  or"  accounting  for  the  other  duplicate.7  If 
one  party  produces  one  of  the  duplicates  signed  by  the  other 
party,  the  presumption  its,  that  the  other  part,  signed  by  himself, 
is  in  the  hands  of  the  other  party.8 

If  the  lease  is  in  counterparts,  one  containing  the  stipulations 
on  the  part  of  the  lessor  only,  the  other  those  on  the  part  of  the 
lessee,  both  must  be  produced  or  accounted  for  if  required,9 
whenever  the  whole  contract  is  material.  If  the  -action  is  on  the 
covenant  of  the  defendant  only,  the  production  and  proof  of  the 
part  signed  by  him  containing  it,  is  enough,  without  the  counter- 
part signed  by  the  covenantee,10  unless  the  terms  of  the  counter- 
part become  material.  The  existence  of  the  other  may  be  pre- 
sumed in  the  first  instance ; u  and  this  presumption  excludes  oral 


1  Despard  v.  Walbridgc,  15  N.  Y.  374. 
1  Bolton  v.  Tomlin,  5  Ad.  <fe  El.  856. 

I  Ramsbottom  v.  Tunbridge,  2  M.  &  S.  434 ;    Trewhitt  v.  Lambert,  10  Ad.  <fe  El. 
470.     And  see  Bolton  v.  Tomlin,  6  Ad.  <fc  El.  856. 

4  Jarvis  v.  Driggs,  69  N.  Y.  143.     Contra,  Boiler  v.  Mayor,  «fec.  of  N.  Y.  40 
Super.  Ct.  (J.  <fe  S.)  523.     In  Evans  v.  Post,  5  Hun,  338,  it  was  held  that  the  adjudi- 
cation was  not  le<jcal  evidence  of  the  tenancy. 

5  For  handwriting,  see  pp.  391-401  of  this  vol. ;  for  rules  applicable  t  o  sealed  and 
witnessed  instruments,  see  p.  498;  for  rules  applicable  to  corporate  contracts,  see 
p.  84,  Ac.     Under  the  statute  of  frauds  an  agent's  authority  must  be  in  wilting.    Post 
v.  Martens,  2  liobt.  437.     But  may  be  proved  by  admission.     Blood  v.  Goodrich,  12 
Wend.  625. 

6  See  Lewis-  v.  Payn,  8  Cow.  71. 

1  Hallett  v.  Collins,  10  How.  U".  S.  174,  184;  page  288  of  this  vol.;  and  1 
Greenl.  Ev.  13  ed.  120. 

8  Hallett  v.  Collins  (above). 

•  Dobbin  v.  Wntkin,  Col.  <fc  C.  Cas.  39,  8.  o.  3  Johns.  Cas  2  ed.  415.  Contra, 
Houston  v.  Koenig,  18  C.  B.  238 ;  Doe  d.  West  v.  Davis,  7  East,  363. 

10  Gates  v.  Graham,  12  Wend.  55;  Houghton  v.  Koeuig,  18  C.  B.  235;  Woodf 
85,  676.  And  see  Pearse  v.  Morris,  3  B.  <fc  Ad.  866.  Compare  p.  288  of  this  voL 

II  Cloves  v.  Willoughby,  7  Hill,  83;  Mayer  v.  Moller,  1  Hilt.  491. 


524:  ACTIONS  ON  LEASES. 

evidence  in  substitution  for  it,  unless  its  absence  is  accounted 
for ;  and  equally  excludes  oral  evidence  in  variance  of  it.1  De- 
fendant may  show  that  no  counterpart  was  executed.2 
•  A  discrepancy  between  duplicates  may  be  explained  by  parol 
evidence,  showing  a  mistake  in  one.8  But  an  essential  discrep- 
ancy between  two  counterparts,  one  of  which  is  the  consideration 
for  the  other,  BO  that  the  contract  cannot  be  proven  without 
both,  is  fatal,  if  the  writing  is  essential  under  the  statute  of 
frauds.4  The  rules  as  to  proving  modifications  of  such  contracts, 
have  been  already  stated.5 

3.  Conditional  delivery. ~\ — If  the  contract  was  in  writing,  evi- 
dence of  an  oral  agreement  that  it  was  to  have  no  effect,  or  none 
except  on  a  condition  which  has  never  happened,6  is  admissible ; 
but  evidence  of  an  oral  agreement  that  it  was  to  have  only  a  par- 
tial effect,  is  not.7 

4.  General  rule  as  to  oral  evidence  to  vary.~] — Oral  evidence 
is  not  competent  (in  the  absence  of  fraud  or  mistake)  to  show 
that  the  parties  stipulated,  at  or  before8  the  execution  of  the 
writing,  for  something  contrary  to  what  is  there  expressed,  or  to 
what  is  legally  implied.9     But  a  collateral  agreement  may  be 
made  in  consideration  of  one  of  the  parties  .executing  the  lease 
although  under  seal,  and  may  be  proved  by  parol  if  it  is  not 
contradictory  to  the  terms  of  the  deed  itself.10    So  an  oral  agree- 


1  Claves  v.  Willoughby,  7  Hill,  83;  Mayer  v.  Holler,  1  Hilt.  491. 
s  Woodf.  676. 

3  McNulty  v.  Prentice.  25  Barb.  204. 

4  Compare  Burchell  v.  Clark,  2  C.  P.  Div.  602,  8.  c.  18  Moak's  Eng.  232. 

5  See  pp.  314  and  503  of  this  vol. 

6  For  instance,  the  approval  of  a  third  person.     6  El.  <fe  B.  370,  374;  Wallis  v. 
Littell,  11  C.  B.  N.  S.  369. 

1  For  instance,  that  it  was  made  only  for  the  purpose  of  securing  a  license,  and 
was  to  determine  as  soon  as  the  premises  could  be  sold.  2  Fost.  <fe  F.  86. 

8  Brigham  v.  Rogers,  17  Mass.  571 ;  D'Aquin  v.  Barbour,  4  La.  Ann.  441. 

9  See  this  subject  on  p.  295  of  this  vol.      As  for  instance,  that  certain  repairs 
were  to  be  made  by  the  plaintiff,  (Mayor,  <fec.  of  N.  Y.  v.  Price,  5  Sandf.  542;  Brig- 
ham  V.Rogers  [above];    Mayor  v.  Moller,   1   Hilt.  491 ;  contra,  Mann  v.  Munn,  L. 
J.  43  C.  P.  241);  or  that  lights  were  not  to  be  obstructed,  (Johnson  v.  Oppenheim,  55 
N.  Y.  280,  affi'g  35   Super.  Ct.  [3  J.  &  S.]  440);  or  that  a  covenant  in  restraint  of 
occupation,  should  not  be  enforced  so  long  as  occupation  should  be  orderly,  (Dodge 
v.  Lambert,  2  Bosw.  570,  579).    So  where  a  mining:  lease  fixes  a  price  for  the  coal 
mined,  it  is  inadmissible  to  prove  by  parol,  that  when  the  lease  was  preparing,  the 
quantity  of  coal  to  be  mined  under  the  lease  was  omitted  at  the  request  of  the  de- 
fendant (the  lessee),  and  that  he,  the  lessee,  then  agreed  to  mine  all  that  he  could 
dispose  of,  the  lease  containing  no  such  provision.     Lyon  v.  Miller,  24  Penn.  St.  392. 

10  Erskine  v.  Adeane,  L.  R.  8  Ch.  App.  756,  s.  c.  6  Moak's  Eng.  594.  Thus,  where 
to  induce  a  tenant  to  si<;n  a  lease  which,  like  other  leases  on  the  estate,  reserved  a1! 
game,  etc.,  and  the  right  to  preserve  and  shoot,  the  lessor  promised,  that  after  a  cer- 
tain letting  should  shortly  expire,  all  game  should  be  killed  down,  etc. — Held,  that 
parol  evidence  of  this  was  admissible.  Id.  s.  p.  Remmington  v.  Palmer,  62  N.  Y. 
81,  rev'g  1  Hun,  619,  s.  c.  4  Supm.  Ct.  (T.  &  C  )  696.  Compare  Dubois  v.  Kellv,  10 
Barb.  496;  Morgan  v.  Griffith,  L.  R.  6  Exch.  70;  Angell  v.  Duke,  32  L.  T.  N.  S. 
320,  Q.  B. ;  Steph.  Ev.  90.  A  part  of  the  apparent  conflict  in  the  decisions  may  be 
explained,  if  we  observe  that  it  is  one  question,  whether  such  a  collateral  agreement 


ACTIONS  ON  LEASES.  525 

ment  to  which  the  instrument  was  subsidiary,  being  given  in  part 
execution  of  it  may  be  proved.1  So  evidence  of  possession  under 
an  oral  agreement,  prior  to  the  term  fixed  in  the  written  agree- 
ment, is  competent,  for  the  one  does  not  contradict  the  other, 
although  they  were  made  simultaneously.2  Nor  does  the  rule  ex- 
clude parol  evidence  of  the  representations  made  as  a  part  of  the 
negotiation,  if  adduced,  not  for  the  purpose  of  varying  the  terms 
of  the  writing,  but  of  showing  deceit,8  or  the  effect  those  terms 
would  have  had  if  the  representations  had  been  true.4  Evidence 
of  the  surrounding  circumstances  is  competent,  as  in  the  case  of 
other  contracts.5 

5.  Parties."] — If  the  lease  was  made  by  plaintiffs,  in  their 
individual  names,  a  recital  that  they  were  acting  as  a  committee 
by  authority  of  a  corporate  body,  does  not  prevent  them  from 
recovering.      The  principle  that  the  lessee  cannot  dispute  his 
lessor's  title  applies.6    The  fact  that  the  landlord  has  taken  sum- 
mary proceedings  under  the  statute,  against  a  third  person,  to 
recover  possession  of  the  premises,  does  not  preclude  him  from 
showing  that  the  defendant  was,  in  fact,  his  lessee,  or  liable  to 
him  under  an  agreement  creating  a  tenancy.7     The  landlord  may 
recover  if  his  action  is  on  an  express  covenant  to  pay  rent,  though 
prior  to  the  accruing  of  the  ?ent  sued  for,  a  renewal  of  the  lease 
was  assigned  to  third  persons,  and  the  plaintiff  accepted  subse- 
quent rent  from  them.8 

6.  Usage.~] — In  respect  to  matters  on  which  the  written  agree- 
ment is  silent,9  as  well  as  in  ascertaining  the  proper  interpretation 
of  language  not  having  a  fixed  legal  meaning,1"  every  demise  is 
open  to  explanation  by  the  general  usage  and  custom  of  the 
country,  or  of  the  district  where  the  land  lies.      Every  person, 
under  such  circumstances,  is  supposed  to  be  conversant  of  the 
custom,  and  to  contract  with  a  tacit  reference  to  it.11 


may  be  proved  for  the  purpose  of  sustaining  an  action  for  its  breach ;  and  a  different 
question,  whether  it  may  be  proved  for  the  purpose  of  defeating  an  action  on  the 
written  lease. 

1  Hope  v.  Balen,  68  N.  Y.  380,  affi'g  36  Super.  Ct.  (J.  <fr  S.)  458. 

9  Hubbell  v.  Clark,  1  Hilt.  67. 

3  Allaire  v.  Whitney,  1  Hill,  484  ;  Whitney  v.  Allaire,  1  N.  Y.  305,  nffi'g  4  Den.  654. 

4  Sharpy.  Mayor,  <tc.  of  N.  Y.  40  Barb.  256,  s.  c.  25  How.  Pr.  389. 

5  See,  for  instance,  Ayer  v.  Kobbe,  59  N.  Y.  454,  affi'g  36  Super.  Ct.  (J.  <fe  S.)  168. 
«  Stott  v.  Rutherford,  93  U.-S.  (2  Otto),  107.     And  see  Dolby  v.  lies,  11  Ad.  <fc 

El.  835;  Churchward  v.  Ford,  2  H.  &  N.  446;  L.  J.  26  Ex.  354.  The  rules  as  to 
ornl  evidence  to  show  the  real  party  in  interest  in.  agreements  under  seal,  and  not 
under  seal  respectively,  are  stated  at  pp.  298-301  and  498  of  this  vol.  See,  also, 
Mason  v.  Breslin,  2  Sweeny,  886,  895  ;  Jackson  v.  Foster,  12  Johns.  488. 

7  La  Forge  v.  Park,  1  Edm.  223. 

8  Phelps  v.  Van  Dusen,  3  Abb.  Ct.  App.  Dec.  604. 

9  Van  Ness  v.  Packard,   2  Pet.   137,  148;    Mangum  v.  Farrington,  1  Daly,  236, 
238  ;  and  see  pp.  296,  365  and  501  of  this  vol. 

10  See,  for  instance,  Clayton  v.  Gregson,  4  Nov.  «t  M.  602 ;    Wilcox  v.  "Wood,  9 
"Wend.  346  ;  and  see  p.  485  of  this  vol. 

11  So  held  of  a  usage  allowing  a  tenant  to  remove  his  building.      Van  Ness  v. 
Packard  (above). 


526  ACTIONS  ON  LEASES. 

7.  Practiced  construction.'] — An  agreement  additional  to  the 
stipulations  of  the  lease,  may  be  inferred  from  the  repeated  de- 
mand of  one  party  and  compliance  therewith  by  the  other,  on  a 
point  on  which  the  lease  is  silent, — for  instance,  the  time  when 
rent  is  payable,1 — but  if  the  lease  expresses  the  obligation,  the 
conduct  of  the  parties  in  departure  from  it,  is  not  evidence  of 
a  contrary  agreement.2    An  unambiguous  instrument  cannot  be 
varied  by  evidence  of  the  adverse  party's  declarations  of  his  un- 
derstanding of  its  terms,  nor  of  his  practical  concessions  during 
a  former  quarter,8  unless  the  evidence  establishes  an  estoppel. 

8.  Implied  covenants.'] — A  covenant  for  quiet  enjoyment  is 
implied  in  every  mutual  contract  for  the  leasing  and  demise  of 
land  by  whatever  form  of  words  the  agreement   is   made,4  un- 
less it  contains  an  express  covenant  on  the  subject.5    This  cove- 
nant means  only  that  tenant  shall  not  be  evicted  by  paramount 
title.6 

There  is  usually,  also,  an  implied  warranty  of  title  or  power 
to  demise,  in  leases  containing  no  express  covenant7  (except,  by 
statute,  leases  exceeding  three  years8) ;  and  the  existence  and  ex- 
tent of  the  covenant  depend  on  the  words  of  demise.9 

In  a  lease  of  real  property  only,  the  common  law  raises  no 
implied  warranty  of  tenantableness  or  fitness  for  use,10  (although 
it  may  be  otherwise  of  a  lease  of  a  furnished  house,11  or  of  chat- 
tels); nor  is  there  any  implied  covenant  to  repair12  or  to  main- 
tain.13 Where  the  contract  of  hiring  contains  no  warranty,  ex- 
press or  implied,  that  the  premises  are  fit  for  the  purpose  for 
which  they  are  hired,  the  declarations  of  the  lessor  to  that  effect, 
made  at  the  time  of  the  hiring,  do  not  prove  a  contract.14 

A  covenant  on  the  part  of  the  lessee  to  use  the  prem- 
ises .<in  a  proper  manner,  is  implied  in  absence  of  any  express 
covenant.13 


1  Long  Island  R.  R.  Co.  v.  Marquand,  6  N.  Y.  Leg.  Obs.  160. 

*  Giles  v.  Comstock,  4  N.  Y.  270.      But  their  conduct  may  be  evidence  of  their 
understanding  of  ambiguous  terms.     See  Pease  v.  Christ,  31  N.  Y.  141. 

3  Bigelow  v.  Collamore,  6  Cush.  226. 

4  Mack  v.  Patchin,  42  N.  Y.  167  (and  cases  cited),  affi'g  29  How.  Pr.  20. 

5  Burr  v.  Sienton,  43  N.  Y.  462. 

6  Howard  v.  Donlittle,  3  Dner,  464. 

*  Vandekarr  v.  Vandekarr,  11  Johns.  122 ;  Rawle  on  Cov.  462-8. 

8  Moffat  v.  Strong,  9  Bosw.  67,  and  see  page  519  of  this  vol. 

9  Grannis  v.  Clark,  8  Cow.  86. 

10  McGlashan  v.  Tallmadgc,  87  Barb.  313,  and  cases  cited;    Mayer  v.  Moller,  1 
HUt.  491 ;  Erskino  v.  Adeane,  L.  R.  8  Ch.  756,  761. 

11  Compare  Ceesar  v.  Karutz.  60  N.  Y.  229 ;  Wallace  v.  Lent,  1  Daly,  481 ;  Wilson 
v.  Finch-H&tton,  L.  R.  2  Ex  D.  336,  and  cases  cited  in  16  Alb.  L.  J.  195;  17  Id.  208; 
Button  v.  Gerrish,  9  Cush.  (Mas".)  94. 

12  Howard  v.  Doolittle,  3  Duer,  464. 

13  Erskine  v.  Adeane,  L.  R.  8  Ch.  756,  762 ;  and  see  Gallup  v.  Albany  Railw.  Co. 
65  N.  Y.  1. 

14  Dutton  v.  Gerrish,  9  Cush.  (Mass.)  89,  94 ;  Schermerhorn  v.  Gouge,  13  Abb.  Pr. 
815.     Compare  paragraph  4,  n.  4. 

15  Woodf.  123. 


ACTIONS  ON  LEASES.  527 

9.  Identifying  the  premise^ — If  the  designation  of  the  prem- 
ises is  ambiguous, — as,  for  instance,  where  a  street  number  only 
is  used  in  the  lease  of  a  house,  without  indicating  whether  it  was 
intended  to  include  a  yard  or  an  alley,1  or  where  a  building  is 
leased  as  a  "Hotel,"  without  indicating  whether  shops  on  the 
ground  floor  were  included  or  not,2 — oral  evidence  of  the  dec- 
larations of  the  parties  at  and  before  the  execution  of  the  writing, 
and  of  the  usage  of  language,  &c.,  is  admissible.     A  variance  in 
the  location 3  or  quantity 4  or  land  held  by  an  assignee  of  part  of  ' 
the  premises,  is  not  necessarily  fatal. 

10.  The  Date  and  Term.} — Parol  evideriee  is  admissible  to 
show  the  date  of  delivery  of  a  lease,  though  the  effect  be  to  fix 
a  different  time  than  that  expressed  in  the  lease ; 5  and  a  mistake 
in  a  date  may  be  corrected  by  parol.     In  the  absence  of  any  evi- 
dence to  the  contrary,  if  a  lease  is  expressed  to  take  effect  in 
presenti^  and  possession  under  it  is  averred,  the  prima  facie  pre- 
sumption is  that  the  lease  and  possession  of  the  premises  were 
delivered  on  the  day  of  the  date  of  the  lease.6 

In  tenancies  under  agreements  mentioning  no  time,  and  not 
reserving  an  annual  rent,  the  period  fixed  for  payment  of  rent, 
as  monthly  or  weekly,  &c.,  implies  that  the  tenancy  is  of  the 
same  duration,7  unless  otherwise  regulated  by  statute,  as  in  the 
city  of  New  York.8  The  fact  that  a  notice  to  quit  on  a  day 
specified  was  served  personally  on  the  tenant,  and  that  he  made 
no  objection  to  the  time,  is  prima  facie  evidence  which  sus- 
tains a  finding  that  the  tenancy  commenced  and  ended  at  that 
period.9 

Where  a  lease  is  from  a  day  named,  proof  of  a  local  custom 
that  the  term  commences  at  noon  of  that  day,  and  terminates  at 
noon,*is  admissible  ;  for  custom  is  good  to  authorize  taking  pos- 
session under  a  lease.10  A  lessee  sued  for  rent,  upon  his  covenant, 
is  not  estopped  by  the  covenant  from  showing  that  the  lessor's 
estate  ended  before  the  rent  accrued.11 

11.  Kate  of  Rent^\ — If  the  rent  is  not  fixed  by  writing,  it  is 


1  Gary  v.  Thompson,  1  Daly,  85  ;  People  ex  rel.  Murphy  v.  Gedney,  10  Hun,  151. 

9  Sargent  v.  Adams,  3  Gray,  72,  77.     So  where  the  agreement  was  that  "  the 
present  lessee  and  occupant  of  the  first  floor,"  <fec.,  might  "  continue  to  use"  the  same, 
it  being  conceded  that  he  did  not  have  a  literally  exclusive  possession  of  the  whole 
first  floor,  parol  evidence  was  admitted  to  show  what  he  actually  used  and  occupied 
before  the  agreement  was  executed.     Steffens  v.  Collins,  6  Bosw.  223;  and  see  Cor- 
bett  v.  Costello,  8  La.  Ann.  427. 

3  Rose.  N.  1».  342. 

Van  Rensselaer  v.  Jones,  2  Barb.  643,  654. 
Steele  v.  Mart,  4  B.  A  C.  272. 
Rhone  v.  Gale,  1 2  Minn.  54. 
Steffens  T.  Earl,  40  N.  J.  L.  (Vroom),  128. 
1  N.  Y.  R.  S.  744,  81. 
Doe  v.  Forster,  13  East,  405  ;  Doe  v.  Briggs,  2  Taunt.  109. 

10  Wilcox  v.  Wood.  9  Wend.  346. 

11  Lamson  v.  Clarksoo,  113  Mass.  348,  s.  c.  18  Am.  R.  498. 


528  ACTIONS  ON  LEASES. 

to  be  ascertained  on  principles  stated  in  respect  to  actions  for  use 
and  occupation.  If  the  agreement  was  in  writing,  oral  evidence 
that  the  rent,  even  for  a  particular  season,  was  fixed  by  the  par- 
ties at  a  different  rate  from  that  stated  in  the  writing,  is  inadmis- 
sible.1 The  fact  that  rent  was  due,2  but  not  the  amount,8  may  be 
proved  by  an  adjudication  in  summary  proceedings  between  the 
same  parties,  to  recover  possession  for  non-payment.  The-  amount 
may  be  proved  by  a  judgment  between  the  same  parties,  for  the 
rent  of  the  same  premises  for  a  previous  quarter.4 

12.  Plaintiff'' s  title.'] — Where  the  lessor  sues,  the  lease,5  or 
the  fact  of  possession  under  an  agreement  of  tenancy,6  or  even  the 
payment  of  rent 7  under  it,  is  sufficient  evidence  of  his  title.     In 
an  action  against   the  tenant,  by  one  claiming  the  reversion, 
plaintiff  should  prove  his  derivative  title  ; 8  and  if  the  lessor  had 
only  a  particular  estate,  must  show  its  commencement,  and  the 
authority  to  grant  the  lease.9 

13.  Possession  not  essential.'] — If    an    express    covenant  is 
proved,  an  action  for  the  rent  does  not  require  from  plaintiff 
proof  of  the  fact  of  occupation  or  enjoyment,  but  the  action  may 
be  maintained  though  the  tenant  abandoned  possession.10 

14.  Tenanfs  estoppel.'] — A  tenant  who  has  entered  into  pos- 
session,11 or  who,  without  actual  possession,  has  had  a  permissive 
potential  possession,12  whether  under  a  written 13  or  an  oral  lease,14 


1  Patterson  v.  O'Hara,  2  E.  D.  Smith,  28.    Compare  Preston  v.  Mercereau,  2  W. 
BL  1249 ;  Remmington  v.  Palmer,  62  N.  Y.  31,  rev'g  1  Hun,  619,  s.  c.  4  Supm.  Ct.  (T. 
&  C.)  696. 

2  Jarvis  v.  Driggs,  69  N.  T.  143. 

8  Id.     Contra,  Brown  v.  Mayor,  <fec.  of  N.  Y.  6  Daly,  481. 
4  Kelsey  v.  Ward,  38  N.  Y.  83. 

6  Lush  v.  Druse,  4  Wend.  313 ;  Rose.  N.  P.  343. 
*Id. 

7  Chapman  v.  Beard,  3  Anstr.  942. 

8  Schott  v.  Burton,  13  Barb.  173  ;  Tayl.  L.  &  T.  482. 
»  Woodf.  687. 

10  Gilhooley  v.  "Washington,  4  N.  Y.  217,  affi'g  3  Sandf.  330.    Otherwise,  in  an  ac- 
tion for  use  and  occupation.     Id. 

11  Otherwise,  if  he  merely  attorned  by  mistake.     Rose.  N.  P.  335.    And  see  2  Abb. 
N.  Y.  Dig.  new  ed.  809. 

14  6  Am.  Law  Reg.  19. 

13  Blight  v.  Rochester,  7  Wheat.  535. 

14  The  main,  if  not  the  only  foundation  of  the  rule  (as  to  oral  leases).is  in  the  in- 
justice of  allowing  one  who  obtained  possession  by  admitting  the  title  of  another,  to 
deny  that  title,  and  in  case  of  failure  of  proof  of  it,  to  hold  the  premises  himself. 
Hilbourn  v.  Fogg,  99  Mass.  12;    MoflFat  v.  Strong,  9  Bosvv.  57;  Art.  in  6  Am.  Law 
Rev.  1.     In  the  case  of  a  written  lease,  there  is  the  additional  sanction  of  his  formal 
covenant,  without  violating  which  he  cannot  set  up  the  title  of  another.     Blight  v. 
Rochester,  7  Wheat.  535.     For  the  history  of  the  technical  origin  of  these  estoppels, 
see  6  Am.  L.  Rev.  1.     In  the  case  of  an  indenture,  as  distinguished  from  a  deed  poll, 
whatever  force,  if  any,  remains  in  the  old  doctrine  of  estoppel  by  deed,  may  be  in- 
voked.    See  Averill  v.  Wilson,  4  Barb.  180;  Champlain,  <fec.  R.  R.  Co.  v.  Valentine, 
19  Id.  484.     The  estoppel,  if  it  arise  from  an  indenture  alone,  must  be  mutual,  if  it 
exist  at  all ;  and  if  the  lessor  is  not  capable  of  being  estopped,  the  tenant  is  not 
estopped.    Rowe  v.  Scarrot,  4  H.  <fc  N.  723;  L.  J.  28  Ex.  325.      But  in  case  of  a 


ACTIONS  ON  LEASES.  529 

or  who  holds  over  without  any  new  agreement  or  claim,1  is 
estopped  in  respect  of  the  period  during  which  the  term2  or  the 
possession,  as  the  case  may  be,  continued,  to  deny  that  the  lessor 
had  title.  The  estoppel,  when  founded  on  possession  (as  distin- 
guished from  an  estoppel  by  deed),  is  conclusive  in  respect  to  the 
period  of  possession  under  the  relation,  after  as  well  as  during 
the  term  expressly  agreed  for,  being  simply  concurrent  with  the 
possession.3  But  neither  possession,  without  the  conventional 
relation  of  landlord  and  tenant,4  nor  the  conventional  relation 
without  the  possibility  of  possession,5  will  raise  this  equitable 
estoppel.  If  there  be  any  estoppel  without  at  least  potential  pos- 
session, it  must  rest  on  the  ancient  technical  estoppel  by  inden- 
ture, duly  pleaded. 

But  the  tenant  is  not  estopped  to  deny  that,  since  his  own 
entry,  his  lessor's  title  has  ceased  ;  and  he  may  do  this  by  show- 
ing either  that  it  has  expired  by  its  own  limitation,  or  has  ended 
by  the  act  of  the  lessor,  or  by  eviction  by  title  paramount.6  To 
show  a  change  in  the  title  once  admitted  is  no  denial,  and  there- 
fore not  precluded  by  the  estoppel.7  If  the  expiration  of  the 
term  is  relied  on  as  having  ended  the  estoppel,  it  must  be  shown 
either  that  the  lessee  surrendered  possession,  or  attorned,8  or  at 
least  that  he  held  in  hostility,9  and  gave  notice  to  his  landlord 
that  he  thereafter  claimed  tinder  another  title,  the  validity  of 
which  he  must  be  prepared  to  prove,10  unless,  by  lapse  of  time,  it 
has  become  the  foundation  of  an  adverse  possession  which  will 
bar  the  landlord's  claim.11  When  the  estoppel  is  set  up  by  the 
assignee  of  the  lessor,  the  tenant  is  not  estopped  from  impeaching 
the  assignment;13  and  for  this  purpose  he  may  show  that  the 
lessor's  title  at  the  time  of  demise  was  a  limited  one.13 

An  equitable  estoppel  of  the  tenant  need  not  be  pleaded ;  but 
is  conclusive  when  the  undisturbed  possession  appears  in  evidence 
under  a  denial.14  It  applies  to  every  form  of  action  in  which  the 
lessor,  or  those  claiming  under  him,  seek  to  assert  against  the 


purely  equitable  estoppel  arising  from  possession,  mutuality  is  not  always  essential. 
At  least  the  party  entitled  to  set  it  up  may  have  an  election.     See  Conway  v.  Stark- 
weather, 1  Den.  113.     Contra,  Welland  Canal  Co.  v.  Hathaway,  8  Wend.  480. 
1  Osgood  v.  Dewey,  13  Johns.  240. 

*  See  Child  v.  Chappell,  9  N.  Y.  246. 

3  6  Am.  Law  Rev.  21. 

4  Sands  v.  Hughes,  63  N.  Y.  287  ;  Buell  v.  Cook,  4  Conn.  238,  245. 

*  Andriot  v.  Lawrence,  33  Barb.  142. 

*  Heitzel  v.  Barber,  69  N.  Y.  1 ;  Hilbourn  v.  Fogg  (above).     Compare  Rose.  N.  P. 
343. 

1  Despard  v.  Walbridge,  15  N.  Y.  374;  6  Am.  Law  Rev.  21. 

8  Miller  v.  Lang,  99  Mass.  13. 

'  Conway  v.  Starkweather,  1  Den.  113. 

10  Miller  v.  Lani^  (above). 

11  Willison  v.  Watkins,  8  Pet.  48.     Compare  Tompkins  v.  Snow,  63  Barb.  625. 
19  Despard  v.  Walbridgo;  Hilbourn  v.  Fogg  (above). 

13  Doe  d.  Strode  v.  Seat™.  2  Carr.  M.  <fe  It.  (Exch.)  728,  and  cases  cited. 

14  Prevotv.  Lawrence,  61  N.Y.  219;  s.  r.  6  Am.  Law  lluv.  10,  12. 

34 


530  ACTIONS  ON  LEASES. 

lessee,  and  those  holding  under  him,  the  rights  reserved  or  pos- 
sessed in  the  lease.1  And  it  not  only  precludes  the  tenant  from 
proving  want  of  title,  but  equally  from  availing  himself  of  want 
of  title  brought  out  by  plaintiff's  own  evidence.2  Eviction  need 
not  be  shown,  if  actual  cessation  of  title  is  proven,  and  the  tenant 
has  made  a  valid  attornment,8  or  upon  a  valid  claim  by  a  third 
person,  under  title  paramount,  has  yielded  up  or  abandoned  pos- 
session.4 An  attornment,  made  under  proper  circumstances,8  to 
one  having  paramount  title,  is  equivalent  to  proof  of  going  out 
of  possession  and  coming  in  again  under  the  new  landlord.  If 
the  eviction  was  not  by  judgment  of  law,  the  burden  is  on  the 
tenant  to  prove  the  paramount  title,  and  that  he  yielded  in  good 
faith  to  compulsion.'  If  there  was  eviction  by  judgment  of  law, 
evidence  that  the  landlord  was  privy  to  the  action,  or  had  due 
notice  and  adequate  opportunity  to  assume  charge  of  the  litiga- 
tion, renders  the  judgment  conclusive  on  him  as  evidence  of 
eviction. 

A  mere  acknowledgment  or  attornment  by  one  alrea,dy  in 
possession,  though  evidence  of  a  tenancy,  does  not  raise  a  con- 
clusive estoppel ;  but  the  tenant  may  show  in  such  case  that  the 
party  claiming  the  estoppel  was  a  stranger  to  the  land  until  the 
acknowledgment  or  attornment,  or  did  not  legally  succeed  to  the 
original  lessor,  and  that  the  tenant  himself  has  a  paramount  title, 
and  the  acknowledgment  or  attornment  was  made  under  mistake 
or  induced  by  fraud.8 

15.  Adverse  title."] — Where  title  in  a  third  person  is  compe- 
tent, it  should  be  shown  by  the  usual  muniments  of  title,  or  by 
evidence  of  possession  for  such  a  period  as  raises  a  presumption 
of  title,9  or  by  a  former  adjudication  between  the  same,  parties,  or 
their  privies,  establishing  it.10 

16.  Forfeiture.'} — "Where  the  occurrence  of  a  ground  of  for- 
feiture has  been  shown,  the  acceptance  of  subsequent  rent  is  pre- 
sumptive, but  not  conclusive,  evidence  of  intent  to  waive  the 
forfeiture.11    Lapse  of  time,  and  any  other  circumstance  render- 
ing it  inequitable  to  enforce  the  forfeiture,  strengthens-  the  evi- 


1  Tayl.  L.  &  T.  485  ;  Hiibourn  v.  Fogg  (above). 

»  Dolby  v.  Isles,  11  Ad.  <fe  E.  335;    but  compare  1   Greenl.  Ev.   13th  ed.  249, 
§211. 

3  Jackson  v.  Harper,  6  Wend.  666,  6*70;  and  see  Den  v.  Ashmorc,  2  Zab.  261. 

4  Whalin  T.  White,  25  N.  Y.  465. 

5  See  1  N.  Y.  R.  S.  743,  §  3 ;  Lawrence  v.  Brown,  5  N.  Y.  394. 

6  Austin  v.  Ahearne,  61  N.  Y.  19,  per  DWIGHT,  C. 

7  Moffat  v.  Strong  (above);  6  Am.  Law  Reg.  34, 35. 

8  Ingraham  v.  Baldwin,  9  N.  Y.  47,  and  cases  cited ;  6  Am.  Law  Reg.  27,  and 
cases  cited.    Compare  Austin  v.  Ahearne  (above)  and  Hardy  v.  Akerly,  57  Barb. 
148. 

9  Treadwell  v.  Brnder,  3  E.  D.  Smith,  596. 

10  See,  for  instance,  Yonkers  <fe  N.  Y.  Fire  Ins.  Co.  v.  Bishop,  1  Daly,  449. 

11  Manice  v.  Millen,  26  Barb.  41 ;  Dumpor's  Case,  1  Smith's  L.  Cas/93, 100. 


ACTIONS  ON  LEASES.  531 

dence  of  waiver.1  In  strictness,  the  question  is  whether  the 
lessor  has  manifested  an  election  either  way,  or  none.2 

If  defendant  relies  on  the  lessor's  consent  to  the  act  claimed 
to  be  ground  of  forfeiture,  the  burden  of  proof  is  on  the  defend- 
ant to  prove  consent.3 

17.  Assignment.'] — Under  an  allegation  that  defendant  is  in 
as  assignee,  his  title  as  heir,4  or  liability  on  other  equitable 
grounds,5  may,  under  the  new  procedure,  be  proved  if  amend- 
ment be  allowed.  So,  under  an  allegation  that  he  was  assignee 
of  the  whole  premises,  proof  that  he  was  assignee  of  part  only  is 
admissible.6  The  burden  of  proof  is  upon  the  plaintiff  to  prove 
the  assignment.7  An  assignment  by  writing,  though  not  under 
seal,  is  good.8  But  direct  evidence  is  not  required.  To  charge 
an  assignee  with  rent,  evidence  that  he  held  himself  forth  as  such 
is  enough.9  It  is  competent  to  prove  his  acts  and  admissions 
without  any  express  assignment.10  Having  proved  the  lease,  it  is 
prim  a  facie  sufficient  to  show  any  facts  from  which  an  assign- 
ment, may  be  inferred.11 

Defendant  may  prove  that  he  is  not  assignee, — as  by  showing 
that  the  estate  created  by  the  lease  declared  on  ceased  before  his 
entry,12  or  that  he  claimed  to  hold  under  an  adverse  title.13  To 
entitle  him  to  show  eviction  from  part,  as  a  ground  of  apportion- 
ment, the  eviction  should  be  pleaded  accordingly.14  If  the  de- 
fendant relies  on  the  fact  that  his  assignors  have  paid  the  rent, 
the  burden  is  on  him  to  show  it.15  If  he  relies  on  the  fact  that  he 
assigned  to  another,  that  assignment  may  be  shown  by  indirect 
evidence,16  as  already  stated.  It  is  not  necessary  for  him  to 


1  Damper's  Case,  1  Smith's  L.  Gas.  93,  97. 

s  Clough  v.  London  <fe  Northwestern  Railway  Co.  L.  R.  7  Exch.  26,  84,  s.  o.  1 
Moak'sEna:.  148,  157. 

3  Lawrence  v.  Williams,  1  Duer,  685. 

4  Derisley  v.  Custance,  4  T.  R.  76. 

5  See  Mason  v.  Breslin,  2  Sweeny,  386,  395. 

6  Van  Rensselaer  v.  Gallup,  5  Den.  454;    Main  v.  Davis,  32  Barb.  461.     Contra, 
Hare  v.  Cator,  Cowp.  766. 

7  Lansing  v.  Van  Alstyne,  2  Wend.  561. 

8  Holliday  v.  Marshall,  7  Johns.  211,  213.     For  other  rules  aa  to  proving  assign- 
ment, see  Ch^p.  I  of  this  vol. 

8  Carter  v.  Hammett.  12  Barb.  253  ;  again,  18  Id.  608. 

10  Adams  v.  French,  2  N.  H.  387. 

11  Such,  for  instance,  as  that  he  occupied,  and  either  acknowledged  thnt  he  held 
under  the  lease,  (Main  v.  Davis,  82  Barb.  461,  and  cases  cited;    Van  Rensselner  v. 
Secor,  Id.  469) ;  or,  that  he  paid  rent  upon  the  lease,  (Bedford  v.  Terhune,  80  N.  Y. 
453,  affi'g  1  Daly,  371) ;  or,  that  bo  lias  claimed  to  be  assignee  of  the  term,  (Lush  v. 
Druse,  4  Wend.  313);    or  has  rented  out  the  premises  as  his  own,  ( Armstrong  v. 
Wheeler.  9  Cow.  88);    or  even  that  ho  is  in  possession,  (Williams  v.  Woodard,  2 
Wend.  487;    Lansing  v.  Van  Alstyne,  Id.  561,   563;   Armstrong  v.  Wheeler,  9 
Cow.  88). 

13  Williams  T.  Woodard,  2  Wend.  487. 

13  City  of  Boston  v.  Binney,  1 1  Pick.  1. 

14  Landing  v.  Van  Alstyne,  2  Wend.  561. 

15  Jones  v.  Ifausmann,  10  Bosw.  168. 

"  Carter  v.  Hammett,  12  Barb.  253  ;  again,  18  Id.  608. 


532  ACTIONS  ON  LEASES. 

show  that  he  has  divested  himself  of  a  paper  title  and  a  legal 
right.1 

Defendant  is  not  liable  on  parol  evidence  merely  that  he  took 
a  general  assignment  of  all  the  lessee's  property  in  trust?  If  the 
lease  is  not  specified  in  the  assignment,  the  assignee  in  trust  is 
not  liable  without  evidence  manifesting  an  intent  to  accept  the 
lease  ; 8  and  he  may  rebut  the  presumption  arising  from  his 
temporary  occupation,  and  prove  that  he  did  not  accept  the  lease 
under  the  assignment.4 

18.  Demand.'] — In  an  action  for  rent,  as  distinguished  from 
a  proceeding  to  forfeit  the  term  for  non-payment,  a  demand  need 
not  be  proved.5     At  common  law,  where  a  right  of  re-entry  is 
claimed  on  the  ground  of  forfeiture  for  the  non-payment  of  rent, 
there  must  be  proof  of  a  demand  of  the  precise  sum  due,  at  a 
convenient  time  before  sunset  upon  the  day  when  the  rent  is  due 
upon  the  land,  at  the  most  notorious  place  on  it,  though  there  be 
no  person  on  the  land  to  pay.6 

Where  demand  is  made  by  agent,  oral  evidence  of  authority 
is  enough,7  unless  it  appear  that  the  authority  was  in  writing  and 
some  question  is  made  as  to  its  terms.8 

19.  Repairs^ — In  an  action  for  rent  plaintiff  need  not,  in  the 
first  instance,  prove  performance  of  his  covenant  to  put  in  re- 
pair.9     A  plaintiff,  alleging  a  breach  of    a  covenant  to  make 
repairs,  must  give  some  evidence  that  they  were  not  made,  if 
it  be  in  issue.10    If  he  allege  that  he  made  repairs,  for  which 
he  is  entitled  to  recover,  he  must  prove  the  affirmative,  if  in 
issue.11 

20.  Surrender :  Destruction  of  premises."] — Under  the  statute 
of  frauds,12  which  forbids  any  estate  in  lands  for  more  than  one 
year,  to  be  created  or  surrendered,  "  unless  by  act  or  operation  of 
law,  or  by  a  deed  or  conveyance  in  writing,  subscribed  by  the 
party  "  or  his  agent  authorized,  in  writing, — a  surrender  by  act 
or  operation  of  law  may  be  inferred  from  circumstances/3  and 
may  be  proved  by  evidence  that  the  parties,  without  express  sur- 
render, did  some  act  which  implies  that  they  both  agreed  to  con- 


1  Astor  v.  L'Amouretix,  4  Sandf,  624 ;  Carter  v.  Hammett,  18  Barb.  608. 

*  Carter  v.  Hammett,  12  Barb.  253. 

*  Lewis  v.  Burr,  8  Bosw.  140.  • 

4  Bagley  v.  Freeman,  1  Hilt.  196  ;  In  re  Ten  Eyck  <fe  Choate,  7  Nat,  Bankr.  R  26. 
6  Livingston  v.  Miller,  11  Tf.  Y.  80. 

*  Prout  v.  Roby,  15  Wall.  471,  and  cases  cited. 
1  Sheets  v.  Selden's  Lessee,  2  Wall.  178. 

8  See  pp.  241  and  480  of  this  vol. 
'  Hanger  v.  Edmonds,  4  Barb.  256. 

10  Belcher  v.  M'Intosh,  8  C.  &  P.  720,  721. 

11  See  Levy  v.  Bond,  1  E.  D.  Smith,  169. 
14  2N.  Y.R.  S.  134,  §6. 

13  Bailey  v.  Delaplaine,  1  Sandf.  5. 


ACTIONS  OF  LEASES.  533 

eider  the  surrender  as  made ; * — for  instance,  by  evidence  that 
with  the  assent  of  the  parties,  a  new  and  valid  lease,  wholly  in- 
consistent with  the  continuance  of  the  former,  was  made,  and 
possession  taken  under  it.2  If  the  unexpired  term  was  not  more 
than  one  year,  a  parol  surrender  may  be  proved.3  But  abro- 
gation of  a  written  lease  cannot  be  shown  by  evidence  of  a 
mere  oral  disclaimer,4  or  an  oral  promise  to  release  from  further 
liability.5 

Evidence  of  surrender  by  act  of  the  parties,  should  bring  the 
fact  home  to  all  of  them.6  It  will  not  be  implied  against  the  in- 
tent of  the  parties,  as  manifested  by  their  acts.7 

A  parol  relinquishment  of  part  of  the  premises  in  considera- 
tion of  a  reduction  of  the  rent,  may  be  proved,  notwithstanding 
the  statute  of  frauds,  as  a  lease  from  year  to  year.8 

If  defendant  relies  on  the  fact  that  money  has  been  or  might 
have  been  realized,  by  letting  the  premises  to  others  when  de- 
fendant refused  to  occupy,  the  burden  is  on  him  to  show  it.9 

A  written  stipulation  cancelling  a  lease,  does  not  merge  the 
previous  oral  agreement  fixing  the  terms  of  the  surrender,  so  as 
to  exclude  parol  proof  of  that  agreement.10 

The  fact  that  the  tenant  or  sub-tenant  continues  to  occupy 
part  of  the  premises  after  a  fire,  is  not  of  itself  conclusive  evi- 
dence that  the  premises  are  tenantable.  Evidence  of  the  circum- 
stances which  induced  remaining  is  proper.11 

21.  Apportionment.'] — One  of  two  joint  lessees  may  prove  by 
parol  an  apportionment  of  the  premises  and  rent.12 

22.  Payment^ — Evidence  of  payment  and  acceptance  of  rent, 
for  one  quarter  or  period,  raises  a  legal  but  not  conclusive  pre- 
sumption that  previous  rent  had  been  paid.13    This  presumption 
is  one  which  requires  strong  evidence  to  rebut  it.14    Production 


1  Beall  v.  White,  94  U.  S.  (4  Otto),  382,  389 ;    Walker  Y.  Richardson,  2  M.  <fe  W. 
882,  892. 

*  Coe  v.  Hobby,  72  N.  Y.  141.  affi'g  7  Hun,  159,  and  cases  cited :  Amory  v.  Kan- 
noffsky,  117  Mass.  351,  s.  c.  19  Am.  R.  416. 

I  For  instance,  by  the  substitution  of  another  tenant,  and  receipt  of  rent  from 
him.    Wilson  v.  Lester,  64  Barb.  433,  and  cases  cited.    But  this  is  only  a  presump- 
tion which  cannot  be  indulged  against  the  apparent  intent  of  the  parties.   Van  Rehs- 
selaer  v.  Ponniman,  6  WencT.  569. 

*  Jackson  v.  Kisselbrack,  10  Johns.  336  ;  and  see  Pugsley  v.  Aiken,  11  N.  Y.  494, 
rev'g  14  Barb.  114. 

6  Goelet  v.  Ross,  15  Abb.  Pr.  251. 

«  Beall  v.  White,  94  U.  S.  (4  Otto),  382 ;  s.  p.  Bedford  v.  Terhune,  30  N.  Y.  453, 
affi'g  1  Duly,  371. 

'Coe  v.  Hobby  (above). 

8  Lounsberry  v.  Snyder,  81  N.  Y.  514. 

*  Greene  v.  Wng^oner,  2  Hilt.  297. 
10  Hope  v.  Balen,  68  N.  Y.  380. 

II  Kip  v.  Merwin,  62  N.  Y.  642 ;  compare  Johnson  v.  Oppenheim,  65  Id.  280. 
15  Van  Rensselaer  v.  Gifford,  24  Barb.  349. 

13  Brewer  v.  Knapp,  1  Pick.  8»2,  336. 

14  Pow.  on  Ev.  97. 


634:  ACTIONS  ON  LEASES. 

of  receipts  for  the  former  periods,  not  expressed  to  be  in  full,  does 
not  suffice  to  rebut  it.1 

Rent,  even  though  reserved  by  parol,  is  not  merged  by  taking 
&  sealed  security.8  If  reserved  by  deed,  payment  is  not  neces- 
sarily presumed  from  lapse  of  time.8 

23.  Eviction.] — Under  an  allegation  of  wrongful  eviction  by 
the  landlord,  as  a  defense  to  claim  for  rent,  a  constructive  evic- 
tion may  be  proved.4    A  mere  trespass  is  not  enough  ;5  nor  is  a 
failure  to  give  possession.6    But  an  eviction  from  part  is  enough,7 
and  so  is  an  obstruction  to  the  beneficial  enjoyment  of  the  whole 
property,  and  a  diminution  of  the  consideration  of  the  contract, 
by  the  landlord's  acts,8  unless  the  tenant  remained  in  possession 
of  the  entire  premises  until  the  rent  fell  due.9 

24.  Acts  of  waste.] — The  intent  is  not  essential ;  and  under  an 
allegation  that  the  waste  was  wrongfully  committed,  plaintiff  may 
prove  that  it  was  negligently  committed.10    The  opinion   of  a 
qualified  witness  is  competent  as  to  the  amount  of  waste  com- 
mitted,— for  instance,  the  number  of  acres  from  which  timber 
has  been  cut,  and  the  like  j11  but  not  whether  the  cutting  of  tim- 
ber was  a  benefit  or  injury  to  the  estate,12  nor,  if  an  injury,  how 
much.13    Evidence  of  the  value  of  timber  cut  may  be  received, 
and  of  what  part  of  it  was  suitable  for  timber.14 


1  Patterson  v.  O'Hara,  2  E.  D.  Smith,  58. 
*  Cornell  v.  Lamb,  20  Johns.  407. 
8  Lyon  v.  Adde,  63  Barb.  89. 

4  Dyett  v.  Pendleton,  7  Cow.  727. 

5  Lounsbery  v.  Snyder,  31  N.  Y.  514,  and  cases  cited. 

6  Vanderpool  v.  Smith,  4  Abb.  Ct.  App.  Dec.  461. 

7  Christopher  v.  Austin,  11  N.  Y.  216,  affi'g  2  E.  D.  Smith,  203,  209,  note ;  Peck 
T.  Hiler,  24  Barb.  178,  8.  c.   14  How.  Pr.  155;  compare  a  further  decision,  in  31 
Barb.  116;  Colburn  v.  Morrill,  117  Mass.  262,  s.  c.  19  Am.  R.  415. 

8  Dyett  v.  Pendleton,  8  Cow.  727,  rev'g  4  Id.  681 ;  and  see  106  Mass.  201. 

»  Edgerton  v.  Page,  10  Abb.  Pr.  119,  a.  c.  20  N.  Y.  281 ;  18  How.  Pr.  359,  affi'g  1 
Hilt.  320;  5  Abb.  Pr.  1  ;  14  How.  Pr.  116;  Academy  of  Music  v.  Hackett,  2  Hilt.  217, 
and  cases  cited  ;  De  Witt  v.  Pierson,  112  Mass.  8,  s.  c.  17  Am.  R.  58. 

10  Robinson  v.  Wheeler,  25  N.  Y.  252. 

11  Woodward  v.  Gates,  38  Geo.  205. 
11  McGregor  v.  Brown,  10  N.  Y.  1 14. 

13  Van  Deusen  v.  Young,  29  N.  Y.  9,  rev'g  29  Barb.  9 ;  Robertson  v.  Knapp,  35 
N.  Y.  91,  s.  c.  33  How.  Pr.  309. 

14  Rutherford  v.  Aiken,  3  Snpm.  Ct  (T.  «fe  C.)  60;  compare  Harder  v.  Harder,  26 
Barb.  409. 


CHAPTEE  XXIX. 

ACTIONS    ON    JUDGMENTS. 

L  GENERAL  PRINCIPLES.  flJ-  RULES    PECULIAR  TO    JUDGMENTS   o» 

1.  The  several  modes  of  proof.  COURTS,  <fec. — continued. 

2.  Certified  copies.  20.  Seal. 

8.  Exemplifications.  21.  Judge's  certificate. 

4.  Sworn  copies.  22.  Presumption  in  favor  of  jumdic- 

6.  Imperfect  records.  tion. 

6.  Lost  judgment.  23.  Service. 

7.  Date.  24.  Constructive  service. 

8.  Identity  of  parties.  25.  Appearance. 

9.  Docketing.  26.  Effect  of  judgment 

10.  Impeaching.  27.  Justice's  judgment. 

11.  Reversal.  28.  Former  adjudication. 

12.  Satisfaction.  29.  Appeal  pending. 

30.  Limitations. 
II.  JUDGMENT  OF  COURTS  WITHIN  THE  STATE. 

13.  The  New  York  practice.  IV.  HOTTED    STATES   COURTS  AND    THK» 

14.  Justice  s  judgment.  JUDGMENTS. 

HI.  RULES    PECULIAR    TO    JUDGMENTS    OF  31-  Judgments  of  those  courts,  how 

COURTS   OF   SISTER   STATES,    <fcc.  .  J?™™*  el56™16™-  _ 

16.  Different  methods  of  proof.  32.  The  practice  in  the  United  States 

16.  What  judgments  may  be  proved  courts, 
under  the  act  of  Congress. 

17.  Requisites  of  proof  under  the  act  "•  FOREIGN  JUDGMENTS. 

18.  Certifying  officers,  33.  Mode  of  proof. 

19.  Clerk's  attestation.  34.  Effect. 

I.   GENERAL  PRINCIPLES. 

1.  The  several  modes  of  proof  ?\ — There  are  fonr  methods  of 
proving  a  judgment ;  viz. :  by  producing  1,  a  certified  copy ;  2, 
a  sworn  copy ;  3,  an  exemplification ;  and,  4,  the  original  record.1 
Oral  evidence,2  the  transcript  filed  and   docketed   in  another 
county,8  or  the  production  of  process  issued  on  the  judgment,4  is 
not  competent  except  as  secondary  evidence  after  proper  founda- 
tion has  been  laid  for  it. 

2.  Certified  copies^ — Proof  by  certified  copy,  permitted  at 
common  law  in  case  of  domestic  judgments  of  courts  of  general 


1  Lansing  v.  Russell,  3  Barb.  Ch.  825  ;  Baker  v.  Kingsland,  10  Pnige,  866 ;  Handly 
v.  Greene,  15  Barb.  601.  Statutes  prescribing  formalities  for  certified  copies,  do  not 
by  implication  affect  the  common  law  modes  of  proof  ia  other  ways.  Peck  v.  Far- 
rington,  9  Wend.  94 ;  N.  Y.  Code  Civ.  Pro.  §  962. 

*  Gass  v.  Stinson,  2  Sumn.  605. 

3  Handly  v.  Greene,  15  Bnrb.  601.       ' 

4  SmaUwood  v.  Violet,  1  Cranch  C.  Ct.  516. 

[585] 


536  ACTIONS  ON  JUDGMENTS. 

jurisdiction,1  is  now  generally,  expressly  sanctioned  by  statute, 
requiring  the  whole  record  to  be  certified;  and  is  usually  the 
most  convenient.  Proof  of  the  official  character  of  the  authenti- 
cating officer,  his  signature,  and  that  it  was  made  within  his  juris- 
diction, is  not  necessary,  except  so  far  as  made  so  by  the  statute.2 
The  certificate  must  be  under  the  seal  of  the  court,  if  any,8  unless 
produced  in  the  same  court  or  a  branch  thereof.4 

The  clerk's  certificate  of  the  existence  of  a  judgment  is  not 
evidence  of  it  unless  made  so  by  statute ; 5  and  statute  authority 
to  certify  a  copy  for  specific  purposes,  does  not  authorize  to  make 
certified  copies  which  shall  be  generally  admissible  in  evidence.6 

3.  Exemplifications. .] — An   exemplification  may  be  said  to  be 
a  duplicate  of  the  record,  authenticated  under  the  great  seal  of 
the  State,  or  the  seal  of  the  court,  with  a  certificate  from  the  au- 
thorities appearing  to  have  official  custody  of  the  record,  that 
they  have  caused  it  to  be  exemplified.     It  is  admissible  without  a 
certificate  that  it  has  been  compared  and  contains  the  whole  of 
the  record,  &c.,  as  in  case  of  a  certified  copy.7 

4.  Sworn  copies.'] — Notwithstanding  the  statute,  a  copy  may 
be  proved  by  producing  it,  with  a  witness  to  testify  that  he  com- 
pared it  with  the  original  record,  in  the  proper  court.     But  it  is 
essential  to  show,  by  evidence  extrinsic  to  the  paper,  that  the 
record  was  found  in  the  proper  place  of  deposit,  or  in  the  hands 
of  the  officer  in  whose  custody  the  records  of  the  court  are  kept ; 
this  cannot  be  shown  by  any  light  reflected  from  the  record 
itself.8    If  a  certified  copy  or  exemplification  is  rejected  for  de- 
fect of  authentication,  counsel  may  fall  back  on  this  mode  of 
proof.9 

5.  Imperfect  records,  c&c.'] — Where  the  law  does  not  require 
a  formal  record  to  be  made  up,  the  entries  which  are  permitted 
to  stand  in  its  place  are  admissible ; 10  but  in  such  case,  if  the 
judgment  be  not  one  of  the  same  State  or  of  the  United  States, 
there  should  be  evidence  of  the  law  sanctioning  such  entries  as 

sufficiept.11    Otherwise  they  are  not  competent u  except  as  second- 

t 

1  Fort  v.  Burch,  6  Barb.  60,  76 ;  and  see  Bergen  v.  Bradley,  86  N.  Y.  316 ;  U.  S. 
v.  Percheman,  7  Pet.  85 ;  but  compare  Errickson  v.  Smith,  2  Abb.  Ct.  App.  Dec.  70. 

8  Thurman  v.  Cameron,  24  Wend.  87 ;  Hatcher  v.  Rocheleau,  8  N.  Y.  94 ;  Merritt 
v.  Lynn,  3  Barb.  110. 

3  N.  Y.  Code  Civ.  Pro.  §  968. 

4  Id.  §  959.     In  New  York  and  some  other  States  the  seal  may  be  impressed  on 
paper,  without  wax.     Id.  §  960. 

&  Lansing  v.  Russell,  3  Barb.  Ch.  325. 

6  Coolidge  v.  N.  Y.  Firem.  Ins.  Co.  14  Johns.  814. 

7  Merritt  v.  Lyon,  3  Barb.  110;  Lazier  v.  Westcott,  26  N.  Y.  146;  Vandevoort 
v.  Smith,  2  Cai.  155.     In  the  case  even  of  an  inferior  domestic  court,  an  exempli- 
fication is  sufficient.     Vail  v.  Smith,  4  Cow.  71 ;  Robert  v.  Good,  36  N.  Y.  411. 

8  Hntchins  v.  Gerrish,  52  N.  H.  205,  s.  c.  13  Am.  R.  19. 

9  Seep,  23  of  this  vol. 

10  Rose.  N.  P.   135 ;  Philadelphia,  <fec.  R.  R.  Co.  v.  Howard,  13  How.  U.  S.  307; 
Washington,  <fec.  Steam  Packet  Co.  v.  Sickles.  24  Id.  333. 

11  Taylor  v.  Runyan,  3  Iowa,  474  ;  9  Id.  522. 

"  Levering  v.  Dayton,  4  Wash,  C.  Ct,  698.     Enrollment  is  not  necessary  to  make 


ACTIONS  ON  JUDGMENTS.  537 

aiy  evidence.  In  proving  a  judgment  had  under  the  new  pro- 
ceedure,  for  the  purpose  of  an  action  thereon,  whatever  is  made 
by  law  a  part  of  the  record  or  judgment  roll  should  be  proved ; 
and  this  is  enough  in  the  first  instance.1  At  common  law  it  is 
enough  alike  in  case  of  a  domestic  judgment  or  one  of  a  sister 
State,  to  prove  the  record  of  judgment  alone,  without  the  writ  or 
other  proceedings  before  or  after  judgment,2  and  defendant  may 
prove  these  if  he  wish.  Signature  of  an  original  record  by  the 
clerk  is  not  essential,  unless  made  so  by  statute.8  The  omission, 
if  a  defect,  is  amendable.4  To  prove  a  judgment  by  confession, 
the  warrant  or  consent  should  also  be  proved.5 

The  question  whether  the  document  is  only  an  extract  or  a 
copy  of  the  whole  record,  is  determined  not  by  its  appearance, 
but  by  the  attestation.6  And,  for  this  purpose,  a  certificate  sub- 
stantially importing  that  it  is  a  faithful  and  complete  copy  is 
enough,  though  it  do  not  use  the  most  appropriate  words.7 
Otherwise,  if  the  writing  certified  does  not  purport  to  be  a 
record ; 8  or  if  the  form  of  the  certificate  is  prescribed  by  the 
statute.9 


the  bill,  answer,  and  original  decree,  evidence  (Winans  v.  Dunham,  6  Wend.  47; 
and  see  Bates  v.  Delavan,  6  Paige,  299;  Fort  v.  Burch,  6  Barb.  60),  unless  required 
by  law.  But  that  which  has  been  enrolled  cannot  be  contradicted  or  set  aside  by 
what  is  not  enrolled  (Crosswell  v.  Byrnes,  9  Johns.  287 ;  McKnight  v.  Dunlop,  4 
Barb.  86  ;  Waldron  v.  Green,  4  Wend.  409). 

1  Clark  v.  Depew,  25  Penn.  St.  509  ;  Knapp  v.  Aboil,  10  Allen,  485  ;  Barringer  v. 
King,  5  Gray,  9. 

2  Rathbonc  v.  Rathbone,  10  Pick.  1 ;  Miller  v.  White,  10  Abb.  Pr.  N.  S.  385,  s.  c. 
59  Barb.  434.     Compare,  contra,  Irvine  v.   Lumberman's  Bank,  2  Watts  &  S.  190; 
Edmiston  v.  Schwartz,  13  Serg.  &,  R.  135 ;  Ashley  v.  Laird,  14  Ind.  222.     At  com- 
mon law  a  duly  authenticated  copy  of  parts  of  a  record  is  properly  admissible  in  evi- 
dence.    The  whole  is  not  necessary.     It  is  sufficient  that  extracts  are  furnished  to 
show  prima  facie  the  facts  sought  to  be  proved.     Gardere  v.  Col.  Ins.  Co.  7  Johns. 
518 ;  Packard  v.  Hill,  7  Cow.  434 ;  5  Wend.  375  ;  see  8  N.  Y.  92,  and  Code  of  Civ. 
Pro.  §  958.     If  the  decree  or  judgment  shows  jurisdiction  and  contains  all  the  facts 
required,  the  proceedings  on  which  it  was  founded  arc  not  essential  to  its  compe- 
tency; but  if  the  particular  issue  raised  is  material,  the  pleadings,  and  whatever  else 
is  relevant,  should  appear.     Rose.  N.  P.  128. 

8  Goelet  v.  Spofford,  55  N.  Y.  647;  Secombe  v.  Steele,  20  How.  U.  S.  94;  com- 
pare Morris  v.  Patchin,  24  N.  Y.  394. 

4  Van  Alstyne  v..  Cook,  25  N.  Y.  489  ;  Artisans'  Bank  v.  Treadwell,  34  Barb.  553. 

6  Rathbone  v.  Rathbone,  10  Pick.  1 ;  Hill  v.  Tiernan,  4  Mo.  316  ;  Rape  y.  Heaton, 
9  Wise.  828. 

«  Voris  v.  Smith,  13  Serg.  <fe  R.  834. 

1  Thus,  "  a  true  copy ; "  or,  "  a  copy  of  the  record ; "  or,  a  "  true  transcript  of  the 
record  and  proceedings  "  *  *  "  as  fully  as  they  now  exist  among  the  records  of 
my  office;  "  or,  "that  the  foregoing  is  truly  taken  from  the  record  of  proceedings" 
of  the  court ;  or,  "  a  copy  of  records  trjily  taken  and  correctly  copied  from  records"; 
— imports  a  complete  copy,  unless  the  contrary  appears  from  the  face  of  the  papers. 
Edmiston  v.  Schwartz,  13  Serg.  <fe  R.  135  ;  Voris  v.  Smith,  Id.  334 ;  McCormick  v. 
Deaver,  22  Md.  187;  Ferguson  v.  Harwood,  7  Cranch,  408;  Rcbcr  v.  Wright,  68 
Penn.  St.  471 ;  Case  v.  McGill,  8  Md.  10;  Caulfield  v.  Bullock,  18  B.  Monr.  494. 

8  Ferguson  v.  Harwood  (above). 

9  The  New  York  statute  (Code  Civ.  Pro.  §§  957,  reproducing  3  R.  S.  6th  ed.  668), 
requires  that  the  person  authorized  to  certify,  must  state,  i:i  his  certificate,  that  it  has 
been  compared  by  him  with  tho  original,  and  that  it  is  a  correct  transcript  therefrom, 
and  of  the  whole  of  the  original. 


538  ACTIONS  ON  JUDGMENTS. 

The  fact  that  the  judgment  roll  or  exemplification  contains 
alterations  or  interlineations  marked  and  verified  as  such  by  the 
initials  of  the  clerk,1  or  that  the  roll  contains  no  summons,  nor 
the  order  of  reference  on  which  the  judgment  \vas  obtained, 
does  not  render  it  wholly  incompetent,5  if  jurisdiction  appears.8 
Amendments  duly  authenticated  may  be  relied  on  to  support  the 
judgment.4  The  mere  fact  that  a  paper  was  found  on  file 
amongst  the  papers  in  a  cause  is  not  evidence  that  it  is  part  of 
the  record.5 

6.  Lost  judgment"] — Proof  that  the  judgment  roll  is  not  found 
in  the  office  of  the  clerk  whose  duty  it  is  to  keep  it6  admits 
secondary  evidence   of  its  former  existence  and  contents.7    A 
copy  of  a  duly  authenticated  copy,  not  apparently  within  the 
power  of  the  parfy  to  produce,  may  be  received  as  secondary 
evidence.8    The  destruction,  or  loss  from  the  files,  of  the  papers 
by  which  the  court  acquired  jurisdiction,  does  not  divest  the 
jurisdiction  ;  for  having  been  once  there,  that  court  is  presumed 
to  know  their  contents,  and  may  act  on  that  knowledge,  and  may 
resort  to  parol  proof  to  aid  its  memory.9 

7.  Date~\ — The  record,  ought  to  indicate  the  time  and  place 
of  the  recovery  of  the  judgment.10   The  text  of  the  record  is  evi- 
dence of  the  time  of  rendition,  and  cannot  strictly  be  corrected 
by  the  date  of  the  signing,  except  on  amendment  in  the  court 
where  the  judgment  was  had  ; u  but  the  error  may  be  shown  and 
cured  by  the  clerk?s  certificate.12    If  the  date  be  blank,  it  may  be 
supplied  by  extrinsic  evidence  in  aid  of  the  record.13    In  the  ab- 
sence of  proof  of  the  hour,  the  judgment  may,  for  reasons  of 
public  policy,  be  presumed  to  have  been  entered  at  the  beginning 
of  the  day." 

8.  Identity  of  parties^ — In  addition  to  the  principle  already 


1  Lazier  v.  Westcott,  26  N.  Y.  146. 

9  Calkins  v.  Packer,  21  Barb.  275.     Contra,  James  v.  Stookey,  1  Wash.  C.  Ct.  830. 

3  See  the  statute  of^eofails,  N.  Y.  Code  of  Civ.  Pro.  §  721. 

4  Wetherill  v.  Stillman,  65  Penn.  St.  105. 

5  Sargeant  v.  State  Bank  of  Indiana,  12  How.  U.  S.  371,  affi'g  4  McLean,  339. 
Compare  Bosworth  v.  Vanderwalker,  53  N.  Y.  597. 

6  N.  Y.  Code  Civ.  Pro.  §  921. 

'  Mandeville  v.  Reynolds,  68  N.  Y.  528,  533,  affi'g  5  Hun,  338. 

8  Cornett  v.  Williams,  20  Wall.  226. 

»  Railw.  Co.  v.  Ramsey,  22  Wall.  322 ;  and  see  6  Cent.  L.  J.  100. 

10  Phelps  v.  Tilton,  17  Ind.  427. 

11  Vail  v.  Smith,  4  Cow.  71.     As  to  effect  of  a  date  apparently  on  a  dies  non,  see 
Moore  v.  Tracy,  7  Wend.  229 ;  and  Re  Worthington,  16  Alb.  L.  J.  63. 

12  Jackson  v.  Davis,  18  Johns.  7. 

13  See  McKnight  v.  Devlin,  52  N.  Y.  399.     The  fiction  of  law,  that  a  term  consists 
of  but  one  day,  cannot  be  invoked  to  antedate  the  judicial  rejection  of  a  claim,  so  aa 
to  render  operative  a  grant  which  would  otherwise  be  without  effect.     Newhall  v. 
Sanger,  92  U.  S.  (2  Otto),  761.  • 

"  Boyer's  Estate,  51  Penn.  St.  432,  STRONG,  J.,  dissented. 


ACTIONS  ON   JUDGMENTS.  539 

stated,1  it  may  be  observed  that,  if  the  names  are  different,  ex- 
trinsic  evidence  of  identity  is  competent 2  and  necessary.3 

9.  Docketing.} — Docketing  may  be  proved  by  evidence  that  a 
transcript  of  judgment  was  received  by  the  county  clerk,  and  that 
he  furnished  a  transcript  thereof,  which  is  produced.4 

10.  Impeaching.} — In  any  action,  on  any  judgment  recovered 
in  any  court,  jurisdiction  may  always  be  impeached,5  unless  the 
party  is  estopped.6     At  common  law  a  judgment  of  a  court  hav- 
ing jurisdiction  (except  judgments  by  cognovit  or  warrant  of  at- 
torney) could  be  impeached  by  a  party,  only  by  error,  new  trial 
or  bill  in  equity.7     Under  the  new  procedure,  any  ground  which 
would  sustain  a  bill  in  equity  for  relief,8  may  be  proved  under  a 
proper  answer,  in  defense  of  an  action  on  the  judgment.9    A 
denial  of  the  existence  of  the  judgment  does  not  admit  evidence 
in  contradiction  of  the  record,  that  it  was  without  jurisdiction,10 
but  an  answer  putting  in  issue  its  legality  will.u 

11.  Reversal.} — Reversal  may  be  proved  under  a  general  de- 
nial ; 12  vacatur,  it  is  held,  should  be  specially  pleaded,13  but  amend- 
ment should  be  allowed  if  defendant  is  not  misled.     If  the  judg- 
ment is  proved  by  record,  an  order  or  minute,  not  of  record,  is  not 
competent  primary  evidence  of  reversal.14 

12.  Satisfaction.} — Although  accord  and  satisfaction  is  not 
enough,15  payment  may  be  proved  by  parol.     The  issue  of  execu- 
tion is  not  presumptive  evidence  of  payment,18  but  may  be  with 
further  evidence  of  levy  and  of  circumstances  from  which  to 
infer  satisfaction.17    A  satisfaction  piece  is  evidence  of  payment,18 
but  not  conclusive.19 


1  Page  101  of  this  vol. 

8  Evans  v.  Patterson,  4  Wall.  231  ;  Steveli6  v.  Read,  2  Wash.  C.  Ct.  274. 

3  Berber  v.  Kerzinger,  23  III.  346;  Williams  v.  Bankhead,  19  Wall.  570. 

4  Lewis  v.  Ryder,  13  Abb.  Pr  1. 

8  Thompson  v.  Whitman,  18  Wall.  457.  Including  fraud  in  inducing  the  exercise 
of  jurisdiction.  Stanton  v.  Crosby,  9  Hun,  370.  Contra,  sea  Luckenhach  v.  Ander- 
son, 47  Penn.  St.  123 ;  Adams  v.  Saratoga  <fe  Washington  R.  U.  Co.  10  N.  Y.  328. 

6  Dyckman  v.  Mayor,  <fec.  of  N.  Y.,  5  N.  Y.  434,  affi'g,  7  Barb.  498;  Sheldon  v. 
Wright,  5  N.  Y.  497. 

1  See  Christmas  v.  Russell,  6  Wall.  305. 

8  See  Crim  v.  Handley,  94  U.  S.  (4  Otto),  652 ;  Stilwell  v.  Carpenter,  2  Abb.  New 
Cas.  238 ;  and  see  7  Am.  R.  136,  n. 

9  Mandeville  v.  Reynolds,  68  N.  Y.  528,  512,  affi'g  6  Hun  338  ;  Dobson  v.  Pearcc, 
12  N.  Y.  165;   Rogers  v.  Gwinn,  21  Iowa,  58.     Compare  Stantt>n  v.  Crosby,  9  Hun, 
870.     The  defendant  is  not  necessarily  entitled  to  read  the  testimony  contained  in 
the  record  in  support  of  impeachment.     Tappan  v.  Beardsley,  10  Wall.  427. 

10  Hill  v.  Mendenhnll,  21  Wall.  455. 

11  Kinsey  v.  Ford,  38  Barb.  195. 
19  Briggs  v.  Bowen,  60  N.  Y.  454. 

13  Carpenter  v.  Goodwin,  4  Dalv,  89.     Contra,  Kinsey  v.  Ford,  38  Barb.  195. 

14  McKnight  v.  Dunlop,  4  Barb"  36 ;  Niles  v.  Totraan,  3  Id.  594. 
1&  Mitchell  v.  Hawley,  4  Den.  414,  and  cases  cited. 

"  Runyan  v.  Weir,  8  N.  J.  L.  (Halst.)  286. 

11  Miller  v.  Smith,  16  Wend.  425,  445,  rev'g  14  1:1.  188. 

18  Booth  v.  Fanners'  <fe  Mechanics'  Bank,  50  N.  Y.  896,  rev'g  4  Lana.  801. 

19  Lownds  v.  Remsen,  7  Wend.  85. 


510  ACTIONS  ON  JUDGMENTS. 

*"*"( 

II.  JUDGMENTS  OF  COURTS  WITHIN  THE  STATE. 

13.  The  New  York  practice,^ — The  most  convenient  way,  in 
case  of  courts  of  record,  is  to  produce  a  copy  of  the  judgment 
roll,  certified  as  already  stated.1     The  jurisdiction  of  the  superior 
city  courts  is  now  presumed  by  force  of  the  statute.2     The  judi- 
cial presumptions  of  jurisdiction,  which  are  stated  below,  respect- 
ing judgments  of  sister  States,3  are  in  their  nature  equally  appli- 
cable in  favor  of  domestic  judgments. 

14.  Justice's  judgment.'] — A  judgment  of  a  justice  of  the 
peace  in  New  York,  is  proved  in  a  court  of  the  same  State,  by  a 
transcript  from  his  docket,  subscribed  by  him,  and  authenticated 
by  a  sealed  certificate  of  the  county  clerk,  to  the  effect  that  the 
person  subscribing  the  transcript  was,  at  the  date  of  the  judg- 
ment therein  mentioned,  a  justice  of  the  peace  of  that  county, 
and  that  the  clerk  is  acquainted  with  his  handwriting,  and  verily 
believes  that  the  signature  to  the  transcript  is  genuine,4  provided 
the  transcript  shows  upon  its  face  that  he  had  jurisdiction  both 
of  the  person  and  the  subject-matter.5    The  transcript  is  conclu- 
sive evidence  of  all  but  the  jurisdictional  facts.6 

Or  it  may  be  proved  by  producing  the  docket,  and  proving  it 
by  his  oath  ; 7  or,  in  case  of  his  death  or  absence,  producing  the 
original  minutes,  with  proof  of  his  handwriting,  or  a  copy  of  the 
minutes  sworn  to  by  a  witness  as  having  been  compared  with 
the  original  minutes,  with  proof  that  they  were  in  his  hand- 
writing.8 

It  may  be  proved  by  the  parol  testimony  of  the  justice  only 
by  consent.9  In  a  second  action  before  the  same  justice,  his 
docket,  or  a  transcript  certified  by  him,  is  evidence,  per  se,  of  the 
former  judgment.10 

The  justice's  acquiring  jurisdiction  of  the  person  may  be 
proved  in  a  collateral  proceeding,  by  either  1.  The  constable's  re- 
turn ;  2.  An  entry  on  the  justice's  docket,  made  at  the  time ;  3. 
Direct  evidence  of  the  service ;  or  4.  The  testimony  of  the  jus- 
tice, showing  positively  that  the  service  was  proved  before  him.u 


1  Paragraph  2 ;  Code  Civ.  Pro.  §§  933,  962. 

2  Code  Civ.  Pro.  §  266. 

3  Paragraphs  22  to  25. 

4  N.  Y.  Code  Civ.  Pro.  §  939. 
6  Benn  v.  Borst,  6  Wend.  292. 

6  Hard  v.  Shipman,  6  Barh.  621 ;   and  see  Brintnall  v.  Foster,   7  Wend.  103 ; 
Smith  v.  Compton.  20  Barb.  262. 

7  N.  Y.  Code  Civ.  Pro.  §  940 ;  Boomer  v.  Laine.  10  Wend.  525.     Notwithstanding 
that  on  removing  from  the  town  he  failed  to  deposit  his  docket-book  with  the  town' 
clerk.     Carshore  v.  Huyck,  6  Barb.  583. 

8  N.  Y.  Code  Civ.  Pro.  §  939  ;  Baldwin  v.  Prouty,  13  Johns.  430 ;  Pratt  v.  Peck- 
ham,  25  Barb.  195. 

9  Lawrence  v.  Houghton,  6  Johns.  129 ;  "Webb  v.  Alexander,  7  Wend.  281. 

10  Smith  v.  Frost,  5  Hill,  431 ;    Groff  v.  Griswold,   1  Den.  432  ;   N.  Y.  Code  Civ. 
Pro.  §  938. 

11  Reno  v.  Pinder,  20  N.  Y.  298,  reVg,  24  Barb.  423. 


ACTIONS  ON  JUDGMENTS.  541 

A  judgment  of  a  district  court  of  the  city  of  New  York,  is 
proved  by  producing  the  summons,  with  entry  of  judgment  in- 
dorsed.1 

III.  RULES  PECULIAR  TO  JUDGMENTS  OF   COURTS  OF  SISTER 

STATES,   &o. 

15.  Different  methods  of  proof ^ — Judicial  proceedings  of  any 
other  State  in  the  Union,  are  entitled  to  full  faith  and  credit  un- 
der the  constitution,2  but  to  secure  the  constitutional  effect  for  a 
judgment  of  a  sister  State,  it  must  be  proved  in  conformity  with 
the  act  of  Congress,3  if  it  is  within  the  act.4     The  act  of  Congress 
passed  to  give  effect  to  this  provision,5  does  not  enable  us  to  prove 
all  judgments  of  sister  States,  but  only  those  of  courts  having  a 
record  and  a  clerk;  but,  on  the  other  hand,  the  mode  of  proof  it 
gives  extends  to  judgments  of  courts  of  territories,  including  the 
District  of  Columbia,6  and  those  of  any  country  under  the  juris- 
diction of  the  United  States.      The  act  does  not  exclude  other 
modes  of  authentication.7 

The  other  modes  are,  1.  That  prescribed  by  the  law  of  the 
forum  ; 8  2.  Those  sanctioned  by  the  common  law,9  viz.,  exempli- 
fication under  the  great  seal  of  the  State;10  original  record, 
proved  by  witness ; u  and,  examined  copy  proved  by  a  witness 
who  compared  it.13 

16.  What  judgments  may  be  proved  under  the  act.'] — A  judg- 
ment of  any  court  of  record 1S  (or  a  court  of  chancery  though  not 

1  Carpentier  v.  Willett,  6  Bosw.  25,  s.  c.  18  How.  Pr.  400. 

*  Const,  of  U.S.  art.  4,  §  1. 

3  Act  of  May  26,  1790 ;  same  stat.  R.  S.  U.  S.  §  905. 

4  DAVIS,  J.,  Caperton  v.  Ballard,  14  Wall.  242;    Homer  v.  Spellman,  78  111.  206. 
And  to  secure  a  review  in  the  U.  S.  Supreme  Court  of  a  refusal  of  the  right,  the  rec- 
ord must  show  that  the  provision  of  the  constitution  and  the  cl.iiin  thereon  were 
brought  to  the  notice  of  the  State  court.     Hoyt  v.  Shelden,  1  Black,  618. 

6  U.  S.  R.  S.  §905. 

•  Hughes  v.  Davis,  8  Md.  27. 

7  Kingman  v.  Cowles,  103  Mass.  283;  Snyder  v.  Wise,  10  Penn.  St.  157;  Ellmore 
v.  Mills,  1  Haywood  N.  C.  359 ;    Baker  v.  Fields,  2  Yeatos,  532.      Contra,  State  v. 
Twitty,  2  HawTcs  N.  C.  441 ;  Tarleton  v.  Briscoe,  1  Marsh.  (Ky.)  66. 

8  Latterett  v.  €ook,  1  Iowa,  1 ;  English  v.  Smith,  26  Ind!  445 ;    Phelps  v.  Tilton, 
14  Id.  222;  Ault  v.  Zehring,  38  Id.  429;  Dragoo  v.  Graham,  17  Id.  427  ;  Galling  v. 
Robbins,  8  Id.  184;  Snyder  v.  Wise,  10  Penn.  St.   157;    Coffee  v.  Nealy,  2  Heisk. 
(Tenn.)  804  ;  Capen  y.  Emery,  5  Mete.  (Mass.)  436 ;    Simons  v.  Cook,  29-Iowa,  824 ; 
Railroad  Bank  v.  Evans,  32  Id.  202  ;   Caulfield  v.  Bullock,  18  B.  Mour.  (Ky.)  494  ; 
Mangun  v.  Webster,  7  Gill.  (Md.)  178. 

9  Goodwyn  v.  Goodwyn,  25  Geo.  203 ;  Hutchins  v.  Gerrish,  52  N.  II.  205,  8.  c. 
13   Am.  R.   19 ;    Mahony  v.  Gunther,    10  Abb.  Pr.  435 ;    Peck  v.  Farrington,  9 
Wend.  44. 

10  Price  v.  Higgins,  1  Litt.  (Ky.)  273 ;  Haggin  v.  Squires,  2  Bibb,  334. 

11  Kean  v.  Price,  12  Serg.  «fe  R.  203. 

12  Hutchins  v.  Gerriah  (above).     Some  courts  also  allow  proof  by  a  certificate 
conforming  to  tho  law  of  the  State  where  the  judgment  was  rendered.      Belton  v. 
Fisher,  44  111.  32  ;  and  see  Williams  v.  Wilkes,  14  Penn.  St.  228 ;  Bissell  v.  Edwards, 
5  Day,  263. 

15  Thurber  v.  Blackbourne,  1  N.  II.  242;  Judkins  v.  Union  Mut.  Fire  Ins.  Co.  37 
Id.  470,    According  to  the  language  of  some  authorities  the  record  is  not  admissible 


54:2  ACTIONS  ON  JUDGMENTS. 

technically  a  conrt  of  record1),  within  the  United  States,8  or  dock- 
eted in  the  office  of  a  clerk  of  such  a  court,  under  a  statute  declar- 
ing that  eo  docketed  it  shall  be  considered  a  judgment  of  that 
court,3  may  be  proved  under  the  act. 

17.  Requisites  of  proof  under  the  act.~] — Four  things  consti- 
tute this  proof,  1.  "  A  copy  of  the  record  or  judicial  proceeding 
at  length? 

2.  "  The  attestation  of  the  clerk ;  and 

3.  "  The  seal  of  the  court  annexed,  if  there  be  a  seal,  together 
with; 

4.  "A  certificate  of  the  judge,  chief  justice,  or  presiding  mag- 
istrate, as  the  case  may  be,  that  the  said  attestation  is  in  due 
form."5 

18.  Certifying  officers."] — Where  a  judge  is  ex  officio  clerk, 
either  by  express  statute  or  by  implication — as  may  be  the  case 
with  a  surrogate,  or  a  justice  of  the  peace  whose  court  is  a  court 
of  record, — he  may 6  and  must 7  certify  in  each  capacity.     The  at- 
testation and  certificate  must  make  the  identity  of  the  certifying 
officers  clear.8    If  there  has  been  a  substitution  of  courts  and 
transfer  of  record,  the  clerk  and  judge  of  the  succeeding  court 
may  certify;9 and  a  statement  in  the  certificate  of  the  clerk10  or 

unless  founded  on  personal  service  or  appearance.  The  better  view  is  that  this  goes 
to  the  effect  of  the  judgment,  not  to  the  admissibility  of  the  document  in  evidence. 
Even  if  the  rule  be  to  some  extent  sound,  it  is  too  broadly  stated,  for  a  judgment  on 
an  award  of  arbitrators  under  the  statute  is  admissible.  Steeve  v.  Tenney,  50  N.  H. 
461.  But  a  replevin  bond  declared  by  statute  to  have  the  effect  of  a  judgment,  is 
not  within  the  act.  Foote  v.  Newell,  29  Mo.  400. 

There  is  no  presumption  as  to  whether  a  justice's  court  is  or  is  not  a  court  of  rec- 
ord within  this  rule.  The  State  statute  should  be  proved  to  show  the  fact.  Pelton 
v.  Platner,  13  Ohio,  209. 

A  new  record  made  by  order  of  court,  of  a  lost  or  destroyed  judgment,  may  be 
authenticated  umltr  the  act  of  Congress.  Robinson  v.  Simmons,  7  Phila.  1 27.  A 
judgment  of  a  proper  court,  though  rendered  by  a  temporary  judge,  is  within  the 
act  (Walker  v.  Sleight,  30  Iowa,  310);  but  a  judgment  of  special  commissioners  is 
not  (Taylor  v.  Barren,  30  N.  H.  78);  unless  by  reason  of  its  record  being  by  law 
part  of  the  records  of  a  court.  Taylor  v.  Barren,  35  Id.  484. 

1  McKim  v.  Odorn,  12  Me.  94;  Low  v.  Mussey,  41  Vt.  393;  Evans  v.  Tatem,  9 
Serg.  &  R.  852  ;  Moore  v.  A  die,  18  Ohio,  430. 

*  Or  a  country  subject  to  its  jurisdiction.  TJ.  S.  R.  S.  §  9f>5.  Including  courts  of 
the  United  States.  Buford  v.  Hickman,  Hempst.  232.  A  judgment  of  a  State  court 
may  be  thus  proved  although  at  the  time  the  judgment  was  rendered  the  State  was  in 
secession.  Steeve  v.  Tenney,  50  N.  H.  461.  But  the  effect  of  such  judgment  ia 
another  question.  Pennywit  v.  Kellogg,  1  Cin.  Super.  Ct.  17 ;  Penny  wit  v.  Foote,  27 
Ohio  St.  600.  The  question  of  full  faith  and  credit  is  another  matter. 

8  Upham  v.  Damon,  12  Allen,  98 ;  s.  P.  Clemmer  v.  Cooper,  24  Iowa,  185.  Com- 
pare Aldrich  v.  Chubb,  35  Mich.  350. 

4  A  copy  from  the  minutes  is  not  admissible  tinder  the  act.  Pepin  v.  Lachen- 
meyer,  45  N.  Y.  27  ;  Ferguson  v.  Narwood,  7  Cranch,  408. 

6  U.  S.  R.  S.  §  905. 

8  Van  Storch  v.  Griffin,  71  Penn.  St.  240;  Bissell  v.  Edwards,  5  Day  Conn.  363 ; 
Martin  v.  Wells,  43  Vt.  428. 

1  Duvall  v.  Ellis,  13  Mo.  203  ;  Catlin  v.  Underhill,  ,4  McLean,  199. 
8Kirkland  v.  Smith,  2  Mart.  La.  N.   S.  497;    Harper  v.  Nichol,  13  Tex.  161; 
Phelps  v.  Ti'.ton,  14  Ind.  222  ;  Geron  v.  Felder,  15  Ala,  304. 

9  Thomas  v.  Tanner,  6  Monr.  52 ;    Capen  v.  Emery,  5  Mete.  (Mass.)  436  ;   Man-  . 
ning  v.  Ilogan,  26  Mo.  570. 

J°  Darrah  v.  Wilson,  36  Iowa,  116;  Gatling  v.  Robbins,  8  Ind.  184. 


ACTIONS  ON  JUDGMENTS.  543 

judge1  showing  the  transfer  of  jurisdiction  and  change  of  name 
and  seal,  is  sufficient  prima  facie,  on  those  points,  without  other 
proof  of  the  law.2  But  this  is  not  essential.  The  court  may  even 
presume  a  change  in  the  legislative  apportionment  of  districts,  in 
order  to  render  the  record  and  the  certificate  consistent.3 

19.  Clerk's  attestation.'] — The  clerk's  attestation  is  to  be  in  a 
form  sanctioned  by  the  local  law  under  which  he  acts ;  but  the 
judge's  certificate  is  conclusive  evidence  that  it  is  so.     The  use  or 
the  word  "  record "  is  not  essential.4    It  need  not  certify  to  the 
official  character  of  the  judge  who  authenticates  the  clerk's  attes- 
tation;5 but  so  doing  does  not  prejudice.6    An  attestation  signed 
by  a  deputy  clerk  is  not  sufficient,  although  the  deputy  clerk  be 
authorized  by  the  law  of  the  State  to  certify,7  and  the  judge's 
certificate  states  that  he  is.8 

20.  Seal.] — The  seal  should  be  affixed  to  the  clerk's  attesta- 
tion or  to  the.record  itself  ;  rather  than  to  the  judge's  certificate 
attached.9    If  there  be  no  seal  that  fact  should  be  stated  in  the 
certificate  of  the  clerk  or  judge.10    A  statement  in  an  attestation 
expressed  to  be  by  the  clerk  of  the  court,  that  it  is  the  seal  of  his 
office  as  such,  sufficiently  imports  that  it  is  the  seal  of  the  court.11 

21.  Judges  certificate^ — The  certificate  of  the  judge  is  indis- 
pensable ; 12  and  should  be  annexed  to  the  copy  record.13    The  rec- 
ord or  certificate  must  indicate  that  the  certifying  officer  was  the 
judge,  chief  justice  or  presiding  magistrate.14    His  description  as 
such  appearing  either  upon  the  record  or  the  certificate,  is  enough.15 
If  it  appear  either  by  the  certificate  or  the  record  that  there  was 
more  than  one  judge,  it  must  also  appear  that  the  certifying 
judge  was  the  chief  justice  or  presiding  magistrate16  of  the  court,17 
or  was  a  legally  equivalent  officer,18  or  that  there  was  no  such  of- 


I  Capon  v.  Emery  (above). 

*  Gatling  v.  Robbing  (above). 

8  Hatcher  v.  Rocheleau,  18  N.  Y.  86. 

*  Grover  v.  Grover,  30  Mo.  400. 
6  Gavit  v.  Snowhill,  2  Dutch.  76. 

8  Young  v.  Chandler,  13  B.  Mon.  252. 

*  Lathrop  v.  Blake,  3  Penn.  St.  383.    Contra,  Greasons  v.  Davis,  9  Iowa,  219. 
8  Morris  v.  Patchin,  24  N.  Y.  894. 

*  See  Turner  v.  Waddington,  3  Wash.  C.  Ct.  126. 

10  Kirkland  v.  Smith,  2  Mart.  La.  N.  S.  497  ;  Alston  v.  Taylor,  1  Hnyw.  (Tenn.)  885. 

11  Clark  v.  Depew,  25  Penn.  St.  509;  Coffee  v.  Nealy,  2  Ueisk.  (Tenn.)  304. 

19  Hutchins  v.  Gerrish,  52  N.  H.  205,  s.  c.  Am.  R.  19,  and  cases  cited;  Barbour  v. 
Watts,  -2  Mars'i.  (Xy.)  290 ;  Craig  v.  Brown,  Pet.  C.  Ct  352. 

13  Norwood  v.  Cobb,  20  Tex.  588. 

14  Kirkhnd  v.  Smith,  2  Mart.  La.  N.  S.  497 ;  Settle  v.  Alison,  8  Geo.  201. 
"  Mudd  v.  Beauchamp,  Litt.  Sel.  Cas.  142. 

18  Stephenson  v.  Bannister,  3  Bibb  (Ky.)  369. 

II  Settle  v.  Alison,  8  Geo.  201 ;  Allen  v.  Allen,  Min.  (Ala.)  240. 

18  A  description  that  imports  merely  the  fact  of  having  presided  (Stephenson  v. 
Bannister,  3  Bibb  [Ky.],  369) ;  or  of  seniority  (Id.);  or  of  being  the  presiding  magis- 
trate of  the  county,  not  of  the  court  (Settle  v.  Alison,  8  Geo.  201).  is  not  enough. 
But  a  de scrip tiun  which  is  apparently  a  legal  title  of  the  head  of  the  court,  such  as 


544  ACTIONS  ON  JUDGMENTS. 

ficer.1  If  there  is  nothing  in  the  record  or  certificate  to  indicate 
that  there  was  more  than  one  judge  of  the  court,  it  will  not  be 
presumed  that  there  was  another ;  out  a  certificate  by  the  judge, 
whether  stating  that  he  is  sole  judge 2  or  not,8  is  admissible ;  and 
the  law  of  the  State  may  be  produced  to  show  whether  there 
was  more  than  one,4  and  whether  there  was  a  chief  justice  or  pre- 
siding magistrate.5 

It  is  essential  that  the  certificate  state  that  the  attestation  of 
the  clerk  is  in  due  form.6  On  this  point  it  is  conclusive.7 

The  certificate  itself  is  presumptive  proof  of  the  official  char- 
acter of  the  certifying  magistrate.8  It  need  not  certify  to  the 
clerk's  official  character,9  nor  to  his  signature,  nor  to  the  seal.10 
The  fact  that  its  date  is  later  than  that  of  the  clerk's  attestation  is 
held  not  an  objection,  even  though  it  state  that  the  clerk  is  clerk, 
not  that  he  was.11 

22.  Presumption  in  favor  of  jurisdiction.™] — Xhe  whole  rec- 


"  President"  of  the  court,  is  (Gavit  v.  Snowhill,  2  Dutch.  76.  Contra,  Hudson  T.  Daily, 
13  Ala.  722).  So  if  the  court  is  chancery,  tho  chancellor's  certificate  is  enough 
(Scott  v.  Blanchard,  8  Mart.  La.  N.  S.  303). 

1  Slaughter  v.  Cunningham,  24  Ala.  261. 

8  Van  Storh  v.  Griffin,  71  Penn.  240;  Pearl  v.  Wellmann,  3  Gilm.  311. 

8  Central  Bank  v.  Veasey,  14  Ark.  672;  Butler  v.  Owen,  2  Eng.  (Ark.)  369. 

4  Bennett  v.  Bennett,  Deady,  299. 

6  Foster  v.  Taylor,  2  Overt.  (Tenn.)  191,  and  see  Huff  v.  Campbell,  1  Stew.  <fe  P. 
(Ala.)  643. 

6  Smith  v.  Blagge,  1  Johns.  Gas.  238 ;  Trigg  v.  Conway,  Hempst.  538 ;   Craig  v. 
Brown,  Pet.  C.  Ct.  352  ;  Duvall  v.  Ellis,  13  Mo.  203  ;  Snyder  v.  Wise,  10  Penn.  St.  ]  57. 
It  is  not  necessary  to  say  "  in  due  form  of  law."  Blair  v.  Caldwell,  3  Mo.  353  [249]  ; 
Grover  v.  Grover,  30  Mo.  400. 

7  Hatcher  v.  Rocheleau,  18  N.  Y.  86,  and  cases  cited. 

8  Hatcher  v.  Rocheleau,  18  N.  Y.  86. 

9  Ducommon  v.  Hysinger,  14  III  249;  McQueen  v.  Farron,  4  Mo.  212;  Linch  v. 
McLemore,  15  Ala.  632. 

10  Cases  in  note  (above). 

11  Lothrop  v.  Blake,  3  Penn.  St.  483. 

12  The  great  conflict  of  opinion  presented  in  the  books,  on  this  point,  and  on  the  con- 
nected question  of  the  effect  of  a  judgment,  prevents  the  reader  from  reaching  a  firm 
conclusion  as  to  how  far  he  may  rely  on  this  presumption,  unless  he  takes  care  to 
appreciate  the  change  in  the  interpretation  of  common  law  rules  which  a  century  of 
experience  under  the  American  judicial  organization  and  practice  has  wrought. 
Anciently,  tribunals  of  special  statutory  origin  and  powers  were  not  favored  with 
this  presumption  by  the  great  courts  which  represented  the  king  and  derived  their 
authority  from  the  royal  writ;  but  by  far  the  greater  number  of  American  courts  of 
general  jurisdiction,  although  proceeding  by  personal  service  and  hearing,  according 
to  the  methods  of  the  great  common  law  and  equity  courts,  have  a  statutory  origin, 
and  rely  upon  the  statute  for  the  definition  of  their  powers.    Moreover,  the  univer- 
sality of  written  records  has  confused  the  line  of  distinction  between  courts  of  record 
and  not  of  record.     Again,  a  judgment,  once  considered  to  be  the  voice  of  the  court, 
and  therefore  the  most  solemn  of  utterances,  importing  absolute  verity,  is  recognized, 
under  the  new  procedure,  as  the  act  of  the  attorney,  done  under  the  supervision  or 
sanction  of  the  court  or  its  clerk ;  and  hence  is  open  to  inquiry  on  almost  every 
point  except  the  merits  of  the  adjudication  and  the  formality  of  proceeding  and  suffi- 
ciency of  evidence  by  which  that  adjudication  was  reached.     Lastly,  great  advance 
has  recently  been  made  in  the  application  of  the  constitutional  rule  of  "  full  faith  and 


ACTIONS  ON  JUDGMENTS.  545 

ord  of  the  proceedings  on  which  the  judgment  depends  should 
be  produced,  in  order  to  show  how  far  it  may  be  conclusive.  The 
transcript  must  show  that  the  proceedings  are  clothed  with  the 
forms  necessary  to  the  validity  of  a  judgment  in  the  State  from 
which  it  comes.1  Subject  to  this  general  rule,  which,  of  course, 
involves  a  consideration  of  the  requisites  of  a  judgment  by  the 
law  of  the  sister  State,  the  following  presumptions  apply.  Re- 
citals of  jurisdictional  facts  in  the  judgment  are  presumptive,  but 
not  conclusive  evidence  of  those  factsX  To  render  the  judgment 
presumptively  valid,  it  is  enough,  in  the  first  instance,  if  it  ap- 
pear either  from  averment  or  proof  in  the  record,  that  the  court 
had  jurisdiction  of  the  subject,  and  of  the  parties,3  and  that  the 
judgment  was  actually  rendered.  The  courts  may  take  judicial 
notice  as  to  whether  the  court  of  the  other  State  is  by  its  law  a 
court  of  general  jurisdiction ; 4  or  whether  it  had  jurisdiction  of 
a  special  and  statutory  proceeding ; 5  and  it  is  its  duty  to  do  so  if 
the  record  is  proved  under  the  act  of  Congress. 

If  the  court  be  one  of  general  jurisdiction  in  respect  of  sub- 
jects,6 and  proceeding  within  the  general  scope  of  its  power, 
although  it  be  a  local  court,7  the  law  presumes  that  it  had  juris- 
diction of  the  subject-matter,8  and  that  it  acquired  jurisdiction  of 
the  person,9  unless  something  to  indicate  the  contrary  appears  in 
the  record.10  The  same  principle  applies,  even  though  the  pro- 
ceeding be  under  a  special  statute,  or  in  the  exercise  of  probate 
or  admiralty  jurisdiction,11  if  only  it  be  by  service  of  process  per- 
sonally or  in  rem,  in  substantial  accord  with  common  law  or 
equity  principles  as  to  acquiring  jurisdiction  by  personal  service 


credit."  The  rules  of  presumption  stated  in  the  text  are  in  consonance  with  the 
latest  decisions  of  our  courts  having  highest  authority  on  these  questions,  bat  numer- 
ous earlier  cases,  contrary  to  these  conclusions,  which  space  does  not  allow  us  to  cite, 
may  be  found  in  the  reports. 

1  McLaren  v.  Kehler,  23  La.  Ann.  80,  s.  c.  8  Am.  R.  591. 

»  Porter  v.  Bronson,  19  Abb.  Pr.  236,  8.  c.  29  How.  Pr.  292. 

3  Maxwell  v.  Stewart,  22  Wall.  77;  Sweeny  v.  Lomme,  Id.  213. 

4  Rae  v.  Hulbert,  17  111.  672;  Butcher  v.  Bank  of  Brownsville,  2  Kans.  70;  Munn 
v.  Sturges,  22  Ark.  389;  Buffutn  v.  Stimpson,  5  Allen,  691 ;  Clarke's  Adm'r  v.  Day, 
2  Leigh  (Va.),  172 ;  Kemp  v.  Mundell,  9  Id.  12  ;  Coffee  v.  Nealy,  2  Heisk.(Tenn.)  804. 

6  Folger  v.  Columbian  Ins.  Co.  99  Mass.  267  ;  8.  p.  Mills  v.  McCabe,  44  III.  194. 

6  For  the  distinction  between  the  territorial  and  the  subject  limits  of  jurisdiction, 
see  Landers  v.  The  Staten  Island  Ferry  Co.  18  Abb.  Pr.  N.  S.  338. 

'Such  as  the  usual  American  circuit  courts,  courts  of  common  pleas  (Harvey  v. 
Tyler,  2  Wall.  328) ;  and  although  it  be  subject  to  appeal  (Id.).  Contra,  McLaughlin 
V.  Nichols,  13  Abb.  Pr.  244. 

8  Unless  it  be  of  a  nature  not  cognizable  without  statute  authority,  such  as  divorce. 
Commonwealth  v.  Blood,  97  Mass.  638. 

9  Voorhees  v.  Bank  of  U.  8.  10  Pet.  449 ;  Harvey  v.  Tyler,  2  Wall.  842 ;  Galpin 
v.  Page,  18  Id.  360;  Reber  v.  Wright,  68  Penn.  St.  471;  Dunbar  v.  Ilallowell,  34 
111.  168;  Wilcox  v.  Knssick,  2  Mich.  166.    Compare  City  Bank  v.  Dearborn,  20  N.  Y. 
244.    This  presumption  avails  even  against  infant  defendants.    Bosworth  v.  Vande. 
walker,  63  N.  Y.  597. 

10  Galpin  v.  Page,  18  Wall.  360. 
"  Harvey  v.  Tyler,  2  Wall.  322. 

35 


546  ACTIONS  ON  JUDGMENTS. 

and  opportunity  of  hearing ; l  but  if  the  statute  forbids  a  judg- 
ment except  on  certain  conditions,  the  record  should  show  the 
existence  of  the  conditions.2 

If  the  court  be  an  inferior  court  of  special  and  limited  juris- 
diction, neither  jurisdiction,8  nor  the  want  of  it,4  is  presumed. 
Kecitals  of  the  jurisdictional  facts,  if  contained  in  the  record,  are 
(under  the  rule  of  full  faith  and  credit),6  usually  presumptive, 
but  never  conclusive,6  evidence  of  such  facts.  If  the  recitals  are 
lacking,  the  fact  may  be  supplied  by  extrinsic  evidence,7  unless 
the  proceeding  is  a  special  statutory  one  in  derogation  of  the 
common  law,  and  exercised  in  a  summary  manner.  In  that  case, 
whatever  the  court,  these  presumptions  cannot  be  relied  on.8 

In  respect  to  all  the  classes  of  courts  and  proceedings  I  have 
mentioned,  if  jurisdiction  is  once  thus  established,  a  conclusive 
presumption  arises  that  it  was  exercised  regularly  and  without 
error,9  except  in  the  case  of  a  judgment  by  confession,  respecting 
which  the  presumption  is  not  conclusive  as  to  legality. 

The  ordinary  presumption  that  a  public  officer  has  done  his 
duty  cannot  supply  the  absence  of  evidence  of  a  vital  jurisdic- 
tional fact  in  any  judgment.10  But  where  the  substantial  fact  is 
shown,  the  presumption  may  supply  details  of  time,  place,  and 
manner,  although  these  be  necessary  to  the  validity  of  the  act.11 

23.  Service.] — When  the  record  sets  forth  the  manner  of  the 
service,  courts  of  another  State  will  examine  it  to  see  if  it  gave 
jurisdiction.12  The  record  is  not  unavailing  because  the  only  proof 
of  service  is  by  an  informal  return,13  nor  because  defendant's  first 
name  is  stated  by  initial  only.14  If  an  official  return  of  service  is 
signed  by  deputy,  it  is  presumed  that  he  was  authorized.15  A 
general  indication  of  service  without  saying  on  all,  implies  service 
in  all  ;16  but  a  statement  of  service  on  a  part,  implies  non-service 
of  the  others.17  A  general  statement  of  service  implies  that  serv- 


1  Harvey  T.  Tyler,  2  Wall.  342;  Galpin  v.  Page,  18  Wall.  850;  Potter  v.  Mer- 
chants' Bank,  28  N.  T.  641. 

4  Allen  v.  Blunt,  1  Blatchf.  480 ;  Harvey  v.  Tyler  (above). 

»  People  v.  Van  Alstyne,  32  Barb.  181. 

4  Reno  v.  Pinder,  20  N.  Y.  298,  and  cases  cited,  rev'g  24  Barb.  423. 

8  Paragraph  15. 

6  Bolton  v.  Jacks,  6  Robt.  166,  200. 

7  Van  Deusen  v.  Sweet,  51  N.  Y.  378;  and  see  Bolton  v.  Jacks  (above).     Contra, 
Simmons  v.  De  Barre,  4  Bosw.  548,  s.  c.  8  Abb.  Pr.  269,  affi'g  6  Id.  188 ;  Powers  v. 
People,  4  Johns.  292. 

»  Harvey  v.  Tyler  (above). 

•  Comstock  v.  Crawford,  3  Wall.  896  ;  Lynch  v.  Bernal,  9  Id.  815. 

10  See  Improvement  Co.  v.  Munson,  14  Wall.  550;  and  p.  119,  n.  of  this  vol. 

11  Sheldon  v.  Wright,  7  Barb.  39;  and  see  p.  202  of  this  voL 
"  Ewer  v.  Coffin,  1  Cush.  (Mass.)  23. 

18  Such  as  "served"  (Latterett  v.  Cook,  1  Iowa,  1);  or  "executed"  (Welson  v. 
Jackson,  10  Mo.  329;  Blackburn  v.  Jackson,  22  Id.  308). 

14  Martin  v.  Barron,  37  Mo.  301. 

15  State  v.  Williamson,  57  Mo.  192.     Compare  Bosworth  v.  Vandewalker,  63  N.  Y. 
697. 

'•  Bosworth  v.  Vandewalker,  63  N.  Y.  697 ;  Secrist  v.  Green,  3  WalL  761. 
"  Galpin  v.  Page,  18  WaJL  351  ;  Rape  v.  Heaton,  9  Wise.  328. 


ACTIONS  ON  JUDGMENTS.  547 

ice  was  made  at  a  proper  place,1  and  in  a  proper  manner; 2  but  a 
statement  of  service  at  a  place  without  the  jurisdiction,  implies 
that  no  service  of  the  same  defendant  was  made  within  the  juris- 
diction.3 

24.  Constructive  service*'] — Neither  constructive  service  on  a 
non-resident 5  (whether  by  publication,6  attachment  of  property,1 
leaving  at  abode,8  or  by  personal  service  on  defendant's  joint  ob- 
ligor),9 nor  actual  notice  to  any  defendant  without  service,10  nor 
actual  service  without  the  State,11  (though  it  be  sufficient  to  give 
jurisdiction  in  rem)^2  is  sufficient  to  make  the  judgment  evidence 
of  a  debt  against  defendant.13  Evidence  in  the  record,  or  extrin- 
sic to  it,  that  the  defendant  was,  at  the  time  of  the  alleged  service 
upon  him,  beyond  the  reach  of  the  process  of  the  court,  raises  a 
presumption  of  want  of  jurisdiction  for  this  purpose.14 

If  regular  constructive  service  is  shown,  it  not  appearing 
whether  the  person  so  served  was  a  resident  or  not,  juris- 
diction is  presumed,  if  residence,  domicil  or  citizenship  could 
give  it,  and  the  burden  is  on  defendant  to.  show  the  contrary." 
No  substantial  element  of  constructive  service  will  be  presumed 
in  aid  of  the  jurisdiction  ; 16  but  if  substantial  service,  by  publica- 
tion or  otherwise,  appears,17  and  the  court  rendering  judgment 
declared  the  proof  of  regularity  sufficient,  the  existence  of  inci- 
dental facts  may  be  presumed  in  aid  of  its  jurisdiction.18 


1  State  v.  "Williamson,  67  Mo.  192;  Knowles  v.  Gas-light  Co.  19  Wall.  61. 
s  Lackland  v.  Pritcbett,  12  Mo.  484. 

8  Galpin  v!  Page,  18  Wall.  350.  For  the  mode  of  proving  territorial  boundaries, 
see  United  Stales  v.  Jackalow,  1  Black.  484,  487. 

4  For  cases  on  constructive  service,  see  Earle  v.  McVeigh,  91  U.  S.  (1  Otto),  603. 

5  Knowles  v.  Gas-light  Co.  19  Wall.  61.     As  to  constructive  service  on  residents, 
see  Henderson  v.  Stamford,  105  Mass.  504  ;    Stockwell  v.  McCraken,  109  Mass.  84 ; 
Holt  v.  Alloway,  2  Blackf.  108 ;  Buford  v.  Kirkpatrick,  13  Ark.  33. 

6  Pennoyer  v.  Neff,  95  U.  S.  (5  Otto),  714. 

1  Bicknell  v.  Field,  8  Paige,  440 ;  Rice  v.  Hickok,  39  Vt.  292 ;  Thompson  v.  Env 
mert,  4  McLean,  96.  Contra,  see  Arndt  v.  Arndt,  15  Ohio,  33. 

8  Compare  Jardine  v.  Reichert,  10  Vroom,  165  ;  Barney  v.  White,  46  Mo.  137. 

9  D'Arcy  v.  Ketchum,  11  How.  U.  S.  165  ;  Phelps  v.  Brewer,  9  dish.  (Mass.)  390; 
Board  of  Public  Works  v.  Columbia  College,  17  Wall.  621 ;  Hall  v.  Loaning,  91  U.  S. 
(1  Otto),  160. 

10  Woodward  v.  Tremere,  6  Pick.  354. 

11  Ewer  v.  Coffin,  1  Cush.  23;  Price  v.  Hickok,  39  Vt.  292. 
19  Cooper  v.  Reynolds,  10  Wall.  318. 

13  Eastman  v.  Wadleigh,  65  Me.  251,  s.  c.  20  Am.  R.  695  ;  Pennoyer  v.  Neff,  95  U.  S. 
(5  Otto),  714,  affi'g  3  Sawy.  274.     But  jurisdiction  of  the  original  action  being  shown, 
constructive  notice  of  appeal  will  sustain  a  judgment  on  appeal.     Nations  v.  Johnson, 
24  How.  U.S.  195. 

14  Gray  v.  Larrimore,  2  Abb.  U.  S.  542 ;  Galpin  v.  Page,  18  Wall.  860. 

15  Bissell  v.  Wheelock,  11  Cu.*h.  (Mass.)  279  ;  Stockwell  v.  McCraken.  109  Mass.  84; 
Barney  v.  White,  46  Mo.  137 ;  Jones  v.  Warner,  81  111.  343  ;  Holt  v.  Alloway,  2  Blackf. 
(Ind.)  103 ;  and  sec  Munn  v.  Sfurges,  22  Ark.  3S9.     Otherwise  of  judgments  of  divorce 
and  the  like. 

»  Galpin  v.  Page,  18  Wall.  350. 

»  Smith  v.  Pomeroy,  2  Dill.  0.  Ct.  420. 

18  Such  as  the  proximity  of  the  paper  (Secrist  v.  Green,  3  Wall.  761);  the  use  of 
the  complaint,  on  file,  ns  an  affidavit  (Neff  v.  Pennoyer,  3  Sawyer,  274);  the  residence 
of  the  notary  verifying  it  (Mosher  v.  Heydrick,  45  Barb.  649),  and  the  like. 


548  ACTIONS  Off  JUDGMENTS. 

25.  Appearance.'] — Apparently  regular  appearance    is    pre- 
sumptively equivalent  to  process  and  service.1    A  record  which 
shows  that   the   party  appeared   by  attorney,3  though  without 
proof  of  the  attorney's  authority,  is prima fade  sufficient;3  even 
though  the  action  was  commenced  by  publication,  &c.,  and  the 
summons  and  proof  of  publication  do  not  appear  on  the  record.4 

Where  the  jurisdiction  depends  upon  appearance,  defendant 
may  prove,  under  proper  allegation,  that  he  was  never  served 
with  process,  did  not  know  of  the  action,  did  not  authorize  any 
one  to  appear,  and  he  had  a  good  defense  upon  the  merits.5 
Retainer  by  partner  is  not  enougn.6 

26.  Effect  of  judgment^ — A  judgment  of  a  sister  State,  if  thus 
authenticated,  or  if  duly  proved  in  another  mode  because  the  court 
has  not  a  clerk  and  record,7  is  entitled  to  such  faith  and  credit8 
as  it  has  by  law  or  usage  in  the  courts  of  the  State  from  whence 
the  record  is  taken ; 9  except  that  neither  the  recitals  nor  the 
proof,  contained  in  the  record,  of  any  jurisdictional  fact,  are  con- 
clusive.10   Unless  so  brought  within  the  constitutional  clause,  the 
judgment  of  a  sister  State  is  merely  prima  facie  evidence.11     The 
faith  and  credit  thus  secured,  extends  not  only  to  the  form  of 
the  record,  but  to  its  effect  as  an  adjudication  ;  ®  not,  however,  to 


1  Moore  v.  Spackman,  12  Serg.  &  R.  287.  An  admission  or  evidence  that  there 
was  no  personal  service  does  not  necessarily  impugn  an  appearance.  Eldred  v.  Bank, 
17  Wall.  552;  and  see  Whittaker  V.  Murray,  15  111.  293. 

8  For  example,  by  the  usual  formal  recital,  "  and  now  at  this  day  come  the  parties 
aforesaid,  by  their  attorneys,"  <fcc.  (Landes  v.  Brant,  10  How.  U.  S.  848;  and  see  At. 
kins  v.  Disintegrating  Co.  18  Wall.  272);  or  by  the  entry  of  the  attorney's  name  upon 
the  record  of  the  judgment  in  the  mode  usual  (Bank  of  Middletown  v.  Huntington,  13 
Abb.Pr.  402);  or  by  filing  a  plea  (Eldred  v.  Bank,  17  Wall.  551). 

8  Hill  v.  Mendenhall,  21  Wall.  454;  Rogers  v.  Burns,  27  Penn.  St.  535. 

4  Maxwell  v.  Stewart,  22  Wall.  77.  For  withdrawal  of  appearance  and  its  effect, 
see  Creighton  v.  Kerr,  20  Wall.  13,  and  cases  cited;  Eldred  v.  Bank,  17  Id.  551. 

6  Marx  v.  Fore,  51  Mo.  69,  s.  c.  11  Am.  R.  432,  and  note;  Hill  v.  Mendenhall,  21 
Wall.  454. 

6Phelps  v.  Brewer,  9  Gush.  390;  Boylan  v.  Whitney,  3  Ind.  140;  Eager  v. 
Stover,  59  Mo.  87.  Contra,  Marks  v.  Fordyce,  2  Am.  L.  Rev. ;  Dennison  v.  Hyde,  6 
Conn.  508. 

1  Silver  Lake  Bank  v.  Harding,  5  Ohio,  545;  Tyler's  Exr.  v.  Winslow,  15  Ohio 
St.  364;  Stockwell  v.  Coleman,  10  Id.  .33;  Kuhn  v.  Miller's  Adm.,  1  Wright  (Ohio), 
127;  Dragoo  v.  Graham,  9  Ind.  212. 

8  No  greater.     Public  Works  v.  Columbia  College,  17  Wall.  629. 

9  U.  S.  R.  S.  §  905,  last  clause;   Mills  v.  Duryee,  7  Cranch,  484;   any  statutes  of 
the  State  where  it  is  set  up,  notwithstanding.     Christmas  v.  Russell,  5  Wall.  302. 

10  Thompson  v.  Whitman,  18  Wall.  468.     Contra,  Burtners  v.  Reran,  24  Gratt.  42. 
The  English  rule  adopted  in  some. of  the  States,  that  the  judgment  imports  absolute 
verity  even  as  to  jurisdictional  statements,  can  have  no  extra  territorial  force,  even 
under  the  full  faith  and  credit  clause  of  the  constitution.     Id.     Contra,  Logansport 
Gas-light  Co.  2  Dill.  C.  Ct  421.     Some  authorities  concede  conclusive  effect  to  an  ex- 
press adjudication  of  a  jurisdictional  fact,  or  to  proof  embodied  in  the  record,  Avhich 
they  deny  to  recitals.     See  Watson  v.  New  England  Bank,  4  Mete.  (Mass.)  343  ; 
Hall  v.  Williams,  6  Pick.  232;  Aldrich  v.  Kenney,  4  Conn.  570. 

11  Taylor  v.  Brown,  80  N.  II.  78,  97;  Kean  v/Rice,  12  Serg.  &  R.  203;  Ellsworth 
v.  Barstow,  7  Watts  (Penn.),  314.     Compare  Gleason  v.  Dodd,  4  Mete.  (Mass.)  333; 
Roberts  v.  Hodges,  16  N.  J.  Eq.  299. 

14  Crapo  v.  Kelly,  16  Wall.  610. 


ACTIONS  ON  JUDGMENTS.  549 

entitle  the  party  to  the  remedies  of  enforcement  given  only  by 
the  law  of  the  State  where  it  was  recovered.1 

27.  Justice's  judgments^] — Common  law  proof  may  be  resorted 
to ; 2  and  in  such  case  plaintiff  should  prove  the  statute  under 
which  the  court  was  held,  and  that  the  justice  had  jurisdiction 
of  the  subject  and  of  defendant's  person.3  A  mode  of  proving 
justics's  judgments  of  a  sister  State,  is  provided  by  the  statute 
in  New  Y ork 4  and  some  other  States.  If  there  is  a  record,  and 
a  clerk,  or  the  justice  is,  by  law,  clerk,5  they  may  be  proved  with 
better  effect  under  the  act  of  Congress. 

23.  Former  adjudication. .] — A  decision  of  the  court  of  the 
sister  State,  against  the  grounds  alleged  in  impeachment  of  a 
judgment,  is  available  as  res  adjudicata* 

29.  Appeal  pending.'] — Proof  that  an  appeal  is  pending  does 
not  bar  the  action,  without  proof  that,  by  the  law  of  the  other 
State,  such  appeal  stays  proceedings.7    The  court  may  take  judi- 
cial notice  of  the  law,8  or  it  may  be  proved.9 

30.  Limitations.'] — The  statute  of  limitations  of  the  State  in 
whose  court  the  action  is  brought,  applies.10     But  the  presump- 
tion of  payment  by  the  law  of  the  State  where  the  judgment  was 
recovered,  avails." 

IY.   UNITED  STATES  COURTS  AND  THEIR  JUDGMENTS. 

31.  Judgments  of  those  courts  proved  elsewhere^] — The  act  of 
Congress 12  permits,13  but  does  not  require 14  such  a  judgment  to  be 
authenticated  as  there  prescribed,     it  may  be  received  in  any 
State  court,  when  authenticated  in  the  ordinary  method  practiced 
in  the  courts  of  the  State  within  whose  limits  it  was  recovered.15 


1  Brengle  v.  McClellan,  7  Gill  &  J.  434. 

2  McEliatrick  v.  Taft,  10  Bush  (Ky.),  160;  Graham  v.  Grigg,  3  Harr.  (Del.)  408; 
Bissell  v.  Edwards,  5  Day  (Conn.),  363. 

3  Thomas  v.  Robinson,  3  Wend.  267;    Cole  v.  Stone,  Hill  &  D.  Supp.  360;    Betts 
v.  Bagley,  12  Pick.  572. 

4  N.  Y.  Code  Civ.  Pro.  §§  948,  951.     See  paragraphs  2,  15,  Ac. 

6  Hutchins  v.  Gerrish,  62  N.  H.  205,  s.  c.  13  Am.  R.  19;  Carpenter  v.  Pier,  30 
Vt.  81. 

8  Dobson  v.Pearce,  12  N.  Y.  156;  McLaren  v.  Kehler,  23  La.  Ann.  80,  s  o  8  Am 
R.  591. 

'  Faber  v.  Hovey,  117  Mass.  107,  s.  c.  19  Am.  R.  398;  Taylor  v.  Shew,  39  Cal. 
536,  s.  c.  2  Am.  R.  478. 

8  Paine  v.  Schenectady,  11  R.  I.  411,  s.  c.  5  Centr.  L.  J.  517. 

9  Holton  v.  Gleason,  26  N.  H.  501. 

10  Napier  v.  Gediere,  1  Speers'  Eq.  (So.  Car.)  2"15;    Estes  v.  Kyle,  Meigs  (Tenn.), 
84;  State  v.  Virgin,  36  Geo.  388;  McArthur  v.  Goddin,  12  Bush,  274;    Longland  v. 
Davidson,  3  Clark  I'enn.  L.  J.  R.  377. 

11  Baker  v.  Stonebraker,  36  Mo.  338,  848. 
111  Paragraph  15. 

13  Helen  v.  Shackelford,  5  J.  J.  Marsh.  (Ky.)  390 ;    Redman  v.  Gould,  7  Blackt 
(Ind.)  361  ;  Buford  v.  llickman,  Hemp.  232. 

14  Turnbull  v.  Pnyson,  95  U.  S.  (5  Otto),  418    . 

"Jenkins  v.  Kinsley,  8  Johns.  Cas.  474,  s.  c.  Col.  <fe  C.  Caa.  136;  Turnbull  v. 
Payson  (above). 


550  ACTIONS  ON  JUDGMENTS. 

By  the  New  York  statute,  any  record  or  proceeding  of  a  court  of 
the  United  States,  may  be  proved  by  a  copy  certified  by  the  clerk 
or  officer  in  whose  custody  it  is  required  by  law  to  be.1  In  a  State 
court,  the  judgment  of  a  United  States  court  is  open  to  inquiry 
in  respect  to  jurisdiction ;  but,  jurisdiction  appearing,  is  conclu- 
sive on  the  merits.2 

32.  The  practice  in  the  United  States'  courts.] — The  record 
or  proceeding  of  any  court  of  the  United  States  may  be  proved  in 
any  other  court  of  the  United  States  by  the  certificate  of  the  clerk 
of  the  court  where  it  was  recovered,  with  the  seal  of  the  court, 
without  the  certificate  of  a  judge.8    That  of  a  State  court  may  be 
proved  under  the  act  of  Congress,4  or  (perhaps  with  less  effect) 
in  any  common  law  mode.    If  the  United  States  court  is  a  circuit 
court  sitting  in  the  same  State  as  the  court  whose  judgment  is 
offered,  a  certificate  of  the  clerk  and  seal  of  the  court  is  a  sufii- 
cient  authentication.5 

V.   FOREIGN  JUDGMENTS. 

33.  Mode  of  proof  J\ — Proceedings  of  a  court  of  a  foreign 
State  or  province,  cannot  be  proved  by  a  mere  certified  copy  under 
seal.6    They  may  be  proved  by  sworn  copy,7  by  an  exemplifica- 
tion,8 or  in  any  mode  prescribed  by  the  law  of  the  forum.9    If  in 
a  foreign  language,  a  translation  is  competent,10  if  sworn  to  by  a 


1  N.  Y.  Code  Civ.  Pro.  §  943.     Seal  was  formerly  required. 

9  McCauley  v.  Hargroves,  48  Geo.  50,  s.  c.  15  Am.  R.  660. 

s  Turnbull  v.  Payson,  95  U.  S.  (5  Otto),  424. 

4  Paragraph  16. 

6  Mewster  v.  fepalding,  6  McLean,  24 ;  Turnbull  v.  Payson  (above). 

6  Delafield  v.  Hand,  3  Johns.  810.     Compare  Packard  v.  Hill,  7  Cow.  434 ;  Ali- 
von  v.  Fnrnival,  1  C.  M.  &  K.  277 ;  Alves  v.  Banbury,  4  Campb.  28. 

7  Lincoln  v.  Battelle,  6  Wend.  445  ;  but  not  by  a  copy  of  a  copy.     Id. 
8Mahui-in    v.  Bickford,   6  N.  H.    567;    Church  v.  Hubbart,  2   Cranch,   238; 

Hutchina  v.  Gerrish,  52  N.  H.  205,  s.  c.  13  Am.  R.  19. 

9  By  the  New  York  statute  (Code  Civ.  Pro.  §  952),  a  copy  of  a  record,  or  other 
judicial  proceeding,  of  a  court  of  a  foreign  country  (or  province  ;  Lazier  v.  West- 
cott,  26  N.  Y.  146),  is  admissible  when  authenticated:    1.  By  the  attestation  of  the 
clerk  of  the  court,  with  the  seal  of  the  court  affixed,  or  of  the  officer  in  whose  cus- 
tody the  record  is  legally  kept,  umler  the  seal  of  his  office:    with,  (2)  a  certificate  of 
the  chief  judge  or  presiding  magistrate  of  the  court,  to  the  effect  that  the  person  so 
attesting  the  record,  is  the  clerk  of  the  Court;   or  that  he  is  the  officer  in  whose  cus- 
tody the  record  is  required  by  law  to  be  kept;   and  that  his  signature  to  the  attesta- 
tion is  genuine:    and,  (3)  the  certificate,  under  the  great  or  principal  serl  of  the 
government  (colonial  or  national),  under  whoso  authority  the  court  is  held,  of  the 
secretary  of  State,  or  other  officer  having  the  custody  of  that  seal,  to  the  effect  that 
the  court  is  duly  constituted,  specifying  generally  the  nature  of  its  jurisdiction  ;  and 
that  the  signature  of  the  chief  judge  or  presiding  magistrate,  to  the  certificate  speci- 
fied in  the  last  subdivision,  is  genuine.     A  copy  attested  by  the  seal  of  the  court,  in 
which  it  remains,  is  also  admissible  upon  due  proof:   1.  That  it  has  been  compared 
by  the  witness  with  the  original,  and  is  an  exact  transcript  of  the  whole  of  the  orig- 
inal ;   2.  That  the  original  was,  when  the  copy  was  made,  in  the  custody  of  the  clerk 
of  the  court,  or  other  officer  legally  having  charge  of  it ;  and  3.  That  the  attestation 
is  genuine. 

10  Hill  v.  Packard,  5  Wend.  376. 


ACTIONS  ON  JUDGMENTS.  551 

• 

witness.1  The  court  may  take  judicial  notice  as  to  whether  a 
foreign  court  proceeds  according  to  the  course  of  the  common 
law.8 

34.  Effect^\ — The  admissibility  of  the  document  does  not  de- 
termine what  effect  it  has  as  evidence.3  The  record  may  be  con- 
tradicted as  to  all  jurisdictional  facts.4  If  jurisdiction  depends 
on  even  personal  service  on  a  non-resident  of  the  foreign  state, 
made  without  its  territorial  limits,  it  is  not  evidence  of  debt 
against  him  here,5  even  though  he  gave  a  personal  admission  of 
service.6 


.'  Vandervoort  v.  Smith,  2  Cai.  165. 
s  Lazier  v.  Westcott,  26  N.  Y.  146. 

3  N.  Y.  Code  Civ.  Pro.  §  954. 

4  Hall  v.  Lanning,  91  U.  S.  (1  Otto),  165.     Including  the  attorney's  authority  to 
appear.     Arnott  v.  Wtbb,  1  Dill.  C.  Ct.  362. 

*  Bischoff  v.  Wethered,  9  Wall.  814. 

6  Scott  v.  Noble.  72  Penn.  St.  (22  P.  F.  Smith),  115,  s.  o.  13  Am.  R.  668. 


CHAPTER  XXX. 


ACTIONS  AGAINST  BAILEES,  AGENTS,  <fco. 


I.  GENERAL  PRINCIPLES. 

1.  Grounds  of  action. 

2.  Contract  of  bailment. 

8.  Oral  evidence  to  vary  writing. 
4.  Plaintiff 's  title. 
6.  Eviction. 

6.  Burden  of  proof  as  to  breach  of 

duty. 

7.  Qualified  refusal. 

8.  Value  and  damage. 

II.  RULES    PECULIAR    TO    PARTICULAR  AOEN- 

CIE8   AND    BAILMENTS. 

9.  Gratuitous  bailments. 

10.  Attorneys. 

11.  Brokers. 

12.  Collecting  Bankers. 

13.  Factors. 

14.  Forwarders. 

15.  Hirers  of  chattels. 

16.  Innkeepers. 

17.  Pledges. 

18.  Tows. 

19.  Warehousemen. 

20.  Wharfingers. 

?II.    ACTIONS   AGAINST  COMMON  CARRIERS  OF 
GOODS. 

21.  Defendant  a  common  carrier. 
*  22.  Delivery  to  carrier. 

23.  Authority  of  receiving  agent. 

24.  Implied  contract. 

25.  Address ;  Instructions ;  "C.  O.  D." 

26.  Express  contract. 

27.  Authority  to  make  special  con- 

tracts. 

28.  Description  of  goods. 

29.  Amount. 

80.  Condition. 

81.  Instructions;  Route;    Terminus. 

82.  Stowage. 

83.  Time. 


III.    ACTIONS  AGAINST  COMMON  CARRIERS  OF 

GOODS — continued. 

84.  Burden  of  proof  as  to  loss  and 

cause  of  loss. 

85.  Contract  of  connecting  lines. 
36.  Non-delivery. 

87.  Negligence. 

38.  Cause  of  injury. 

89.  Theft  or  robbery. 

40.  Conversion. 

41.  Plaintiff's  title. 

42.  Oral  evidence  to  explain  or  vary 

bill  or  receipt. 

43.  Usage. 

44.  Declarations  of  agents. 

45.  Defenses  ;  Generally. 

46.  Contract  for  restricted  liability. 

47.  Evidence    of    shipper's    assent; 

The  New  York  rule. 

48.  —  the  Illinois  rule. 

49.  Fraud  as  to  value. 

60.  Limited  liability  under  the  act  of 

Congress. 

61.  Carriers'  delivery ;  Notice  to  con- 

signees. 

52.  Act  of  God ;  Inevitable  accident. 

FV.  ACTIONS  AGAINST  COMMON  CARRIERS  or 

PASSENGERS    AND  BAGGAGE. 

53.  Plaintiff  a  passenger. 

54.  Express  contract;  Tickets. 

55.  Authority  of  agency. 

56.  Baggage. 

67.  — loss  or  non-delivery. 

58.  "Negligence. 

69.  Authority  of  servant. 

60.  Damages. 

61.  Defenses  : — Restriction  of  liabil- 

ity;   Extrinsic    evidence    to 
vary  ticket. 

62.  Contributory  negligence. 


I.  GENERAL  PRINCIPLES. 

1.  Grounds  of  action.] — The  pleadings  and  evidence  involve 
one  or  more  of  three  elements :  1.  Breach  of  express  contract. 
2.  Breach  of  implied  duty.  3.  Conversion. 

If  the  action  is  founded  on  express  contract  to  deliver,  evi- 
dence of  breach  is  prima  facie  enough  (though  excuse  may  be 
shown  by  the  bailee) ;  and  evidence  of  actual  negligence,  or  of 

L552J 


GENERAL  PRINCIPLES.  553 

conversion,  is  competent,  so  far  as  involved  in  proving  the  actual 
breach  of  contract. 

If  the  action  is  founded  on  breach  of  implied  duty,  the  degree 
required  of  proof  of  negligence  or  other  cause  of  loss  varies  with 
the  nature  of  the  bailment  and  the  degree  of  diligence  required. 
In  this  class  of  cases  the  contract,  if  any,  must  be  proved  in  order 
to  define  the  duty ;  and  evidence  of  conversion  is  competent  for 
the  same  purpose  as  in  cases  of  express  contract. 

If  the  action  is  founded  on  conversion,  the  contract  must  be 
proved,  if  necessary  to  define  the  duty,  otherwise  it  is  not  essen- 
tial ;  but  the  action  is  not-  sustained  by  proof  of  mere  breach  of 
contract  or  implied  duty>  or  of  negligence.1 

An  uncertainty  on  the  face  of  the  complaint  as  to  which  of 
these  is  the  gist  of  the  action,  is  to  be  determined  by  the  court 
with  reference  to  the  rules  affecting  variance.2 

2.  Contract  of  laitment.~] — If  the  action  is  for  a  wrongful  use 
contrary  to  express  contract,  proof  of  the  contract  is  necessary.8 
A  written  contract  may  be  proved,  under  a  general  allegation  not 
indicating  writing.4     Evidence  of  the  bailee's  uniform  usage  to 
give  a  written  receipt  expressing  terms  of  bailment,   may    be 
sufficient  to  require  foundation  to  be  laid  before  admitting  oral 
evidence  of  terms.5     A  mere  receipt  not  expressing  terms,  is  not 
the  exclusive  primary  evidence  of  the  delivery. 

3.  Oral  evidence  to  vary  writing.'] — The  general  rule  already 
stated,6  protects  written  instructions,7  and  words  of  contract  con- 
tained in  a  receipt,8  if  binding  as  a  contract.     A  stipulation  to  re- 
turn cannot  be  varied  by  oral  evidence  of  contemporaneous  agree- 
ment as  to  risk ; 9  but  a  mere  memorandum  of  length  of  time  and 
rate  of  payment,  does  not  exclude  a  separate  oral  agreement  as  to 
risk ; 10  nor  does  a  written  power  exclude  evidence  of  a  separate 
and  not  inconsistent u  agreement  as  to  the  conditions,  in  respect 
to  time,  price,  &c.,  on  which  it  might  be  executed.13  A  receipt  ex- 
pressed to  be  for  storage,  cannot  be  shown  by  parol  to  represent 
a  sale.13     A  mere  receipt  without  indicating  the  nature  of  the 

1  These  principles  I  deem  sufficiently  settled  under  the  new  procedure  ;  although 
not  hitherto  universally  recognised.  The  modes  of  proving  negligence  and  con- 
version respectively,  are  stated  in  other  chapters. 

8  See  pp.  273,  285  of  this  vol.  and  the  chapter  on  actions  for  DECEIT. 

3  Smith  v.  Rollins,  1 1  R.  I.  464,  s.  o.  23  Am.  R.  609. 

*  Fiedler  v.  Smith,  6  Cush.  (Mass.)  336,  340. 

5  Ashe  v.  DeRosset,  8  Jones  (N.  Car.)  L.  240. 

6  Pages  294,  364,  of  this  vol. 

*  Richardson  v.  Churchill,  6  Cush.  426 ;  Dunlop  v.  Monroe,  7  Cranch,  242. 

8  Stapleton  v.  King,  33  Iowa,  28,  s.  c.  11  Am.  R.  109,  and  cases  cited;    Wood  v. 
"Whiting,  21  Barb.  190. 

9  Brown  v.  Hitchcock,  28  Yt.  452. 

10  Jeffrey  v.  Walton,  1  Stark  R.  267. 

11  Dykers  v.  Allen,  7  Hill,  497,  affi'g,  3  Id.  593;  Vail  v.  Rice,  8  N.  Y.  155;  Mark- 
ham  v.  Joudon,  41  N.  Y.  23-1,  rev'g,  49  Barb.  462,  s.  o.  3  Abb.  Pr.  N.  S.  286. 

19  Clarke  v.  Meigs,  10  Bosw.  337. 
13  Wadsworth  v.  Allcott,  6  N.  Y.  64. 


554  ACTIONS  AGAINST  BAILEES,  Ac. 

transaction  may  be  explained  or  contradicted.1  A  warehouse  re- 
ceipt is  usually  subject  to  oral  explanation  unless  plaintiff  has 
made  advances  or  incurred  responsibility  on  the  faith  of  it.2  If 
the  terms  of  the  receipt  are  ambiguous,3 — as  for  instance  "re- 
ceived on  account  of  A.  [the  plaintiff],  for  B."— evidence  of  usage 
is  admissible  to  explain.4 

4.  Plaintiff*  s  title'  Bailees  estoppel^ — The  plaintiff's  title  is 
sufficiently  proved  by  the  contract.     A  bailee,  or  agent,  cannot 
dispute  the  original  title  of  the  bailor  or  principal  from  whom  he 
received  the  thing  ; 5  even  by  purchasing  an  adverse  title.6    But 
he  may  show  that  his  bailor  parted  with  his  interest  in  the  prop- 
erty subsequent  to  the  bailment.7 

5.  Eviction.] — Eviction  by  title  paramount  or  its  equivalent, 
suffices  to  terminate  the  relation  of  bailee  which  raises  this  estop- 
pel ;  but  notice  of  adverse  claim  does  not.8    Even  where  the  action 
is  on  a  contract,9  the  better  opinion  is  that  the  bailee  is  excused  by 
showing  that  without  his  fault,  act  or  connivance,  the  thing  was 
seized  and  taken  from  his  possession,  by  virtue  of  regular  and  valid 
legal  process,10  out  of  a  court  having  jurisdiction,11  either  against 
the  bailor,12  or  a  third  person,13  and  that  he  gave  immediate  notice 
to  the  bailor.14    In  such  case  he  is  not  bound  to  show  the  merits 
of  the  claim,  or  correctness  of  the  decision  on  which  the  process 
was  founded,15  but  only  its  regularity  and  validity.     The  process 
itself  is  the  primary  evidence,  and  the  oral  admission  of  the 
plaintiff  is  not  a  substitute  for  it.16 


1  Robinson  v.  Frost,  14  Barb.  536. 

*  Second  Bank  of  Toledo  v.  Walbridge,  19  Ohio  St.  419;   Bebee  v.  Moore,  3 
McLean,  387.     Compare  Peck  v.  Armstrong,  38  Barb.  215;  Hoyt  v.  Baker,  15  Abb. 
Pr.  N.  S.  405;  McCombie  v.  Spader,  1  Hun,  193. 

3  Agawam  Bank  v.  Strever,  18  N.  Y.  502;   Harris  v.  Rathbun,  2  Abb.  Ct.  App. 
Dec.  326. 

4  Bowman  v.  Horsey,  2  M.  <fc  Rob.  85. 

B  Vosburgh  v.  Huntington,  15  Abb.  Pr.  254;  Marvin  v.  Elwood,  11  Paige,  365 
or  whose  title  he  has  recognized  by  issuing  a  receipt,  Gosling  v.  Birnie,  7  Bing.  339 
and  see  p.  528  of  this  vol.  The  contrary  said  of  a  pledge,  in  Cheesmau  v.  Exall,  6 
Exch.  341. 

6  Nudd  v.  Montanye,  38  Wis.  511,  s.  c.  20  Am.  R.  25.     And  this  estoppel  enures 
in  favor  of  the  bailor's  assignee,  <fec.     Marvin  v.  Smith,  56  Barb.  600;  Dixon  v.  Ham- 
mond, 2  Barnw.  <fe  A.  310. 

7  See  Marvin  v.  Ellwood,  11  Paige,  365;  Bates  v.  Stanton,  1  Duer,  79,  s.  c.  10  N. 
Y.  Leg.  Obs.  216. 

*  Biddle  v.  Bond,  6  Best.  &  S.  225 ;  and  see  Lund  v.  Seamen's  Bank  for  Savings, 
37  Barb.  129. 

9  As  distinguished  from  conversion.  Edwards  v.  White  Line  Co.  104  Mass.  159, 
s.  c.  6  Am.  R.  213. 

10  Ohio  &  Miss.  Rw.  Co.  v.  Yoke,  51  Ind.  181,  s.  c.  19  Am.  R.  727,  and  cases  cited; 
4  Southern  Law  Rev.  N.  S.  465. 

11  Barnard  v.  Kobbe,  54  N.  Y.  516. 

»  Edson  v.  Weston,  7  Cow.  278  ;  Stamford  Steamb.  Co.  v.  Gibbons,  9  Wend.  327. 

13  Cook  v.  Holt,  48  N.  Y.  275 ;  4  South.  Law  Rev.  N.  S.  465. 

14  Ohio  &  Miss.  I'w.  Co.  v.  Yoke  (above);  Cook  v.  Holt  (above). 

15  Contra,  Mierson  v.  Hope,  2  Sweeny,  561. 

14  Jenner  v.  JolifFe,  6  Johns.  9.  For  the  mode  of  proof,  see  Chapter  XXTX.  Fur. 
ther  proof  of  any  proceedings  upon  it  is  not  necessary.  Hirschieldt  v.  Fanton, 
Anth.  N.  P.  S61. 


GENERAL  PRINCIPLES.  555 

If  the  bailee  voluntarily  surrenders,  or  fails  to  give  such  no- 
tice, he  assumes  the  burden  of  showing  that  he  was  evicted  by 
legal  title  paramount  to  that  of  the  bailor.1  If  he  shows  actual 
delivery  on  the  demand  of  the  true  owner,  and  that  the  latter 
had  a  right  to  the  immediate  possession,  paramount  to  that  of 
the  bailor,  neither  legal  proceedings  nor  proof  of  fraud  are  nec- 
essary.2 

An  allegation  of  conversion  is  not  sustained  by  evidence  that 
without  the  bailee's  act,  fault  or  connivance,  the  thing  was  taken 
from  his  possession  by  virtue  of  regular  and  valid  legal  process ; 
but  it  is  sustained  by  evidence  that  while  retaining  possession  he 
refused  proper  demand,  on  the  pretext  that  it  was  bound  in  his 
hands  by  process  against  a  third  person.3 

6.  Burden  of  proof  as  to  "breach  of  duty.~] — If  the  action  is 
founded  solely  on  an  express  contract  to  return,  the  plaintiff 
must  prove  the  contract  and  the  breach  or  failure  to  redeliver, 
and  this  is  enough  ; 4  the  burden  then  rests  on  defendant  to  show 
due  diligence  or  a  loss  for  which  he  is  not  liable.5  If  the  action 
is  founded  on  negligence  or  other  tort,  plaintiff,  in  addition  to 
the  duty,  must  prove  the  tort.  Slight  proof,  however,  is  sufficient 
to  sustain  an  inference  of  negligence.6  Whether  evidence  of  the 
loss  or  the  non-delivery  of  the  thing  throws  on  a  bailee  the  burden 
of  proving  diligence  depends  on  the  degree  of  his  duty.7  In 
case  of  bailees  for  hire  generally,  such  as  common  carriers,  for- 
warders,8 warehousemen9  (including  carriers  holding  possession  as 
warehousemen10),  collecting  bankers,11  and  innkeepers,  non-deliv- 
ery12 without  anything  to  indicate  a  cause  of  loss  or  injury  consist- 
ent with  due  diligence,  or  return  of  the  thing  if  in  a  damaged  state 
without  explanation,13  is  sufficient  to  go  to  the  jury  as  evidence  of 


1  "Welles  v.  Thornton,  45  Barb.  390. 

9  The  Idaho,  93  U.  S.  (3  Otto),  575,  579;  11  Blatchf.  218.  Cases  to  the  contrary 
may  be  found  in  the  books.  Sen  Barnard  v.  Kobbe,  3  Daly,  35,  affi'd  on  other 
grounds  in  64  N.  T.  516 ;  Mierson  v.  Hope,  2  Sweeny,  661. 

8  Rogers  v.  Weir,  34  N.  Y.  463. 

4  Merchants'  Bank  of  Mncon  v.  Rawls,  7  Cfeo.  191. 

8  Edw.  Bailm.  §  62 ;  \Vhart.  on  Neg.  §  422. 

8  W barton  on  Neg.  §  422. 

7  Story  on  Bailm.  §§  213,  278,  410.     The  circumstances  that  the  facts  were  pecu- 
liarly within  defendant's  knowledge,  and  that  such  an  injury  does  not  usually  occur 
without  negligence,  may  be  controlling.     Collins  v.  Bennett,  46  N.  Y.  49'). 

8  Especially  if  there  is  a  total  failure  to  account  for  the  property.     Bush  v.  Miller, 
13  Barb.  481. 

•  Schwerin  v.  McKie,  5  Robt.  404  ;  Arent  v.  Squire,  1  Daly,  847 ;  Claflin  v.  Meyer, 
43  Super.  Ct.  (J.  <fc  S.)  7,  and  cases  cited.  Otherwise,  if  the  compensation  is  only  for 
place-room,  not  a  reward  for  cnre  and  diligence  (see  Schmidt  v.  Blood,  9  Wend.  271); 
us  in  the  case  of  a  mere  wharfinger  (Fooie  v.  Storrs,  2  Barb.  23o ;  and  sea  Searle  v. 
Laverick,  L.  R.  9  Q.  B.  122).  As  to  Safe  Deposit  Company,  sea  17  Alb.  L.  J.  198. 

10  Fairfax  v.  N.  Y.  Central  R.  R.  Co.  67  N.  Y.  11 ;  Cass  v.  Boston,  <fec.  R.  R.  Co.  14 
Allen,  4 18.      Ci.mtni,  Jackson  v.  Sacrament  >,  <fec.  R.  R.  Co.  23  Cal.  26S. 

11  Chicopee  Bank  v.  Philadelphia  Bank,  8  Wall.  641. 

19  Especially  if  without  explanation.  Boies  v.  Ilurtford  <fe  New  Haven  R.  R.  Co. 
S7  Conn.  272,  8.  c.  9  Am.  R.  847. 

13  Funlihouser  v.  Wagner,  62  111.  59  ;  Logan  v.  Mathews,  6  Penn.  St.  417  ;  Whart. 
on  Neg.  §  422. 


556  ACTIONS  AGAINST  BAILEES,  Ac. 

negligence.1  Evidence  that  the  thing  had  disappeared  from  the 
possession  of  the  bailee,  without  anything  to  indicate  how,  is 
sufficient.2  As  a  general  rule,  plaintiff  need  not,  in  the  first  in- 
stance, prove  that  the  thing  was  free  from  latent  defects  when 
delivered  to  the  bailee.8 

If  plaintiifs  evidence  goes  further,  and  traces  loss  or  injury 
to  a  cause  consistent  with  due  diligence  on  defendant's  part, — 
such  as  fire,4 — or  if  defendant  shows  such  a  cajise,  plaintiff  must 
give  evidence  of  negligence,  unless  he  stands  upon  a  contract 
which  holds  defendant  without  that.5  Where  the  duty  is  ordinary 
care,  the  happening  of  an  accident  of  a  kind  which  ordinary  care 
does  not  suffice  to  prevent  is  no  evidence  of  negligence,  even 
though  the  apparatus  was  within  defendant's  control. 

The  presumption  that  legal  duty  has  been  discharged  does 
not  countervail  evidence  of  injury  or  diminution  of  the  thing  in- 
trusted to  a  bailee  for  hire.7 

Fire,  without  evidence  of  its  cause,  is  presumed  not  "  the  act 
of  God  " ; 8  but  is  not  presumed  to  be  caused  by  defendant's  neg- 
ligence.9 Theft  and  robbery,  in  the  absence  of  further  evidence, 
are  not  prima  facie  proof  of  negligence.10  But  the  bailee's  con- 
duct in  the  hue  and  cry,11  and  his  failure  to  give  prompt  notice,  is 
competent.12  The  testimony  of  the  servant  in  charge  of  the  de- 
posit, that  he  never  delivered  it  to  any  one,  is  not  sufficient  evi- 
dence of  theft.13 

Evidence  of  independent  acts  of  negligence  not  connected 
with  the  loss  is  incompetent,14  except  as  tending  to  show  the  man- 
ner in  which  the  business  of  the  bailee  was  conducted  at  the  time.15 

7.  Qualified  refusalJ] — The  statements  of  the  defendant, 
made  at  the  time  of  the  demand,  and  excusing  and  qualifying  his 


1  The  language  of  many  authorities  to  the  effect  that  it  throws  on  the  bailee  the 
burden  of  proving  due  care  is  liable  to  mislead.     Plaintiff  will  be  entitled  to  go  to 
the  jury  on  such  evidence,  if  defendant  does  not  give  evidence  of  the  cause  of  loss 
(cases  above  cited) ;  but  is  not  entitled  to  a  ruling,  or  an  instruction  to  the  jury  that 
this  evidence  shifts  the  burden  of  proof  respecting  negligence.     If  the  complaint  is 
founded  on  tort,  however,  plaintiff  must  give  some  evidence  of  the  tort.     Lamb  v. 
Camden  &  Amboy.&c.  K.  R.  Co.  49  N.  Y.  271,  rev'g  2  Daly,  454. 

2  Fairfax  v.  N"  Y.  Central,  <fec.  R.  R.  Co.  67  N.  Y.  11,  rev'g  40  Super.  Ct.  (J.  &  S.) 
128,  s.  c.  again  43  Super.  Ct.  (J.  «fe  fc.)  18,  affi'd  in  73  N.  Y.  167. 

3  1  Whart.  Ev.  326,  §  362. 

4  Lamb  v.  Camden  &  Amboy  R.  R.  Co.  46  N.  Y.  271,  rev'g  2  Daly,  454. 

6  Casa  v.  Boston  &  Lowell  R.  R.  Co.  14  Allen,  448. 

•  See  French  v.  Buffalo,  <fec.  R.  R.  Co.  2  Abb.  Ct.  App.  Dec.  196. 

7  Arent  v.  Squire,  1  Daly,  347. 

8  Miller  v.  bteam  Nav.  Oo.  10  N.  Y.  431. 

9  Lamb  v.  Camden  &  Amb.  Transp.  Co.  4  N.  Y.  271,  rev'g  2  Daly,  454 ;  Edw.  on 
B.  §  236. 

10  Story  on  B.  §  39 ;  and  see  L.  R.  9  Exch.  93,  s.  c.  8  Moak's  Eng.  535  ;  L.  R.  9  Q. 
B.  468,  8.  c.  10  Moak's  Eng.  118. 

11  Tompkins  v.  Saltmar.sh,  14  Serg.  <fe  R.  275. 

1S  First  National  Bank  of  Carlisle  v.  Graham,  79  Fenn.  St.  106,  s.  c.  21  Am.  R.  49. 

13  Fairfax  v.  N.  Y.  Central,  &c.  R.  R.  Co.  67  N.  Y.  11,  rev'g  40  Super.  Ct.  (J.  &  S.) 
128. 

14  First  Nat.  Bank  of  Lyons  v.  Ocean  Nat.  Bank,  60  N.  Y.  279. 

15  Dearboru  v.  The  Union  Nat.  Bk.  61  Me.  369 ;  and  see  chapter  on  NEGLIGENCE. 


SPECIAL  CLASSES  OF  BAILEES,  &o.  557 

refusal  to  surrender,  thus  constituting  a  part  of  the  refusal,  may 
be  proved  in  his  favor  as  part  of  the  res  geatas^  but  this  does  not 
justify  the  admission  of  statements  of  independent  facts.3 

8.  Value  and  damafje.~\ — The  mode  of  proving  value  and 
damage  are  the  same  as  in  an  action  on  quantum  meruit  for  the 
price  of  goods  sold,  or  the  breach  of  a  warranty.3 

II.  SPECIAL  CLASSES  OF  BAILEES  AND  AGENTS. 

.  9.  Gratuitous  bailments.'] — A  delivery  to  and  acceptance  by 
a  gratuitous  bailee4  cannot  be  presumed  merely  from  evidence  of 
the  ordinary  course  of  business.  Plaintiff  must  prove  a  deposit 
of  the  goods  with  defendant,  and  that  he  did  not  restore  them, 
and  that  the  non-restoration  was  produced  by  a  lack  of  due  dili- 
gence on  his  part.  This  lack  of  diligence  often  may  be  inferred 
from  the  nature  of  the  transaction,5  but  the  plaintiff's  case  must 
be  sufficient  to  raise  some  presumption  of  defendant's  fault.  De- 
fendant may  then  show  that  he  was  not  guilty  of  gross  negli- 
gence.6 

The  bailee's  declarations  at  and  immediately  after  the  loss  are 
competent  in  his  favor,  as  part  of  the  res  gentm?  A  presumption 
of  gross  negligence  is  usually  repelled  by  evidence  that  the  bailee 
took  the  same  care  as  of  things  of  his  own  ; 8  but  recklessness  in 
care  of  his  own  does  not  excuse.9  The  fact  that  he  was  known  to 
bailor  to  be  a  person  of  incapacity  is  relevant.10 

10.  Attorneys^ — A  general  receipt,  given  by  an  attorney,  for 
an  evidence  of  debt  already  due,  raises  a  presumption,  not  con- 
clusive, that  he  received  it  in  his  capacity  of  attorney,  for  the 
purpose  of  collection  ; u  and  a  receipt  for  collection  imports  an 
undertaking  himself  to  collect,  not  merely  that  he  received  it  for 
transmission  to  another  for  collection,  for  whose  negligence  he  is 
not  to  be  responsible.13  In  an  action  against  an  attorney,  whether 
for  breach  of  contract,  or  of  legal  duty,  the  burden  is  upon  the 
plaintiff  to  prove  the  breach,  and  the  damages  sustained.13  Igno- 
rance of  a  recent  statute  u  or  decision 13  changing  the  law  is  some 


1  Grade  T.  Robinson,  14  Ark.  438 ;  Bennett  v.  Burch,  1  Den.  141 ;  compare  Mahone 
v.  Reeves,  11  Ala.  346,  351. 

8  Walrod  V.  Ball,  9  Barb.  271. 

8  Pages  306-312,  848  of  this  vol. 

4  Samuels  v.  McDonald,  11  Abb.  Pr.  N.  S.  S44,  s.  o.  42  How.  Pr.  SCO. 

e  Doorman  v.  Jenkins,  2  Adolph.  die  Ell.  256. 

6  Wharton  on  Neg.  §§  430, 477,  citing  Perry  v.  Roberts,  3  Ad.  &  El.  1 1 S ;  Garside 
v.  Proprietor,  4  T.  R.  581,  and  other  cases. 

7  McNabb  v.  Lockhart,  18  Geo.  496,  508 ;  Lampley  v.  Scott,  24  Miss.  628. 

8  Story  on  B.  §§  63,  79;  and  see  79  Penn.  St.  106,  s.  c.  21  Am.  R.  49,  53. 

9  Whart  on  Neg.  §  4G2. 

10  Story  on  B.  §  66. 

11  Executors  of  Smedes  v.  Elmendorf,  3  Johns.  185. 

11  Bradatreet  v.  Everson,  72  Penn.  St.  124,  B.C.  13  Am.  R.  665. 

13  Quinn  v.  Van  Pelt.  66  N.  Y.  417,  rev'g  8C  N.  Y.  Super.  Ct.  ( I  J.  <k  S.)  279. 

14  A.  B.'s  Estate,  1  Tuck.  247. 

15  Leo  v.  Walker,  L.  R.  7  C.  P.  121,  s.  c.  1  Moak's  Eng.  371. 


558  ACTIONS  AGAINST  BAILEES,  «feo. 

evidence  of  negligence.  To  prove  a  defect  in  his  proceedings  of 
record,  the  record  is  the  appropriate  evidence.1  When  negligence 
has  been  proved,  in  consequence  of  which  judgment  has  gone 
against  the  client,  it  is  not  incumbent  on  the  client  to  show  that 
but  for  the  negligence  he  would  have  succeeded  in  the  action. 
Illegality  in  the  transaction  whence  the  money  claimed  was  col 
lected  is  not  available  to  the  attorney.3 

11.  Brokers!} — One  employed  to  buy  stock,  he  to  make  ad- 
vances therefor,  has,  in  the  absence  of  contrary  arrangement,  im- 
plied authority  to  take  title  in  his  own  name.4    A  customer  is 
presumed,  but  not  conclusively,  to  have  known  the  usages  of 
brokers   generally.5      Evidence  of   a  conversion  by  brokers,  of 
stock  actually  purchased,  is  not  admissible  under  an  allegation  of 
fraud  in  falsely  pretending  to  have  purchased.6    Where  the  evi- 
dence shows  that  the  broker  was  a  pledgee  as  to  the  stock,  evi- 
dence of  a  usage  to  sell  without  notice,  contrary  to  a  pledgee's 
duty,  is  not  competent.7   Otherwise  if  the  relation  of  pledger  and 
pledgee  is  not  established.8 

12.  Collecting  Bankers."] — The  receiving  of  negotiable  paper 
for  collection  implies  an  agreement  on  the  part  of  the  bankers 
with  the  one  from  whom  they  receive  it,9  to  present,  &c.,  and  to 
cause  the  drawers,  indorsers,  &c.,  to  be  charged ; 10  and  negligence 
of  their  notary,11  or  their  correspondent,12  is  competent  against 
them.     This  liability  may  be  varied  by  evidence  of  express  con- 
tract or  general  usage,  but  not  by  the  practice  of  single  banks 
adopted  for  their  own  convenience.13 

An  accidental  loss  or  disappearance,  in  a  bank,  of  a  bill  sent 
to  it  for  collection,  resulting  from  the  bank  not  taking  sufficient 
care  of  letters  brought  to  it  from  the  mail,  raises  a  presumption 
of  negligence.14  To  recover  more  than  nominal  damages  for  fail- 
ure to  give  due  notice  of  non-payment,  there  must  be  evidence 


1  Reilly  v.  Cavanaugh,  29  Ind.  435. 

s  Rose.  N.  P.  484 ;  Wharton.on  Neg.  §  752,  citing  Purvis  v.  Landell,  12  Cl.  &  Fin. 
91;  Godefroy  v.  Jay,  7  Bing.  413.     See  contra,  Barter  v.  Morris,  18  Ohio  St.  491. 

3  Fogerty  v.  Jordan,  2  Robt.  319  ;  Merritt  v.  Millard,  2  Abb.  Ct.  App.  Dee.  391 ; 
and  eee  chapter  on  actions  for  MONEY  RECEIVED. 

4  Horton  v.  Morgan,  19  N.  Y.  170.     Compare  Merwin  v.  Hamilton,  6  Duer,  244. 
As  to  grounds  of  action,  whether  on  contract  or  for  conversion,  see  Read  v.  Lambert, 
10  Abb.  Pr.  N.  S.  428 ;  Stewart  v.  Drake,  46  N.  Y.  449. 

8  Whitehouse  v.  Moore,  13  Abb.  Pr.  142.     SPO  p.  296  of  this  vol. 

6  Salters  v.  Genin,  7  Abb.  Pr.  193,  s.  c.  3  Bosw.  250. 

7  Taylor  v.  Ketchum,  5  Robt.  507,  s.  c.  35  How.  Pr.  289  •  Markham  v.  Jaudon,41 
N.  Y.  235. 

8  Corbett  v.  Underwood,  83  HI.  324. 

9  Montgomery  Co.  Bank  v.  Albany  City  Bank,  7  N.  Y.  459. 

10  Ayrault  v.  Pacific  Bank,  6  Robt.  337 ;  47  N.  Y.  570.     But  compare  State  Bank 
of  Troy  v.  Bank  of  the  Capitol,  41  Barb.  343,  s.  c.  17  Abb.  Pr.  364;  27  How.  Pr.  57. 

11  Ayrault  v.  Pacific  Bank,  47  N.  Y.  570,  aflVg  G  Robt.  837. 
11  Montgomery  Bank  v.  Albany  City  Bank  (above). 

13  Ayrnult  v.  Pacific  Bank  (above). 

14  Chicopee  Bank  v.  Philadelphia  Bank,  8  Wall  641. 


FACTORS.  559 

that  if  due  notice  had  been  given,  plaintiff  might  have  collected 
the  amount,  or  some  part  of  it.1  Execution  against  the  maker 
unsatisfied  is  competent  to  show  his  insolvency/ 

13.  factors.'] — Plaintiffs  letters  to  defendant,  written  with 
the  goods  consigned,  are  competent  in  his  favor  to  show  his  in- 
structions ;3  and  the  instructions  are  strictly  binding,  if  the  con- 
signment is  accepted.4  If  a  voluminous  correspondence  is  offered, 
the  party  offering  it  should  point  out  the  parts  he  relies  on  as, 
relevant.5*  If  the  written  instructions  refer  the  factor  also  to 
a  third  person  for  verbal  instructions,  the  latter  may  be  compe- 
tent, although  they  vary  the  former.6  Evidence  of  a  general  con- 
signment without  specific  instructions  as  to  sale,  and  of  advances 
made  or  liabilities  incurred  on  the  faith  of  the  goods,  raises  a 
legal  presumption  that  the  factor  has  a  discretion  about  selling, 
for  his  own  protection,  which  the  principal  cannot  control  by 
subsequent  instructions.7  The  letters  and  declarations  of  the  de- 
fendant's agent,  to  him,  are  not  alone  competent  to  prove  his 
diligence.8  The  factor's  agreement  may  be  interpreted  by  oral 
evidence  of  usage,9  under  principles  already  stated.10 

Sale  by  a  factor  is  presumed  from  lapse  of  time ; u  and  a  refusal 
to  account  raises  a  presumption  in  favor  of  the  strongest  con- 
struction of  the  evidence  against  him  as  to  amount,  value,  and 
price.12  The  presumption  that  an  invoice  is  sent,  upon  a  consign- 
ment of  merchandise,  suffices  to  require  a  foundation  for  second- 
ary evidence  of  contents.13  To  show  intent  to  defraud,  similar 
fraudulent  acts  of  defendant,  committed  at  or  about  the  same 
time  may  be  shown.14  If  conspiracy  is  alleged,  plaintiff  may  re- 
cover against  one,  on  proof  of  fraud,  but  not  without.15  The 
mode  of  proving  value  has  already  been  stated.18 


1  Lienan  v.  Dinsmore,  10  Abb.  Pr.  N.  S.  209,  s.  c.  3  Daly,  865 ;  Coghlan  v.  Dins- 
more,  9  Bosw.  453.     But  compare  Allen  v.  Suydam,  20  Wend.  321,  rev'g  17  Id.  368; 
Waldrod  v.  Ball,  9  Barb.  271. 

2  Eichelberger  v.  Pike,  22  La.  Ann.  142. 

3  Porter  v.  Ferguson,  4  Fla.  102. 

4  Scott  v.  Rogers,  4  Abb.  Ct.  App.  Dec.  157 ;    Loraine  v.  Cartwright,  3  Wash.  C. 
Ct.  151 ;  Bell  v.  Cunningham,  3  Pet.  69,  85.     Otherwise  of  instructions  on  a  separate 
and  subsequent  consignment.     Milbank  v.  Dennistown,  10  Bosw.  382. 

4  Daineae  v.  Allen,  14  Abb.  Pr.  N.  S.  363. 

'  Manella  v.  Bary,  3  Cranch,  415. 

*  Feild  v.  Farrington,  10  Wall.  148. 

8  Framin2;hnm  v.  Barnard,  2  Pick.  532. 

8  Beardsley  v.  Davis,  52  Barb.  159  ;  Farmers,  Ac.  Bank  v.  Spragne,  62  N.Y.  605. 

10  Pages  296,  485  of  this  vol.    Compare  Catlin  v.  Smith,  24  Vt  85;  Dwight  v. 
Whitney,  15  Pick.  179. 

11  Me  Arthur  v.  Wilder,  3  Barb.  66. 

18  Pope  v.  Barret,  1  Mas.  117 ;  Field  v.  Moulson,  2  Wash.  C.  Ct.  155. 

13  Turner  v.  Yates,  16  How.  U.  S.  14,  26. 

14  Cattle  v.  Bullard,  23  How.  U.  S.  172;  and  see  Chnpter  on  DECEIT. 

14  Price  v.  Keves,  62  N.  Y.  378,  rev'g  1  Hun,  117,  s.  c.  3  Supm.  Ct.  (T.  A  C.),  720. 

16  Page  307  of  this  vol.  As  to  the  time  to  which  the  evidence  should  reft-r,  see 
Scott  v.  Rogers,  4  Abb.  Ct.  App.  Dec.  157 ;  Blot  v.  Boiceau,  8  N.  Y.  78,  rev'g  1 
Sandf.  111. 


560  ACTIONS  AGAINST  BAILEES,  Ao. 

Ratification  is  presumed  from  evidence  that  plaintiff,  after 
full  information,  made  no  objection  within  a  reasonable  time.1 
Intentional  omission  to  reply  raises  a  presumption  of  approval  of 
a  past  course,  even  though  contrary  to  instructions.3 

To  establish  a  lien,  defendant  must  show ;  either,  1,  that  he 
had  made  advances  specially  upon  the  credit  of  this  shipment ; 
or,  2,  that  he  was  entitled,  by  arrangement  with  the  consignor,  to 
a  lien  for  any  balance  of  advances  generally.8 

14.  Forwarders, .] — An  allegation  that  defendants  acted  only 
as  carriers,  is  a  variance.4    The  stipulation  to  forward,  in  the  re- 
ceipt, is  a  contract,  subjecting  it  to  the  rule  excluding  oral  evi- 
dence to  vary.5 

It  is  enough  for  defendant  to  satisfy  the  jury,  by  the  best  evi- 
dence in  his  power,  that  he  performed  his  duty  with  care  and 
fidelity,  used  all  reasonable  care  and  diligence  in  selecting  proper 
carriers,  and  that  the  loss  has  not  arisen  from  any  default  of  him- 
self or  his  servants.6 

15.  Hirers  of  chattels.'] — The  fact  that  the  hirer  returned  the 
thing  injured  in  a  manner  or  from  a  cause  ordinarily  liable  to  oc- 
cur in  its  careful  use — such  as  a  horse  returned  to  the  owner 
lame,7  or  galled8 — does  not  raise  a  presumption  of  negligence. 

16.  Innkeepers?'] — The  fact  that  defendant  was  an  innkeeper 
may  be  proved  by  parol,  although  the  law  requires  him  to  have  a 
license.1"    It  is  enough  to  show  that  defendant  habitually  re- 
ceived, as  guests,  all  who  came  to  his  house  (it  is  not  material 
that  they  be  only  travelers),  without  agreement  as  to  the  dura- 
tion of  their  stay,  or  terms  of  their  entertainment.11    Evidence  of 
slight  entertainment  is  enough  to  show  that  plaintiff  was  a  guest.12 
Authority  in  a  servant  to  receive  money  or  other  property  on 
the  credit  of  the  house,  may  be  inferred  from  the  capacity  in 
which  he  was  acting.13    Plaintiff  may  prove  the  instructions  he 


1  Cairnes  v.  Bleecker,  12  Johns.  300;  Hazard  v.  Spears,  2  Abb.  Ct.  App.  Dec. 
353. 

8  Feild  v.  Farrington,  10  Wall.  148. 

3  Beebe  v  Mead,  33  N.  Y.  687.  ' 

4  Heirpstead  v.  N.  Y.  Central  R.  R.  Co.  28  Barb.  485. 

6  Niles  v.  Culver,  8  Barb.  205. 

•  Am.  Express  Co.  v.  Second  Nat.  Bank,  69  Penn.  St.  394,  s.  c.  8  Am.  R.  268. 

7  Millon  v.  Salisbury,  13  Johns.  211 ;    Harrington  v.  Snyder,  3  Barb.  380;  s.  p. 
Watson  v.  Bauer,  4  Abb.  Pr.  N.  S.  273. 

8  Newton  v.  Pope,  1  Cow.  109. 

'Cutler  v.  Bonney,  18  Am.  R.   127;   ncte,   130;    3  Abb.  N.  Y.  Dig.  new  ed. 
703,  Ac. 

10  Owings  v.  Wyant,  3  Harr.  <fe  McH.  393. 

11  Wintermute  v.  Clarke,  5  Sandf.  242;    Taylor  v.  Monnot,  4   Duer,  116,  s.  o.  1 
Abb.  Pr.  325.     Although  the  house  was  kept  on  the  "  European  plan."    Krohn  v. 
Sweeny,  2  Daly,  200.     Express  contract  with  plaintiff,  as  to  time  or  terms,  does  not 
necessarily  supersede  the  innkeeper's  liability.    Hancock  v.  Rand,  17  Hun,  279.     As 
to  boarding-house  keepers,  see  17  Alb.  L.  J.  499. 

14  McDonald  v.  Egerton,  5  Barb.  560;  Washburn  v.  Jones,  14  Id.  193. 

13  See  liowaer  v.  Tully,  62  Penn.  St.  92,  a.  o.  1  Am.  R.  390 ,    Svenson  v.  Pacific 


PLEDGEES,  TOWS.  5G1 

gave  affecting  the  duty  of  the  defendant  or  his  servant.1  The 
declarations  of  the  person  discovering  the  loss,  made  at  the  time, 
are  competent  as  part  of  the  res  gestce,2  but  do  not  prove  any  past 
fact  narrated.  Loss  is  presumptive,8  but  not  conclusive  evidence 
of  liability.4 

At  common  law  this  presumption  can  only  be  repelled  by 
proof  that  the  loss  is  attributable  to  negligence  or  fraud  of  the 
guest,  or  to  the  act  of  God  or  the  public  enemy.5  A  general 
denial  of  negligence  will  admit  evidence  of  plaintiffs  negli- 
gence.6 Reasonable  regulations  or  usages  of  the  particular  inn, 
of  which  plaintiff  had  notice,  may  be  proved,  but  not  the  usage 
of  another  inn.7  The  opinions  of  witnesses,  unacquainted  with 
the  facts  of  the  particular  case,  upon  the  propriety  or  safety 
of  carrying  or  keeping,  are  inadmissible.8 

17.  Pledgees.'] — Evidence  that  the  pledgee  wholly  failed  to 
restore  the  goods,  without  indicating  the  cause  of  loss,  is  sufficient 
to  go  to  the  jury  on  the  question  of  negligence,  unless  he  show 
loss  under  such  circumstances  as  will  exculpate  him.9    A  usage 
to  sell,  at  private  sale,  contrary  to  the  legal  duty  of  pledgees,  is 
inadmissible.10 

18.  Tows.] — Tow-boats  are  not  common  carriers.11     The  law 
implies  an  engagement  that  each  party  will  use  proper  skill  and 
diligence;    that  neither  vessel  will  by  neglect  or  misconduct, 
create  unnecessary  risk  to  the  other,  or  increase  any  incidental 
risk  which  may  be  incurred.13    Exemption  from  liability  for  in- 
jury by  causes  over  which  human  agency  has  no  control — such  as 
the  close  of  navigation — is  implied.13    All  the  surrounding  cir- 


Mail  St.  Co.  67  N.  V.  108;  and  see  South  <fe  No.  Ala.  R.  R.  Co.  v.  Henlein,  52  Ala. 
606,  8.  c.  23  Am.  R.  678. 

1  Jones  v.  Hill,  26  Geo.  194. 

8  Pope  v.  Hall,  14  La.  Ann.  324.  As  to  the  competency  of  answers  on  inquiry, 
see  page  44  of  this  TO!.,  and  chap,  on  NEGLIGENCE. 

3  Hulett  v.  Swift,  33  N.  Y.  571,  affi'g  42  Barb.  230;    Rose.  N.  P.  618  ;    Story  on 
Bailm.  §  472 ;  Murray  v.  Clarke,  2  Daly,  102. 

4  Hulett  v.  Swift  (above^. 

s  Hulett  v.  Swift,  33  N.  Y.  571,  affi'g  42  Barb.  230. 

«  Rose.  N.  P.  618. 

1  Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  (Mass.)  417. 

8  Taylor  v.  Monnot,  4  Duer,  116,  s.  c.  1  Abb.  Pr.  325. 

»  Edw.  on  Bailm.  §  236 ;  ('aid well  v.  Nat.  Mohawk  Bank,  64  Barb.  333. 

10  Wheeler  v.  Newbould,  16  N.  Y.  392,  401,  affi'g  5  Duer,  29 ;  approved  in  5  Wall. 
680. 

11  Pike  v.  Nash,  3  Abb.  Ct.  App.  Dec.  610 ;    Arctic  Fire  Ins.  Co.  v.  Austin,  69  N. 
Y.  474,  rev'g,  3  Hun,  193;    Brown  v.  Clegg,  63  Penn.  St.  61,  8.  c.  3  Am.  R.  622; 
Hays  v.  Millar,  77  Penn.  St.  238,  a.  c.  18  Am.  R.  445.     Contra,  21  La,  Ann.  165,  s.  c. 
13  Am.  120. 

18  Smith  v.  St.  Lawrence  Tow-boat  Co.  L.  R.  5  P.  C.  808,  s.  o.  8  Moak's  Eng.  236, 
and  cases  cited;  and  see  Arctic  Fire  Ins.  Co.  v.  Austin,  54  Barb.  559;  Milton  v.  Hud- 
eon  R.  Steamboat  Co.  37  N.  Y.  210;  4  Lans.  76. 

13  Worth  v.  Edmonds,  52  Barb.  40.  The  construction  of  the  contract  is  for  the 
court,  not  the  jury.  Arctic  Fire  Ins.  Co.  v.  Austin,  69  N,  Y.  470,  477,  rev'g  3  Ilun, 
195,  s.  o.  6  Supm.  Ct.  (T.  «fe  C.)  63. 

36 


562  ACTIONS  AGAINST  BAILEES,  <fca 

cumstances  which  may  afford  any  just  ground  of  inference  rela- 
tive to  the  question  in  issue,  may  be  proved ; 1  and  the  condition 
and  character  of  the  vessel  towed,2  and  her  unseaworthiness,8  if 
these  are  relevant  to  the  casualty.  The  burden  is  on  the  owner 
of  the  injured  boat  to  show  that  the  injury  was  caused  by  the 
negligence  of  those  in  charge  of  the  tow-boat.4  To  recover  ex- 
penses consequent  on  being  left  without  any  tow,  plaintiff  must 
prove  an  effort  to  procure  another.5 

19.  Warehousemen.'] — Plaintiff  may  show  by  defendant's  ad- 
vertisements, receipts  and  declarations,  that  the  place  was  to  be 
fire-proof.6    The  general  rules  as  to  estoppel  by  the  receipt  in  re- 
spect to  the  quantity  and  condition  of  the  goods,  are  the  same  as 
in  case  of  carriers.7    Evidence  of  the  degree  of  care  which  other 
persons  engaged  in  a  similar  business  in  the  vicinity  were  in  the 
habit  of  bestowing  on  property  similarly  situated,  is  competent;8 
but  it  should  relate  to  the  calling  generally,  rather  than  to  a  par- 
ticular person  in  it.9     To  charge  warehousekeepers  with  a  loss  by 
negligence  of  their  servants,  negligence  within  the  scope  of  the 
employment  must  be  shown ;  the  test  is  :   are  the  servants  liable 
to  the  employer  ? 10 

Proof  of  the  general  care  with  which  the  warehouse  and  its 
contents  were  guarded  is  not  sufficient  to  raise  a  legal  presump- 
tion of  due  diligence  in  this  particular  instance.11  Defendant  need 
not  show  the  precise  manner  in  which  loss  occurred,  any  farther 
than  to  show  that  it  was  consistent  with  non-liability.13 

20.  Wharfingers:   Place-hire.'] — To  recover  of  a  wharfinger, 
or  one  who  does  not  undertake  actual  custody,  but  only  to  give 
place-room,  plaintiff  must  show  negligence  on  the  part  of  de- 
fendant and  his  servants.     Mere  loss  or  disappearance,  or  injury 
by  accident,  is  not  even  prima  facie  evidence  of  negligence.13 


1  Steam  Navigation  Co.  v.  Dandridge,  8  Gill  &  J.  (Md.)  248,  315. 
s  Baird  v.  Daly,  68  N.  Y.  547,  550. 

3  Id.  551.    For  the  mode  of  proof,  see  page  496,  of  this  vol. 

4  Hays  v.  Millar,  77  Penn.  St.  238,  s.  c.  18  Am.  R.  445;  Pike  v.  Nash,  (above). 
6  Worth  v.  Edmonds,  52  Barb.  40. 

6  Hatchett  v.  Gibson,  13  Ala.  587. 

1  Hale  v.  Milwaukee  Dock  Co.  29  Wis.  482,  s.  r.  9  Am.  R.  603. 

8  Cass  v.  Boston  <fe  Lowell  R.  R.  Co.  14  Allen,  448. 

•  See  First  National  Bank  v.  Graham,  79  Penn.  St.  106,  s.  c.  21  Am.  R.  49,  53. 

10  Aldrich  v.  Boston  &  Worcester  R.  R.  Co.  100  Mass.  31,  s.  c.  1  Am.  R.  76. 

11  Fairfax  v.  N.  Y.  Central,  «fcc.  R.  R.  Co.  67  N.  Y.  11,  rev'g  40  Super.  Ct  (J.  &  S  ) 
128. 

12  Lichtenhein  v.  Boston  <fe  Providence  R.  R.  Co.  11  Cush.  (Mass.)  70. 

13  Cases  in  paragraph  6,  note  9. 


COMMON  CARRIERS  OF  GOODS.  563 


III.  ACTIONS  AGAINST  COMMON  CARRIERS  OF  GOODS. 

21.  Defendant  a  common  carrier^ — If  plaintiff  relies  on  de- 
fendant's common  law  duty,  he  must  show  him  to  have  been  a 
common  carrier.1     This  may  be  done  by  testimony  of   a  wit- 
ness that  defendant  had  habitually  done  business  as  such  for  all 
that  called  on  him;2  or  by  producing  defendant's  advertisements 
or  hand-bills  issued  before  the  transaction  ; 8  or  any  other  admis- 
sions.    Ownership  of  the  vessel  or  vehicle  is  not  necessarily 
enough,  if  defendant  did  not  act  as  carrier  in  taking  the  goods.4 
Under  an   express  contract,  it  is  not  necessary  to  prove  that 
defendant  had  an  interest  in  the  vessels  or  vehicles  employed.5 

If  defendant  was  also  a  warehouseman,  forwarder,  &c.,  plaint- 
iff should  show  that  he  received  the  thing  as  carrier.6  Re- 
ceiving it  marked  to  go  to  an  address  upon  his  route,  is  presump- 
tive evidence  that  he  took  it  as  carrier/  A  receipt  given  by  him 
stating  that  the  thing  was  received  to  be  forwarded  does  not 
exclude  evidence  of  the  agreement  to  transport  under  which  it 
was  given.8 

22.  Delivery  to  carrier^] — Plaintiff  must  show  that  the  prop- 
erty was  actually  delivered  to  defendant  by  being  placed  in  such 
a  position  that  it  might  be  taken  care  01  by  him  or  his  agent 
having  charge  of  the  business,  and  so  as  to  be  under  his  imme- 
diate control.9    Neither  notice  that  the  goods  are  ready,  without 
putting  them  in  his  custody,10  nor  delivery  on  his  premises  with- 
out notice,11  is  enough.    To  prove  delivery  a  witness  may  testify 
that  the   goods  were  delivered  to  the  defendant,  subject   of 
course  to  cross-examination  as  to  details ;  but  where  the  details 
have  been  stated  he  cannot  be  allowed  to  testify  whether  they 
constituted  a  delivery.12    Evidence  of  the  usual  course  of  busi- 
ness, is  competent,  for  the  purpose  of  showing  whether  the  fact 


1  Edw.  §  496. 

9  Ilaslam  v.  Adams  Express  Co.  6  Bosw.  (N.  Y.)  235. 
8  Farmers  <fe  M.  B'k  v.  Champlain  Transportation  Co.  23  Vt.  186. 
4  Fish  v.Clark,  49  N.  Y.  122, 'offi'g  2  Laus.   176.     Compare  Moss  v.  Bettis,  4 
Heisk.  (Tenn.)  661,  s.  o.  13  Am.  R.  1. 

6  Van  Buskirk  v.  Roberts,  31  N.  Y.  661. 

6  Stout  v.  Coffin,  28  Cal.  65.    For  the  conflict  of  opinion  as  to  the  burden  of 
proof  and  presumptions  in  case  of  carriage  of  animals, — see  Crajrin  v.  N.  Y.  Cen- 
tral, <fec.  51   N.  Y.  61,  49  N.  Y.  204;    Steiger  v.  Erie  Rw.  Co.  5  Hun,  345;  Kansas 
Pacific  Railw.  Co.  v.  Nichols,  9  Kan.  235,  8.  c.  12  Am.  R.  494 ;  Lake  Shore  <fe  Mich- 
igan Southern  R.  R.  Co.  v.  Perkins,  25  Mich.  329,  s.  c.  12  Am.  R.  275;    Kendall  v. 
London  <fc  South-western  Rw.  Co.  L.  R.  7  Ex.  373;  and  see  13  Am.  R.  42,  53,  note, 
and  cases  cited;  4  South.  L.  R.  N.  S.  664. 

7  Laduo  v.  Griffith,  25  N.  Y.  364;    and  seo  ./Etna  Ins.  Co.  v.  Wheeler,  49  N.  Y. 
616,  621;  affi'g  5  Lnns.  480. 

8  Blossom  v.  Griffin,  13  N.  Y.  C69 ;  and  fee  Pcovill  v.  Griffith,  12  N.  Y.  509. 

•  Grosvenor  v.  N.  Y.  Central  R.  R.  Co.  39  N.  Y.  S4,  s.  c.  6  Abb.  Pr.  N.  S.  345. 

10  Id. 

11  Spade  v.  Hudson  River  R.  R.  Co.  16  Barb.  383;  Rose.  N.  P.  609. 
IJ  Bowrio  v.  Baltimore,  <fec.  R.  R.  Co.  1  McArthur,  609. 


564  ACTIONS  AGAINST  BAILEES,  Ac. 

constituted  a  delivery.1  Evidence  of  admission  of  the  fact  of 
the  loss  of  the  goods  is  competent  on  the  question  of  delivery.2 
Delivery  may  also  be  shown  by  the  bill  of  lading8  or  receipt 
given  by  defendants ;  or  by  an  entry  in  defendants'  books  show- 
ing that  they  had  had  possession  of  the  goods.4  The  handwriting 
of  the  agent  need  not  be  proved  if  the  entries  appear  to  have 
been  made  in  the  same  handwriting  for  a  sufficient  length  of 
time  for  the  jury  to  be  satisfied  that  the  person  making  them 
was  a  recognized  agent  of  the  company.5  The  bill  of  lading  or 
receipt  may  be  proved  by  producing  it  with  proof  of  signature,6 
and  of  agency  of  clerk  or  servant  who  gave  it.7  The  place  of 
delivery  is  material  where  the  agent's  authority  depends  on  it ; 8 
otherwise  a  variance  in  it  is  immaterial.9 

23.  Authority  of  receiving  agent.~\ — In  case  of  delivery  to  an 
agent  or  servant,  the  burden  is  on  the  plaintiff  to  show  that  the 
person  was  an  agent  of  defendants,  and  authorized  to  receive  the 
property  for  them,  and  to  contract  for  its  transportation.10  Very 
slight  evidence  that  a  person,  assuming  to  act  as  defendant's 
agent,  was  his  agent,  suffices  to  go  to  the  jury.11  But  neither 
hearsay,13  nor  the  supposition  of  the  witness,13  is  competent.  Evi- 
dence of  a  single  similar  act  on  the  part  of  the  alleged  agent, 
and  of  a  recognition  of  it  by  the  defendant,  may  be  enough.14  But 
evidence  that  the  clerk  was  accustomed  to  receive  goods  at  the 
company's  office  does  not  show  authority  to  receive  them  at  other 
places.15  Prima  facie,  a  servant  of  common  carriers,  allowed  by 


1  Vaughan  v.  Raleigh,  Ac.  R.  R.  Co.  63  N.  C.  1 1 ;  Edw.  on  B.  §  288  ;  Root  v. 
Great  Western  Railw.  Co.  1  Supm.  Ct.  (T.  &  C.)  10,  s.  c.  65  Barb.  619,  affi'd  in  55  N. 
Y.  636;  Bartee  v.  Wheeler,  49  N.  II.  9,  s.  o.  6  Am.  R.  434. 

8  Southern  Express  Co.  v.  Thornton,  41  Miss.  216,  222. 

3  Notwithstanding  it  includes  other  goods  not  mentioned  in  the  complaint.    Wal- 
lace v.  Vigus,  4  Blatchf.  (Ind.)  260. 

4  Root  v.  Great  Western  R.  Co.  1   Supm.  Ct.  (T.  <t  C.)  10,  B.  c.  65  Barb.  619, 
affi'd  in  55  N.  Y.  636. 

6  Id. 

6  According  to  rules  stated  on  pp.  891  to  398  of  this  vol.     Armstrong  v.  Fargo, 
8  Hun,  175. 
'Id. 

8  Cronkite  v.  "Wells,  32  N.  Y.  247.    As  to  delivery  "  on  board,"  compare  Goddard 
T.  Mallory,  52  Barb.  87 ;    Brown  v.  Powell,  <fcc.  Co.  L.  R.  10  C.  P.  562,  s.  c.  14 
MoaFs  En:r.  420. 

9  Newstadt  v.  Adams,  5  Duer,  43. 

10  Thurman  v.  Wells,  18  Barb.  500. 

11  West(  rn  Transp.  Co.  v.  Hawley,  1  Daly,  327 ;  Rogers  v.  Long  Island  R.  R.  Co. 
2  Lans.  2fi9;  and  see  Hughes  v.  N.'Y.  <fe  N.  H.  R.  R.  Co.  36  Super.  Ct.  (J.  <fe  S.)  222. 
As  to  evidence  of  authority  to  sign  bills  of  lading  on  ship, — see  Ward  v.  Green,  6 
Cow.  173;  Dows  v.  Greene,  16  Barb.72  ;  The  Freeman  v.  Buckingham,  18  How.  182; 
Walter  v.  Brewer,  11  Mass.  99 ;  Reynolds  v.  Toppan,  15  Mass.  37l> ;  Citizens'  Bank  v. 
Nantucket  Steamboat  Co.  2  Story  C.  Ct.  16. 

14  Spade  v.  Hudson  River  R.  R.  Co.  16  Barb.  383. 

13  Butler  v.  Hudson  River  R.  R.  Co.  3  E.  D.  Smith,  571. 

14  "Wilcox  v.  Chicago,  dc.  R.  R.  Co.  6  Reporter,  114;   Glasco  v.  N.  Y.  Central  R. 
R.  Co.  33  Barb.  657. 

15  Croukite  v.  Wells,  32  N.  Y.  247. 


COMMON  CARRIERS  OF  GOODS.  565 

them  to  take  particular  property  for  carriage,  takes  it  as  their 
servant ;  and  the  fact  that  they  allowed  him  to  retain  the  com- 
pensation does  not  rebut  this  presumption,  without  evidence  that 
the  credit  was  given  to  him  by  the  owner  of  the  goods.1 

24.  Implied  contract^ — Evidence  that  the  goods  were  deliv- 
ered on  board  is  sufficient  to  charge  the  carrier  without  showing 
a  bill  of  lading  or  other  express  agreement  made.2 

25.  Address /  Instructions ;  "C.  0.  7?."] — The  address  maybe 
proved  by  a  witness  without  producing  the  writing.3    It  is  prima 
facie  evidence  of  instructions  to  deliver  or  forward  accordingly.4 
Instructions  or  remonstrances  as  to  care,  communicated  to  the 
defendants  or  their  proper  servant,  by  the  plaintiff  or  his  agent,5 
are  competent,  as  charging  them  with  notice  of  their  duty.6    A 
mistake,  even  in  written  instructions,  drawn  up  by  defendant's 
agent,  contrary  to  the  previous  oral  agreement,  may  be  proved 
by  parol.7 

The  mark  "  C.  O.  D."  may  be  explained  by  oral  evidence  of 
usage  not  inconsistent  with  it.8 

26.  Express  contract.'] — A  contract,  if  alleged  as  the  founda- 
tion of  the  action,  must  be  proved,  and  negligence  not  alleged 
may  also  be  proved  ; 9  but  without  proof  of  contract,  negligence 
in  gratuitous  carriage  is  not  enough.10    Omission  to  allege  special 
exemptions  in  the  contract  is  not  material,  unless  there  is  evi- 
dence to  bring  the  case  within  an  exemption.11     The  bill  of  lad- 
ing or  receipt,  unless  admitted  in  pleading,  must  be  proved  to 
have  been  executed  on  defendant's  part,  before  it  can  be  put  in 
evidence.     It  is  proved  by  evidence  of  the  signature,12  and  of  the 
authority  of  the  agent  if  signed  by  agent.13    In  addition  to  the 
general  principles  already  stated,14  it  should  be  observed  that  if 
duplicate  bills  of  lading  or  contracts  are  given,  the  one  signed  by 
defendant  and  delivered  to  plaintiff  is  the  primary  evidence  in 


1  Farmers,  <fec.  Bank  v.  Champlain  Transp.  Co.  23  Yt.  186,  203.  Compare  Butler 
v.  Basing,  2  C.  &  P.  613. 

9  Robinson  v.  Chittenden,  69  N.  Y.  625,  531,  rev'g  7  Hun,  133;  8.  p.  Baylis  v. 
Lintott,  L.  R.  8  C.  P.  345,  s.  c.  5  Moak's  Eng.  319. 

3  Burrell  v.  North,  2  Car.  <fc  Kirw.  680 ;  s.  p.  Commonwealth  v.  Morrcll,  99  Mass. 
642. 

*  Edw.  on  B.  §  580. 

*  SOLS  South,  <to,  Ala.  R.  R.  Co.  v.  Henlein,  62  Ala.  606,  s.  c.  23  Am.  R.  678. 
6  Black  v.  Camden,  <fec.  R.  R.  Co.  45  Barb.  40,  412 ;  and  see  paragraph  16. 

'  Malpas  v.  London  <fc  S\v.  Ry.  Co.  L.  R.  1  C.  P.  336 ;  Rose.  N.  P.  20. 

8  C'ollender  v.  Dinsmore,  55  N.  Y.  200. 

9  Bostwick  v.  Baltimore,  <fec.  R.  R.  Co.  45  N.  Y.  712,  rev'g  65  Barb.  137. 

10  Flint,  «fcc.  Rw.  Co.  v.  Weir,  N  ich.  S.  Ct.  June.  1877;  Cent,  L.  J.  2S5. 

11  Newstadt  v.  Ad  ms,  5  I)uer,  43  ;    School  District  in  Medfield  v.  Boston,  IL  A 
Erie  R.  R.  Co.  102  Mass.  652,  655,  8.  c.  3  Am.  R.  602.     Comrmre  Edw.  on  B.  §  671. 

19  For  t!>e  mode  of  proving  signature,  see  pp.  891-8  of  this  voL     Armstrong  v. 
Farg->.  8  Hun,  145;  and  see  The  Colombo,  3  Blatchf.  521. 
"Paragraph  23. 
M  Paragraphs  2  and  8,  and  2L 


566  ACTIONS  AGAINST  BAILEES,   <fcc. 

plaintiff's  favor,1  and,  if  the  two  differ,  is  the  controlling  evi- 
dence of  the  contract  as  against  the  carrier,  and  in  favor  of  the 
holder  of  the  bill.3  A  promise  of  the  agent  of  a  second  line, 
after  receiving  the  goods  and  without  new  consideration,  to  for- 
ward them  earlier  than  in  usual  course,  is  not  evidence  from 
which  the  jury  may  infer  a  contract  to  do  so.8  The  power  of  a 
railroad  company  to  make  an  express  contract  to  carry  beyond  its 
own  terminus  may  be  presumed.4 

27.  Authority  to  make  special  contract^ — Evidence  that  the 
agent  was  the  head  agent  of  the  road,  at  the  station  where  the 
goods  were  received,  and  had  full  charge  of  receiving  and  for- 
warding there,  is  sufficient  to  sustain  an  inference  that  he  was 
authorized  to  make  a  special  contract  in  the  ordinary  course,8 
although  he  testify  that  he  was  not.6    A  single  similar  act,  and 
the  ratification  of  it  by  the  defendants,  may  be  enough  to  justify 
inferring  authority.7 

28.  Description  of  "goods."] — A  variance  in  description  which 
does  not  mislead  is  not  usually  material.8    The  invoice  is  not 
alone  competent  to  prove  contents  of  packages.9    Its  competency 
usually  depends  on  the  witness.10 

29.  Amount.'] — If  plaintiff  produces  no  bill  of  lading,  he  must 
in  some  other  way  show  the  amount  delivered  to  the  carrier. n 
The  returns  of  a  private  measurer  are  not  competent  against  one 
•who  did  not  assent  to  his  measuring,12  except  as  auxiliary  to  the 
testimony  of  a  witness.13 

30.  Condition^ — It  is  not  an  absolute  rule  that  plaintiff  must 
give  direct  evidence  that  the  injured  goods  were  in  good  condition 
when  shipped ; M  but  it  is  enough  to  show  the  existence  on  the 
vessel  of  a  probable  cause  of  the  injury  shown.15    Goods  shipped 
in  cases  are  presumed  to  h?,ve  been  properly  packed  and  in  fit 
state  for  transportation.16    Evidence  that,  at  the  time  of  delivery, 


1  Cleveland  &  Toledo  R.  R.  Co.  v.  Perkins,  17  Mich.  296. 

9  The  Thames,  14  Wall.  105. 

3  Railroad  Company  v.  Reeves,  10  Wall.  176. 

4  Railway  Company  v.  McCarthy,  96  U.  S.  (6  Otto),  258,  266 ;  and  see  Simmons 
T.  Law,  4  Abb.  Ct.  App.  Dec.  241.     As  to  carriage  bi-yond  the  realm,  630  Nugent  v. 
Smith,  L.  R.  1  C.  P.  L)iv.  423,  s.  c.  17  Moak's  Eng.  330,  reVg  L.  R.  1  C.  P.  Div.  19, 
25,  s.  c.  15  Moak's  En^'.  203,  209. 

5  Tnff  Vale  Rw.  Co.  v.  Giles,  22  Eng.  L.  <fe  Eq.  202. 

*  Deming  v.  Grand  Trunk  Rw.  Co.  43  N.  H.  455,  s.  c.  2  Am,  R.  267. 

*  Wi'.c<oc  v.  Chicago,  Ac.  R.  R.  Co.  6  Reporter,  114. 

*  See  Zeigler  v.  "tt  ells,  28  Cal.  263,  265. 
9  Watson  v.  Yates,  10  Mart.  La.  688. 

10  See  pp.  319  to  326  of  this  vol. 

11  Manning  v.  Hoover,  Abb.  Adm.  188. 
14  Bissel  v.  Campbell,  54  N.  Y.  853. 

13  Pages  319  to  826  of  this  vol. 

14  Paragraph  f«,  note  8. 

15  Moore  v.  Harris,  L.  R.  1  Abb.  Cas.  318,  326,  s.  c.  16  Moak's  Eng.  4L 
"  Euglish  v.  Ocean  Steam  Nav.  Co.  2  Blatchf.  425. 


COMMON  CARRIERS  OF  GOODS.  567 

the  goods  wore  in  good  condition,  in  those  respects  in  which  they 
were  open  to  inspection,  is  proved  prima  facief  but  not  conclu- 
sively, bv  words  in  the  bill  of  lading  signed  by  defendants,  such 
as  "  in  good  order,"  or  "  well  conditioned," 2  and  this  presumption 
is  not  reduced  by  the  words  "  weight,  contents  and  value  un- 
known." 3  This  evidence  suffices  to  throw  the  burden  of  proof 
upon  the  carrier,  to  show  that  the  goods  were  not  in  good  order 
when  received  by  him.4  If  defendants  were  a  connecting  line, 
evidence  of  delivery  to  the  first  company  in  good  order  raises 
a  presumption  that  the  goods  came  to  defendant's  hands  in  good 
order.5 

Evidence  of  bad  condition  when  the  drayman  employed  by 
the  carrier  delivered  the  goods  to  plaintiff,  is  competent  against 
the  carrier  from  whom  the  drayman  received  them.6  If  defend- 
ants were  the  earlier  of  several  connecting  lines,  and  injury  in 
their  possession  is  shown,  it  may  be  presumed,  in  absence  of  any- 
thing to  indicate  the  contrary,  that  no  further  injury  occurred 
while  the  goods  were  in  the  hands  of  the  succeeding  carrier.7 
Evidence  as  to  bad  condition  is  not  necessarily  confined  to  the 
period  when  the  goods  were  in  the  carrier's  possession  as  carrier, 
but  may  include  a  later  time  within  limits  affording  just  infer- 
ences as  to  the  existence,  nature  and  cause  of  injury  in  relation 
to  that  period.8  The  declarations  and  admissions  of  the  carrier's 
agent  are  competent  within  limits  already  stated.9  The  letter  of 
plaintiff's  agent,  to  him,  written  on  receiving  the  goods,  and  stat- 
ing their  condition,  is  not  evidence  in  favor  of  plaintiff  against 
the  bailee  from  whom  the  agent  received  them.10 

Plaintiff  having  given  a  receipt  for  the  goods  as  delivered  to 
him  in  good  condition,  may  explain  it  by  testimony  that  they 
were  not,  and  that  he  wished  to  qualify  the  receipt,  but  was  not 
allowed  to  do  so.11 

31.  Instructions:  Route:  Terminus^ — A  bill  of  lading  or 
receipt  does  not  exclude  oral  evidence  of  instructions  not  incon- 
sistent with  it.12 

If  the  receipt  or  bill  expressly  allows  forwarding  by  any  car- 


'  Hastings  v.  Pepper,  11  Pick.  41 ;  Nelson  v.  Woodruff,  1  Black,  156,  160. 
s  Tarhox  v.  Eastern  Steamboat  Co.  60  Me.  339. 

*  English  v.  Ocean  Steam  Nav.  Co.  2  Blatchf.  425;  and  see  The  Columbo,  3  Id. 
621  ;  The  California,  2  Snwy.  12. 

*  Trice  v.  Powell,  3  N.  Y.  322;  Illinois  R.  R.  Co.  v.  Cowles,  32  111.  116,  121. 

4  Smith  v.  N.  Y.  Centnl  II.  R.  Co.  43  Barb.  225 ;  Edw.  on  B.  §  671 ;  Laughlin  T. 
Chicago.  <fcc.  R.  R.  Co.  28  Wis.  204. 

«  B.ircluy  v.  Clyde,  2  E.  D.  Smith,  95. 
'  The  Norman,  1  Newb.  Adm.  625. 

8  Curtis  v.  Chicago,  <fec.  R.  R.  Co.  18  Wis.  312;    Holden  v.  N.  Y.  Central  R.  R, 
Co.  64  N.  Y.  662. 

9  Page  44  of  this  vol.     Burnside  v.  Grand  Trunk  R.  R.  Co.  47  N.  II.  fiM. 
10  Owen  v.  Jones,  14  Ark.  602.     Compare  Beaver  v.  Taylor,  1  Wall.  637. 
"  Tierney  v.  N.  Y.  C.  &  U.  R.  R.  R.  Co.  10  HUD,  669. 

"  Edw.  on  B.  §  684. 


568  ACTIONS  AGAINST  BAILEES,  Ac. 

rier,  evidence  of  oral  instructions  to  forward  a  particular  way  is 
not  competent  against  the  carrier.1  If  only  the  termini  of  a  voy- 
age are  mentioned,  there  is  a  presumption  that  a  direct  voyage  was 
intended  ;  but  this  may  be  rebutted  by  evidence  of  usage,  or  parol 
understanding ; 2  but  if  it  be  shown  that  there  were  two  usual  and 
customary  routes,  the  carrier  has  his  option,  and  cannot  be  charged 
by  oral  evidence  of  an  agreement  to  take  one  exclusively.3 

Plaintiff  may  show  an  express  oral  agreement,4  or  an  implied 
agreement  arising  from  the  usage  of  business  and  his  instruc- 
tions,5 as  to  what  was  to  be  done  with  the  goods  after  reaching 
the  terminus  specified  in  the  bill  of  lading,  even  though  it  require 
further  transportation.6 

32.  Stowage. .] — A  clean  bill  of  lading  imports  that  the  goods 
are  to  be  carried  under  deck  ;  and  parol  evidence  of  a  prior  or 
contemporaneous  agreement  of  the  shipper  and  carrier,  that  they 
might  be  carried  on  deck  is  not  competent ; 7  but  evidence  of  a 
usage  of  the  particular  trade  so  to  carry  is  competent.8    Evidence 
of  an  agreement  for  particularly  careful  stowage  under  deck  may 
be  competent.9 

The  actual  stowage  may  be  shown  by  the  declarations  of  the 
master,  under  limits  already  stated.10 

The  question  whether  goods  were  properly  stowed  is  a  proper 
subject  for  expert  testimony ;  and  a  seafaring  man  accustomed  to 
stowing  and  carrying  such  goods  is  competent  to  give  an  opin- 
ion ; u  but  the  question  whether  the  injury  could  have  occured  to 
the  goods  had  they  been  stowed  as  alleged  may  not  be.12 

33.  Time:  Delay.] — A  bill  of  lading  making  no  mention  of 
time,  cannot  be  varied  by  evidence  of  an  incidental  oral  stipula- 
tion as  to  time.13    But  evidence  of  usage  is  competent.14 

Since  the  time  of  the  arrival  is  peculiarly  within  the  carriers' 
knowledge,  very  slight  evidence  on  plaintiff's  part  suffices  to 


I  Hincldey  v.  N.  Y.  Central  R.  R.  Co.  56  N.  Y.  429. 

II  Lowry  v.  Russell,  8  Pick.  360.     Compare  Niles  v.  Culver,  8  Barb.  205 ;  "White 
V.  Van  Kirk,  25  Id.  16. 

3  White  v.  Ashton,  51  N.  Y.  280. 

4  Baltimore,  <fec.  Steamboat  Co.  v.  Brown,  54  Penn.  St.  77. 

6  Hooper  v.  Chicago  &  Nev.  R.  R.  Co.  27  Wis.  81,  s.  c.  9  Am.  R.  439. 

5  Baltimore,  <fec.  Steamboat  Co.  v.  Brown  (above).      Compare  Wolfe  v.  Myers,  3 
Sandf.  7. 

1  The  Delaware,  14  Wall.  579,  692,  and  cases  cited ;  Edw.  on  B.  §  588 ;  and  if  it 
stipulates  that  a  part  may  be  so  carried,  oral  evidence  of  consent  that  others  be  so 
carried  is  incompetent.  Sayward  v.  Stevens,  3  Gray,  97, 102.  The  owner's  knowl- 
edge is  not  a  waiver.  The  Petona,  Ware,  2d.  ed.  541. 

8  Baxter  v.  Leland,  1  Blatchf.  626.    But  see  p.  296  of  this  vol. 

9  The  Star  of  Hope,  2  Sawy.  15 

10  Page  44  of  this  voL      Price  v.  Powell,  3  N.  Y.  322.      Compare  Mallory  v.  Per- 
kins, 9  Bosw.  572. 

11  Price  v.  Powell,  3  N.  Y.  322. 

14  New  Eng.  Glass  Co.  v.  Lowell,  7  Cush.  (Mass.)  319. 

13  Higgins  v.  U.  S.  Mail  Steamship  Co.  3  Blatchf.  282, 

14  Id.    Cochran  v.  Retberg,  3  Esp.  121. 


COMMON   CARRIERS  OF   GOODS.  569 

throw  on  them  the  burden  of  proof  as  to  time."1  If  injury  is 
shown  to  have  been  caused  by  delay,  plaintiff  need  not  .show  the 
delay  to  have  been  unreasonable ;  but  the  burden  is  on  the  car- 
riers to  excuse  it.2  The  cause  of  delay  may  be  shown  by  evidence 
of  declarations  forming  part  of  the  res  gestcw?  If  the  carriers  ex- 
cuse delay  by  reason  of  accumulation  of  freight,  evidence  that 
other  goods  subsequently  shipped  arrived  sooner  is  competent  as 
tending  to  prove  that  plaintiff's  goods  were  not  sent  in  regular 
order.4 

34.  Burden  of  proof  as  to  loss,  and  cause  of  loss?] — The  us- 
ual course  of  proof  is  for  plaintiff  to  produce  the  bill  of  lading, 
showing  the  delivery  of  the  property  to  defendants  and  their  con- 
tract to  carry,  and  to  prove  non-delivery,  or  arrival  in  a  damaged 
state,  and  the  damages  sustained.  This  evidence,  if  there  be 
nothing  to  indicate  that  the  loss  was  from  a  cause  consistent  with 
the  carriers'  exemption  from  liability,6  makes  a, prima  facie  case,7 
sufficient  to  go  to  the  jury  in  the  absence  of  other  evidence.  The 
presumption  is  that  the  injury  was  occasioned  by  defendants'  act 
or  default.8 

If  defendants  rely  on  an  exemption  by  reason  of  the  nature  of 
the  cause  of  loss,  they  must  show  that  it  was  one  of  the  excepted 
perils ; 9  but  need  not  disprove  negligence  unless  the  circumstances 
are  of  such  a  character  as  to  raise  a  presumption  of  negligence.10 

Defendants  having  thus  shown  that  the  loss  was  due  to  an  ex- 
cepted peril,  the  burden  is  thrown  on  plaintiff  to  show  defend- 
ants' negligence.11 

If  plaintiff's  case  shows  a  cause  of  loss  presumptively  consist- 
ent with  the  carriers'  exemption,  he  must  go  further  and  show 


•  Place  v.  Union  Expre<a  Co.  2  Hilt.  19. 

3  Harris  v.  Northern  Ind.  R.  R.  Co.  20  N.  Y.  232,  236. 
8  Sisson  v.  Cleveland,  <tc.  R.  R.  Co.  14  Mich.  489,  496. 

4  Acheson  v.  N.  Y.  Central  &  II.  R  R.  R.  Co.  61  N.  Y.  652. 

6  The  rule  here  stated  is  applied  by  the  majority  of  the  best  considered  cas?s,  al- 
though there  tiro  numerous  authorities  to  thj  contrary.  It  is  applicable  alike  in 
cases  of  loss  by  expressly  excepted  perils,  and  of  injury  by  latent  causes  existing  in 
tho  goods  before  the  issue  of  the  bill  of  lading.  When  there  is  no  contract,  and  the 
question  is  solely  on  the  carrier's  common  law  liability,  Wharton  says  the  carrier  has 
the  burden  of  disproving  negligence.  Whart  on  Neg.  §  593,  ^ind  see  Agnew  v. 
Steamer,  27  C'nl.  425,  431.  Contra,  5  Am.  L.  Rev.  205,  225. 

For  the  reasons  in  f:iv»r  of  requiring  the  carrier  to  prove  the  cause  of  loss,  see, 
Rixford  v.  Smith,  62  N.  II.  355,  s.  c.  13  Am.  R.  42.  For  the  contrary,  see  the  dis- 
senting opinion  by  BIGELOW,  C.  J.,  in  Cass  v.  Boston  <t  Lowell  R.  R.  Co.  14  Allen,  448. 

6  Paragraph  6. 

7  Transportation  Co.  v.  Downer,  11  Wall.  133,  nnd  cases  cited ;  Fenn  v.  Timpson, 
4  E.  D.  ^mith.  276;  bhaw  v.  Gardner,  12  Gray,  488.     So  held  of  live  stock.    Louis- 
ville, Ac.  R.  R.  Co.  v.  lle.lgrr,  9  Bush.  (Ky.)  645,  s.  c.  15  Am.  R.  740. 

8  Nelson  v.  Woodruff,  1  Muck,  156,  160. 

*  Id. ;   Steamer  Ni  igura  v.  Cordes,  21   How.  U.  S.  7,  29 ;    Taylor  v.  Liverpool  & 
Gt.  Western  bteam  Co.  L.  R.  9  Q.  B.  546,  s.  c.  10  Moak's  Eng.  172. 

10  Transportation  C'o.  v.  Downer,  11  Wall.  133,  and  cases  cited. 

11  Downer  v.  Steam  Nav.  Co.  (above);  Railroad  Co.  v.  Reeves,  10  Wall.  176;  Pat- 
terson  v.  Clyde,  07  Penn.  St.  500 ;  Faruham  v.  R.  R.  55  Id.  63. 


570  ACTIONS  AGAINST  BAILEES,  <fcc. 

negligence.1  If  it  shows  loss  from  a  cause  that  would  not  havo 
happened  but  for  the  want  of  care  on  defendants'  part,  this  is 
enough  to  go  to  the  jury.2  Proof  that  defendants  carried  the 
thing  in  a  manner  contrary  to  reasonable  instructions  on  the 
package,  throws  on  them  the  burden  of  proving  that  the  injury 
was  not  attributable  to  this.3 

35.  Contract  of  connecting  lines.'] — The  carrier's  acceptance 
of  goods  marked  for  a  point  beyond  his  own  route,  does  not 
alone  imply  a  contract  involving  liability  as  carrier  beyond  his 
route.4    But  such  a  liability  may  be  established  by  express  con- 
tract,5 or  by  showing  circumstances  indicating  such  an  under- 
standing,6— for  instance,  that  the  company  held  itself  out  as  a 
carrier  for  the  entire  distance,7  or  received  freight  for  the  entire 
distance,8  or  even  agreed  on  an  entire  sum  to  be  paid  at  the  other 
end ; 9  or  that  the  connecting  lines  divided  through  freights  in  an 
agreed  manner.10 

36.  Non-delivery. ,] — If  plaintiff  alleges  non-delivery,  the  bur- 
den is  on  him  to  prove  it.11     Slight  evidence  is  sufficient  to  go  to 
the  jury  in  the  absence  of  evidence  of  delivery.12    Evidence  of 
the  declaration  or  admission  of  the  agent  of  the  carrier  (if  com- 
petent,)13 to  the  effect  that  the  goods  were  lost,  or  that  he  did  not 


1  Paragraph  6. 

s  Russell  Mfg.  Co.  v.  N.  H.  Steamboat  Co.  50  N.  Y.  121,  distinguishing  Lamb  v. 
Camden  &  Amboy  R.  R.  Co.  46  Id.  121.  Evidence  that  the  casualty  or  the  inability 
to  rescue  the  goods  resulted  from  a  defect  in  the  vehicle,  is  sufficient,  without  further 
proof  of  negligence,  to  sustain  a  verdict  against  the  carrier.  Empire  Transp.  Co.  v. 
Wamsutta  Oil  Co.  63  Penn.  St.  14,  s.  c.  8  Am.  II.  615.  If  defendant  would  reduce 
the  damage  by  tlie  fact  that  the  injury  chiefly  caused  by  his  negligence  was  partly 
owing  to  an  excepted  peril,  he  must  show  to  what  extent.  Speyer  v.  The  Roberts,  2 
Sawy.  1. 

a  Hastings  v.  Pepper,  11  Pick.  41. 

4  This  is  now  recognized  as  the  American  rule.  R.  R.  Co.  v.  Pratt,  22  Wall.  129, 
and  cases  cited;  Root  v.  Great  W.  R.  R.  Co.  45  N.  Y.  524 ;  Gr.iy  v.  Jackson,  51  N. 
H.  9,  s.  c.  12  Am.  R.  1.  The  English  rule,  adopted  in  a  few  of  the  States,  is  the  con- 
trary. Muschamp  v.  Lancaster,  <fec.  R.  R.  Co.  8  Mees.  &  W.  421 ;  Nashua  Lock  Co. 
v.  Worcester  &  Nashua  R.  R.  Co.  48  N.  H.  339,  s.  c.  2  Am.  R.  242,  and  cases  cited  ; 
Angle  v.  Mississippi,  <tc.  R.  R.  Co.  9  Iowa,  487,  493;  2  Am.  Law  Rev.  420  ;  Gray  v. 
Jackson,  51  N.  H.  9,  s.  c.  12  Am.  R.  1,  and  esses  cited.  But  the  presumption  may 
be  rebutted.  Cincinnati,  <fec.  R.  R.  Co.  v.  Pontius,  19  Ohio  St.  221,  s.  c.  2  Am.  R.  391. 

8  Contra,  as  to  railroad  companies  in  Connecticut,  22  Conn.  502  ;  33  Id.  166. 

6  R.  R.  Co.  v.  Pratt  (above). 

*  Id. ;  Mann  v.  Birchard,  40  Vt.  326,  337. 

8  R.  R.  Co.  v.  Pratt  (above);    St.  John  v.   Express  Co.  1  Woods,  612 ;    and  fee 
Nashua  Lock  Co.  v.  Worcester  &  Nashua  R.  R.  Co,  48  N.  II.  339,  s.  c.  2  Am.  R.  242. 

9  R.  R.  Co.  v.  Pratt  (above). 

10  Barter  v.  Wheeler,  49  N.  H.  9,  s.  c.  6  Am.  R.  434  ;  Nashua  Lock  Co.  v.  Worcester 
&  Nashua  R.  R.  Co.  48  N.  H.  339,  s.  c.  2  Am.  R.  242,  and  cases  cited. 

11  Woodbury  v.  Frink,  14  111.  279 ;  The  Falcon,  3  Blatchf.  64.     If  the  contract  al- 
lows delivery  to  either  of  two  persons,  the  evidence  must  relate  to  each.     The  Fal- 
con (above). 

18  Griffith  v.  Lee,  1  Carr.  <t  R.  110;  The  Falcon  (above);  Rose.  N.  P.  610;   Pkce 
V.  Union  Express  Co.  2  Hilt.  19. 
"Paragraph  44. 


COMMON  CARRIERS   OF  GOODS.  571 

know  of  their  delivery,  and  believed  he  must  have  known  if  they 
had  been  delivered,  is  prima  facie  enough.1  Non-delivery  (or 
delivery  in  bad  condition)  by  the  last  of  the  lines  connecting  with 
defendants',  by  which  the  goods  ought  to  have  been  carried  after 
they  left  defendants'  hands,  is  prima  facie  evidence  of  non-de- 
livery (or  delivery  in  bad  condition,  as  the  case  may  be)  by  de- 
fendants.2 

37.  Negligence.'] — A  negligent  breach  of   contract    may  be 
proved,  though  negligence  be  not  alleged.3 

Non-delivery,  or  delivery,  in  bad  condition,  of  goods  received 
in  good  condition,  is  prima  facie  evidence  of  negligence.4  So  is 
unusual  delay  in  failing  to  deliver  according  to  the  general  course 
of  business.®  Negligence  may  be  presumed  from  a  loss  and 
failure  to  give  any  account.6 

A  demand  and  refusal  to  deliver,  unexplained,  is  enough  to 
go  to  the  jury  as  evidence  of  fraud  or  gross  negligence.7  But 
accident  unexplained  is  not  sufficient  evidence  of  gross  negli- 
gence.8 Where  the  plaintiff  is  required,  by  the  terms  of  the  re- 
ceipt, to  prove  negligence,  he  must  also  show  that  it  caused  or  at 
least  contributed  to  the  injury.9 

38.  Cause  of  injury.'] — If  a  cause,  the  knowledge  of  which 
involves  special  experience  or  skill,  is  assigned, — such  as  unsea- 
worthiness,10 bad  stowage,11  or  chemical  action,12  and  the  like, — the 
opinions  of  witnesses  are  competent ;   but,  on  inferences  from 
facts  of  common   observation  and  experience,  they  are  not.13 
"Weather  may  be  proved  by  testimony  of  witnesses,14  or  by  the 
official  record  of  weather ;  ™  and  whether  its  severity  was  suffi- 
cient to  freeze  the  goods,  by  the  opinions  of  witnesses  cognizant 
of  the  mode  in  which  they  were  protected.16 


1  Edw.  on  B.  §  069. 

s  Laughlin  v.  Chicago,  Ac.  Rw.  Co.  28  Wis.  204,  P.  c.  9  Am.  R.  493. 

8  Bostwick  v.  Baltimore  <fe  Ohio  R.  R.  Co.  45  N.  Y.  712,  rev*g  55  Barb.  137 ;  and 
see  School  District  in  Medfield  v.  Boston,  II.  <fe  Erie  R.  R.  Co.  102  Mass.  552,  s.  c.  3 
Am.  R.  502. 

4  Story  on  B.  §  629 ;  Edw.  on  B.  §  671 ;  Westcott  v.  Fargo,  G  Lans.  310,  326. 
So,  also,  of  baggage,  45  N.  Y.  184.  But  it  is  error  to  charge  that  this  throws  the  bur- 
den of  proof  on  defendant  to  show  duo  care.  Cochrau  v.  Dinsmore,  49  N.  Y.  249. 

8  Mann  v.  Birchard,  40  Vt.  326,  337. 

6  Am.  Express  Co.  v.  Sands,  55  Pcnn.  St.  140. 

*  Newstaclt  v.  Adams,  5  Duer,  43,  and  cases  cited ;  Steers  v.  Liverpool,  <tc.  St. 
Co.  67  N.  Y.  1. 

8  French  v.  Buffalo,  N.  Y.  &  Erie  R.  R.  Co.  2  Abb.  Ct.  App.  Dec.  196 ;    Bankard 
v.  Baltimore,  <fcc.  R.  R.  Co.  34  Md.  197,  202. 

9  Cocluan  v.  Dinsmore,  49  N.  Y.  249. 

10  Baird  v.  Daly,  68  N.  Y.  547. 

11  Paragraph  32. 

"  Turner  v.  The  Black  Warrior,  1  McAll.  181. 

13  Ilayme  v.  Naylor,  18  Tex.  498,  609 ;  and  see  pp.  310,  387  of  this  ToL 

14  Curtis  v.  Chicago,  <fec.  K.  R.  Co.  18  Wis.  812. 
'*  Page  499  of  this  vol. 

16  Curtis  v.  Chicago,  <tc.  R,  R.  Co.  (above). 


572  ACTIONS  AGAINST  BAILEES,  <tc. 

39.  Theft  or  rollery.~\ — The  burden  of  proof,  as  to  whether 
theft  or  robbery  was  committed  by  the  carrier's  servants  or  by  a 
stranger,  is  on  the  carrier.1     It  is  enough  for  plaintiff  in  any  case 
to  show  that  it  is  more  probable  the  carrier's  servant  committed 
it,  than  that  a  stranger  did ;  he  need  not  fix  the  probability  on 
any  particular  person.2    Declarations  of  the  proper  officer  of  de- 
fendants' to  the  police,  when  causing  investigation,  are  competent 
against  the  defendants.8 

40.  Conversion .] — An    allegation    of    conversion    does    not 
admit  of    evidence  of   mere  loss,  non-delivery,4  or  delayed  de- 
livery.5 

41.  Plaintiffs  title.'] — If  another  than  plaintiff  is  not  named 
as  consignee,  plaintiff's  evidence  that  the  carrier's  contract,  ex- 
press or  implied,  was  made  with  himself,  is  sufficient  proof  of 
his  title.6    If  plaintiff   is  the  consignor  in  a  bill  of  lading  or 
receipt  naming    another  as  consignee,  he  must   give  extrinsic 
evidence  of  his  ownership,  to  rebut  the  presumption  that  the 
consignee  is  owner,7  unless  he  shows  a  special  contract  with 
himself,  not  necessarily  dependent  on  title  to  the  goods.8    If  he 
is  consignee,  the  bill  or  receipt  naming  him,  or  the  fact  of  con- 
signment, is  alone  presumptive 9  but  not  conclusive 10  evidence  of 
his  ownership.     If  plaintiff  is  not  named,  evidence  of  an  assign- 
ment to  him  from  the  consignee,11  or  his  possession  of  the  bill  of 
lading  by  indorsement  from  the  consignee,12  or  even  possession  of 
an  unindorsed  bill  of  lading,  with  extrinsic  evidence  that  plaintiff 
is  a  bona  fide  holder  for  value,  by  a  transfer  with  intent  to  pass 
title,13  is  enough. 


1  Knell  v.  U.  S.  &  Brazil  Steamship  Co.  33  Super.  Ct.  (1  J.  <fe  S.)  423  ;  and  see 
28  "Wise.  204,  s.  c.  9  Am.  R.  493. 

1  Vaughton  v.  London  <fe  N.  W.  Ry.  Co.  L.  R.  9  Ex.  93,  s.  c.  8  Moak's  Eng. 
535. 

3  Kirkstall  Brewery  Co.  v.  Furness  Ry.  Co.  L.  R.  9  Q.  B.  468,  s.  c.  10  Moak's 
Eng.  118. 

4  Tolano  v.  National  Steam  Navigation  Co.  5  Robt.  318,  s.  c.  4  Abb.  Pr.  N.  S. 
316,  35  How.  Pr.  496. 

«  Brings  v.  N.  Y.  Central  R.  R.  Co.  28  Barb.  515. 

6  Paragraphs  4  and  5.     Further  proof  of  title,  ii  required,  may  be  made  as  stated 
in  the  chapter  on  CONVERSION. 

7  Sweet  v.  Barney,  23  N.  Y.  335,affi'g  24  Barb.  533  ;  Krulder  v.  Ellison,  47  N.  Y. 
36. 

8  Southern  Express  Co.  v.  Craft,  49  Miss.  480,  s.  c.  19  Am.  R.  4;   Dunlop  v. 
Lambert,  6  Cl.  <fe  P.  600,  8.  P.  Blanchard  v.  Page,  8  Gray,  281.     Compare  Thompson 
v.  Fargo,  49  N.  Y.  188,  rev*g  58  barb.  575. 

9  Sweet  v.  Barney  (above) ;  Ogden  v.  Coddington,  2  E.  D.  Smith,  317  :  Taplin  v. 
Packard,  8  Barb.  220.    Compare  Ela  v.  Am.  Merchants'  Union  Express  Co.  29  Wis. 
611,  8.  c.  9  Am.  R.  619. 

10  Price  v:  Powell,  3  N.  Y.  322  ;  Shepherd  v.  Harrison,  L.  R.  5  H.  L.  116. 

11  Chandler  v.  Belden,  18  Johns.  157 ;  proved  as  stated  in  chapter  I. 
"  The  Thames,  14  Wall.  106,  and  cases  cited. 

13  Merchants'  Bk.  v.  Union  Co.  8  Hun,  249. 


COMMON  CARRIERS  OF  GOODS.  573 

Oral  evidence  to  show  the  real  part y  in  interest,  is  admissible 
within  limits  already  stated.1 

42.  Oral  evidence  to  explain  or  vary  bill  or  receipt.} — A  bill 
of  lading,  or  other  voucher  giving  the  terms  of  transportation, 
cannot,  in  the  absence  of  fraud  or  concurrent  mistake,  be  varied 
by  parol.2     The  principle  does  not  exclude  an  antecedent  parol 
agreement  of  a  different  character,  and  imposing  a  different  but 
not  inconsistent  obligation.8 

43.  UsayeJ] — Evidence  of    usage   is   admissible    to    explain 
either  the  language  of  the  parties,4  or  the  course  of  business  in 
view  of  which  they  contracted  so  as  to  show  what  acts  constitute 
a  performance ;  but  not  to  vary  or  contradict  the  written  con- 
tract, or  vary  the  obligation  created  by  it. 

44.  Declarations  of  agentsJ] — The  principle  determining  the 
competency  of  agents'  declarations  has  already  been  stated.5 

45.  Defenses  :    Generally^ — Except  as   against  a  bona  fide 
transferee  of  the  bill  of  lading  for  value,6  the  carrier  may  contra- 
dict it,  as  to  the  delivery  to  him  of  the  goods,7  or  as  to  their 
description,8  quantity,9  or  condition.10 

1  Tages  298,  360  and  609  of  this  vol.  Ide  v.  Sadler,  18  Barb.  32.  Compare 
Chapin  v.  Siger,  4  McLean,  378. 

a  Paragraphs  3  and  25-33  ;  Long  v.  N.  Y.  Central  R.  R.  Co.  60  N".  Y.  76.  For  a 
freer  statement  of  the  principle,  see  Baltimore,  <fec.  Steamb.  Co.  v.  Brown,  54  Penn. 
St.  77. 

Thus,  if  it  stipulates  for  the  most  direct  route,  it  cannot  be  varied  by  evidence  of 
a  previous  or  contemporaneous  oral  agreement  allowing  deviation.  Stapleton  v. 
King,  33  Iowa,  28,  8.  c.  11  Am.  R.  109.  If  the  vessel  is  mentioned,  it  is  presumed 
to  have  been  selected  by  the  owner  with  regard  to  voyage  and  date  of  sailing. 
Goddard  v.  Mallory,  52  Barb.  87.  If  the  carriers  rely  on  the  fact  that  the  owner 
selected  the  vehicle  with  knowledge  of  defects  in  it,  which  caused  the  injuries,  they 
must  show  affirmatively  that  he  had  notice  of  such  defects.  Harris  v.  Northern 
Indiana  R.  R.  Co.  20  N.  Y.  232,  236. 

1  Blossom  v.  Griffin,  13  N.  Y.  569.  For  a  summary  of  the  law,  as  to  the  effect  of 
bill  of  lading,  SPO  14  Wall.  600. 

4  See  pp.  296,  485  and  517  of  this  vol.  The  Delaware,  14  Wall.  "579;  The 
Schooner  Reesule,  2  Sumn.  667 ;  Bourne  v.  Gatliffe,  11  Cl.  &  F.  45.  71. 

6  Page  44  of  this  vol.     Burnside  v.  Grand  Trunk  R.  R.  Co.  47  N.  IT.  554;  Price 
v.  Powell,  3  N.  Y.  322,  325  ;    Fogg  v.  Child,  13  Barb.  246  ;    Virginia  &  Tenn.  R.  R. 
Co.  v.  Sayers.  26  Gratt.  323,  351 ;  Packet  Co.  v.  Clough,  20  Wall.  528,  540;  Gt.  W. 
Ky.  Co.  v.  Willis,  L.  J.  34  C.  P.  195-,  a.  c.  18  C.  B.  N.  S.  748. 

*  Dickerson  v.  Seelye,  12  Barb.  99.  Against  such  a  holder,  fraud,  Ac.  must  bo 
shown.  Backus  v.  Marengo,  6  McLean,  487.  Compare  Byrne  v.  Weeks,  7  Bo3W. 
372,  4  Abb.  Ct.  App.  Dec.  appendix. 

7  Schooner  Freemnn  v.  Buckingham,  18  How.  U.  S.  192;  The  Lady  Franklin,  8 
Wall.  328 ;  Sutton  v.  Kettell,  Sprague's  Decisions,  307  ;    Brown  v.  Powell  Duffryn 
Steam  Coal  Company,  L.  R.  10  C.  P.  562,  s.  c.  14  Moak's  En?.  420.     He  may  show 
that  the    thing — for    instance,  money — was  such  ss  by  uniform  usage  was  never 
received  by  him  as  a  common  carrier,  but  only  by  his  servants  on  their  own  ac- 
count (Knox  v.  Rives,  14  Ala.  249,  257);  and  that  in  this  instance  plaintiff  made  a 

Erivate  arrangement  with  the  servant,  or  gave  credit  to  him  ulone  (Farmers',  <fec. 
k.  v.  Champlain  Transp.  Co.  23  Vt.  186). 

8  See  Hale  v.  Milwaukee  Dock  Co.  29  Wis.  482,  s.  c.  9  Am.  R.  603. 

»  Wolfe  v.  Myers,  3  Sandf.  7;  Graves  v.  Harwood,  9  Barb.  477,  481.  But  th« 
proof  of  mistake  must  be  clear.  Goodrich  v.  Norris,  Abb.  Adm.  196.  The  method 
of  ascertaining  quantity,  which  was  resorted  to,  may  be  shown  to  be  such  as  to  be 
frequently  inaccurate.  Manning  v.  Hoover,  Abb.  Adm.  188. 

10  Hastings  v.  Pepper,  11  Pick.  41 ;  Nelson  v.  Woodruff,  1  Black,  156,  160;  Tarbox 


574  ACTIONS  AGAINST  BAILEES,  Ac. 

The  perils  for  which  the  carrier  is  answerable,1  depend  on  the 
express  contract,  if  any,  and  on  settled  rules  of  law  ;  and  evidence, 
if  not  competent  to  show  a  usage,  not  to  be  liable  for  a  peril  thus 
imposed.2 

46.  Contract  for  restricted  liability.'} — The  doctrine  of  the 
courts  of  the  United  States  and  those  of  some  of  the  States  is, 
that  a  common  carrier  for  hire  cannot  stipulate  for  exemption 
from  liability  for  negligence  of  himself  or  servants.8    The  doc- 
trine of  the  New  York  courts,  and  those  of  some  other  States,  is 
that  he  may,  by  express  words,  but  not  by  a  general  phrase  which 
does  not  express  negligence.4    If  the  contract  was  made  in  one 
State,  to  be  performed  in  another,  the  parties  may  be  presumed 
to  have  made  part  of  their  agreement  that  law,  which  is  most 
favorable  to  its  validity  and  performance.5 

47.  Evidence  of  shipper* s  assent ;  The  New  York  rule*] — In 
the  absence  of  fraud,  concealment  or  improper  practice,  the  legal 
presumption  is  that  stipulations  limiting  their  common-law  liabili- 
ty, contained  in  a  receipt  given  by  the  carriers,  were  known  at  the 
time  of  their  receiving  the  goods,  and  assented  to  by  the  party 
receiving  it.7    The  law  conclusively  presumes,  in  the  absence  of 
fraud  or  imposition,  that  he  read  or  was  informed  of  its  contents.8 
Showing  the  receipt  to  have  been  in  plaintiff's  possession  raises  a 
presumption  of  due  delivery  and  assent.9    Delivery  several  days 

v.  Eastern  Steamship  Co.  50  Me.  339 ;  Price  v.  Powell,  3  N.  Y.  322 ;  Ellis  v.  Wil- 
laril,  9  Id.  629. 

1  Tlie  carrier  is  not  liable  for  losses  caused  either  by :  1.  The  act  of  God.  2.  The 
public  enemy.  3.  The  inherent  defect,  quality,  or  vice  of  the  thing  carried.  4.  Its 
seizure,  in  his  hand?,  under  legal  process.  6.  An  act  or  omission  of  the  owner. 
Clear  proof,  leaving  no  reasonable  doubt  that  the  loss  was  from  an  excepted  peril, 
hns  been  said  to  be  necessary.  The  Mohler,  21  Wall.  230;  and  see  The  Newark, 
1  Blatchf.  203.  But  compare  page  495  of  this  vol. 

4  The  Schooner  Reeside,  2  Sumn.  567;  Garrison  v.  Memphis  Ins.  Co.  19  How. 
U.S.  812,  316;  Boon  v.  Steamboat  Belfast,  40  Ala.  184.  So  held,  even  as  to  a 
part  of  the  route  passing  through  a  foreign  country.  Simmons  v.  Law,  4  Abb.  Ct. 
App.  Dec.  241,  affi'g  8  Bosw.  213. 

3  R.  R.  Co.  v.  Lockwood,  17  Wall.  357 ;  Bank  of  Kentucky  v.  Adams  Express  Co. 
93  U.  S.  (3  Otto),  174;    Virginia,  <kc.  R.  R.  Co.  v.   Sayers,  26  Gratt.  328,  348,  and 
cases  cited. 

4  Magnin  v.  Dinsmore,  56  N.  Y.  168;    Farnham  v.  Camden,  <fec.  Transp.  Co.  55 
Penn.  St.  53. 

6  Talbott  v.  Merchants'  Despatch  Transp.  Co.  41  Iowa,  247,  s.  c.  20  Am.  R.  589. 

6  The  question,  which  of  these  conflicting  rules  shall  apply,  does  not  depend  on  the 
law  of  the  place  of  contract,  but  on  the  law  of  the  forum.     Hoadley  v.  Northern 
Transp.  Co.  115  Mass.  304,  s.  c.  15  Am.  R.  106. 

7  Belger  v.  Dinsmore,  61  N.  Y.  166;    s.  p.  in  case  of  passenger  and  baggage, 
Steers  v.  Liverpool,  <fec.  St.  Co.  57  Id.  1 ;    Mulligan  v.  Illinois  Central  Ry.  Co    86 
Iowa,  181,  s.  c.  14  Am.  R.  614;    Rose.  N.  P.  594.      Otherwise  of  a  mere  check  or 
token,  as  distinguished  from  a  contract.     Blossom  v.  Dodd,  43  N.  Y.  264.     To  avoid 
the  effect  of  a  limited  liability  clause,  on  the  ground  that  the  bill  of  lading  was  given 
to  agents  who  had  no  authority  to  contract  for  exemption,  it  must  nppear  that  the 
carriers  had  notice  that  the  shippers  were  agents  when  contracting.     York  Co.  v. 
Central  R.  R.  Co.  3  Wall.  107.     As  to  connecting  lines,  see  Irwin  v.  N.  Y.  Central  R. 
R.  Co.  59  N.  Y.  653,  affi'g  1  Supm.  Ct.  (T.  <fc  C.)  473. 

8  Grace  v.  Adams,  100  Mass.  505,  s.  c.  1  Am.  R.  131. 

9  Booman  v.  Am.  Express  Co.  21  \Vis.  158.     Under  the  Massachusetts  interpre- 
tation of  the  rule,  the  presumption  of  assent  may  be  rebutted  by  showinj  that  the 


COMMON  CARRIERS  OF  GOODS.  575 

after  receipt  of  goods  is  not  conclusive  evidence  of  assent,1  but 
may  be  made  so  by  proving  the  uniform  cause  of  dealing.2 

48.  —  the  Illinois  Rulel\ — The  Illinois  rule,  on  the  contrary, 
is  that  there  is  no  legal  presumption  that  such  restrictions,  al- 
though contained  in  a  formal  bill  of  lading,  were  assented  to  by 
the  shipper,  even  if  his  usage  of  accepting  similar  bills  is  shown. 
The  evidence  must  justify  the  finding  of  knowledge  and  assent.3 
The  burden  is  on  the  carrier  to  satisfy  the  jury  of  such  a  con- 
tract,4 and  for  this  purpose  all  the  circumstances  attending  the 
giving  the  receipt  are  competent.5 

49.  Fraud  as  to  valueJ] — The  carrier  may  show  a  concealment 
of  the  value,  and  its  exceeding  the  $50  limit.6     There  is  no  pre- 
sumption that  the  carrier  has  knowledge  of  the  contents  without 
evidence   of   circumstances   tending  to   show  it.7     A   direction 
marked  on  the  package,  0.  O.  D.  a  sum  considerably  in  excess  of 
the  $50  limit,  is  notice  to  the  carrier  that  the  value  exceeded  that 
limit.8    The  shipper's  admission  that  the  packages  were  disguised 
with  the  intent  that  no  one  should  suspect  they  contained  any- 
thing valuable,  is  evidence  of  fraud.9    Fraudulent  concealment 
being  shown,  plaintiif  must  show  gross  negligence,  sucli  as  would 
be  reprehensible  had  the  value  been  less  than  the  limit.10 

bill  or  receipt  was  not  accepted  by  plaintiff.  For  instance,  it  may  be  shown  that  the 
usual  course  of  business  between  the  parties  was  not  to  make  out  a,  receipt,  and  that, 
in  the  transaction  in  question,  the  goods  were  delivered  for  plaintiff  to  defendant  by 
a  casual  favor  of  a  stranger,  who  was  not  authorized  to  make  a  contract  (Buckland 
v.  Adams,  97  Mass.  124  ;  8.  P.  100  Id.  505  ;  compare  S'mmet  v.  Kat'l  Express  Co.  66 
Barb.  284) ;  or  that  the  u^ual  course  of  dealing  wns  not  to  make  a  receipt,  and  that 
the  receipt  in  question  could  not  be  read  intelligibly,  by  reason  of  the  stamp  on  it 
(Perry  v.  Thompson,  98  Mass.  249,  s.  P.  100  Id.  6>io);  or  that  a  verbal  contract  with- 
out limit  was  made,  and  that  tho  receipt  was  afterward  given  to  a  clerk  who  had  no 
authority  to  make  a  contract  (Fillebrown  v.  Grand  Trunk  11  w.  55  Me.  462 ;  s.  p.  100 
Mass.  605). 

But  it  has  been  recently  held  that  he  should  show  that,  as  soon  as  he  had  time  to 
ascertain  its  contents,  he  returned  it  to  the  carrier  with  notice  of  his  non-acceptance. 
Louisville,  <fec.  R.  11.  Co.  v.  Brownlee,  14  Bush,  8.  c.  8  Ucp.  144. 

1  Bostwiek  v.  Bait.  &  O.  R.  R.  Co.  45  N.  Y.  712 ;  Strohn  v.  Detroit  <fc  M.  R.  Co. 
21  Wis.  554.  Whether  a  parol  agreement  for  transportation  is  merged  by  the  car- 
rier's subsequent  delivery  of  the  receipt,  without  assent  by  the  shipper,  compare 
Germania  Fire  Ins.  Co.  v.  Memphis, '<fec.  R.  R.  Co.  7  Hun,  233;  Hill  v.  Syracuse,  <kc. 
R.  R.  8  Hun,  296. 

3  Shulton  v.  Merchants'  Despatch  Co.  59  N.  Y.  258,  rev'g  36  Super.  Ct.  (J.  <fe  S.) 
627. 

*  8  Cent.  L.  J.  291 ;  Erie  <fc  Western  Tr.  Co.  v.  Dater,  Jan.  1S79. 

*  Adams  Express  Co.  v.  Stettaners,  61  111.  184,  s.  c.  14  Am.  R.  67 ;  Kin"  v.  Wood- 
bridge,  34  V>,  465. 

6  Boscowitz  v.  Adams  Express  Co.  5  Cent.  L.  J.  58,  and  cases  cited. 

6  Ma^nin  v.  Dinsmorc,  42  N.  Y.  Super.  Ct.  (J.  «fe  S.)  612;  Boscowitz  v.  Adams 
Express  Co.  5  Cent.  L.  J.  68;  Little  v.  Boston  <t  Me.  R.  R.  Co.  4  Law  <fc  Eq.  R.  13«; 
Le  Beau  v.  Gen.  Steam  Nav.  Co.  L.  R.  8  C.  P.  96,  s.  c.  4  Moak's  Eng.  350 ;  Oppon- 
heimer  v.  U.  S.  Express  Co.  09  111.  62,  P.  c.  18  Am.  R.  596. 

1  The  Kitro-Glycerine  Case,  15  Wall.  536. 

8  Van  Winkle  v.  Adams  Express  Co.  3  Robt.  59. 

'  Warner  v.  Wes'ern  Transp.  Co.  6  Robt.  490.     So  ia  silence.     Magnin  v.  Dins* 
more  (abovr-).     Contra,  Little  v.  Boston  <fe  Me.  R.  R.  Co.  (above). 
10  See  Redf.  on  Rw.  273,  §  133  (10,  11). 


576  ACTIONS  AGAINST  BAILEES,  Ac, 

50.  Limited  liability  under  the  act  of  Congress.1] — This  is  not 
available,  except  in  actions  in  the  courts  of  the  United  States, 
under  the  statute.     To  take  a  case  out  of  the  statute,  an  express 
contract  should  be  proved ;  local  usage  is  not  competent.2    In- 
jury by  escape  of  steam,  throws  on  defendant  the  burden  of  dis- 
proving negligence.3 

51.  Carrier  J  delivery  •   Notice  to  consignees.'] — The  peculiar 
terms  of  the  bill  of  lading  are  important  on  the  question,  what 
constitutes  delivery.4    Where  a  bill  of  lading  requires  delivery 
at  a  specified  station  (the  carriers'  terminus),  but  without  saying 
what  is  to  be  done,  parol  evidence  is  admissible  to  show  that 
plaintiff  gave  directions  as  to  delivering  the  goods  to  the  suc- 
ceeding carrier,  and  that  he  had  been  accustomed  to  give,  and 
the  defendant  to  comply  with,   similar  instructions.5     "When 
defendants  are  one  of  the  earlier  of  several  connecting  lines, 
entries  in  their  books  showing  that  the  goods  reached  their  ter- 
minus where,  in  the  usual  course  of  business,  they  would  have 
been  forwarded,  are  not,  alone,  enough  to  show  delivery.6    The 
receipt,  given  by  the  next  line  to  which  they  delivered  the  goods, 
is  not  evidence  that  the  delivery  was  in  good  condition,7  but 
may  be  competent  as  auxiliary  to  the  testimony  of  a  witness  con- 
nected with  it,  who  examined  the  goods. 

Local  usage  and  custom,  if  reasonable,  and  known  to  the 
customer,  or  so  generally  known  as  to  be  presumably  known  to 
him,8  may  be  proved,  to  show  what  amounts  to  a  delivery  which 
terminates  the  carriers'  duty,9  provided  they  do  not  contradict 
the  instrument.10 

Misdelivery  may  be  excused  by  evidence  of  misdirection,11  or 
by  evidence  that  the  receiver  was  authorized  to  receive,  though 
his  authority  was  unknown  to  defendant  at  the  time.12  The  fact 


I  TJ.  S.  R.  S.  827,  §§  4283-4287 ;  13  Wall.  104;  Baird  v.  Daly,  57  N.  Y.  242. 
5  Walker  v.  The  Transportation  Co.  3  Wall.  150. 

8  New  World  v.  King,  16  How.  U.  S.  469. 

*  Compare  Collins  v.  Burns,  63  N.  Y.  1,  affi'g  36  Super.  Ct.  (J.  &  S.)  518;  The 
Santee,  7  Blatchf.  186,  affi'g  2  Ben.  518;  Gleadell  v.  Thompson,  56  N.  Y.  194,  affi'g 
85  Super.  Ct.  (J.  &  S.)  232. 

5  Hooper  v.  Chicago  &  Northwestern  R.  R.  Co.  27  "Wis.  81,  s.  c.  9  Am.  R.  439. 
Compare  Hinckley  v.  N.  Y.  Central,  Ac.  R.  R.  Co.  F,6  N.  Y.  429.     These  faits  being 
proved,  the  defendant's  liability  as  carrier  must  be  deemed  to  contiuue  until  such 
delivery  to  the  succeeding  carrier.     Id. 

6  Root  v.   Great  Western  Ry.  Co.  55  N.  Y.  636,  affi'g  65  Barb.   619,   s.  c.  1 
Supm.  Ct.  (T.   A  C.)  10.     What  circumstances  amount  to  evidence  of   completed 
delivery  by  one  company  to  connecting  company, — see  J'ratt  v.  Railway  Co.  95  U.  S. 
(5  Otto),  43. 

1  Hunt  v.  Michigan  S.  A  N.  Indiana  R.  R.  Co.  37  N.  Y.  162,  8.  c.  35  How.  Pr.  287. 

8  McMasters  v.  Pennsylvania  R.  R.  Co.  69  Penn.  St.  374,  s.  c.  8  Am.  R.  264. 

9  Edw.  on  B.  §  288;  Angle  v.  Miss.  Ac.  R.  R.  Co.  9  Iowa,  487,  494.     The  carrier 
may  show  a  local  usage  that  the  unloading  apparatus  shall  be  furnished  by  the  con- 
signee, and  that  it  was  so  furnished,  and  the  injury  was  caused  by  a  latent  defect  in 
such  apparatus.    Loveland  v.  Burke,  120  Mass.  139,  a.  c.  21  Am.  R.  607. 

10  Hinckley  v.  N.  Y.  C.  A  H.  R.  R.  R.  Co.  56  N.  Y.  429. 

II  Lake  Shore,  Ac.  R.  R.  Co.  v.  Hodoff,  Sup.  Ct.  Penn. 
13  Angle  T.  Mississippi,  Ac.  R.  R.  Co.  9  Iowa,  487,  501. 


COMMON   CARRIERS  OF  PASSENGERS  AND  BAGGAGE.        577 

that  after  wrongful  delivery,  the  receiver  obtained  title,  is  com- 
petent, and  reduces  the  damages  to  a  nominal  sum.1 

Evidence  that  defendants  usual  course  of  business  was  to 
send  notice,  is  not  sufficient  evidence  of  notice.2  Evidence  of  a 
usual  course  of  business  of  both  parties  dispensing  with  notice,  is 
competent.8 

The  defendants  may  prove  that  the  uniform  usage  and  course 
of  their  business,  was  to  leave  goods  at  their  usual  stopping  places 
in  the  towns  to  which  the  goods  are  directed,  without  notice  to 
the  consignee ;  and  if  such  usage  be  shown  of  so  long  continu- 
ance, uniformity  and  notoriety,  as  to  justify  a  jury  to  find  that  it 
was  known  to  the  plaintiff,  compliance  with  it  is  a  sufficient  de- 
livery.4 

52.  "Act  of  God":  Inevitable  accident.] — The  carrier  is 
exonerated,  if  it  appear  that  the  loss  was  caused  directly  and 
exclusively  by  such  a  direct,  and  violent,  and  sudden,  and  irre- 
sistible, act  of  nature  as  he  could  not,  by  any  reasonable  amount 
of  ability,  foresee  would  happen ;  or  (if  he  could  foresee  that  it 
would  happen),  could  not,  by  any  reasonable  amount  of  care  and 
skill,  resist  so  as  to  prevent  its  effect.5  On  the  question  of  the 
necessity  and  good  faith  of  a  sale  of  perishing  cargo,  at  an  inter- 
mediate port,  evidence  of  the  advice  of  competent  and  disin- 
terested men,  taken  and  acted  on  by  the  master,  is  competent.0 
On  the  necessity  of  a  jettison,  a  seaman  of  experience,  who 
witnessed  the  storm,  may  testify  to  his  opinion.7 


IV.  ACTIONS  AGAINST   COMMON   CARRIERS  8  OF  PASSENGERS  AND 

BAGGAGE. 

53.  Plaintiff  a  passenger. ~] — If  the  action  is  on  contract  to 
carry  for  hire,  proof  of  negligence,  without  contract,  is  a  vari- 
ance,9 and  will  prevent  a  recovery  for  loss  of  baggage,  at  least,10 
unless  cured  by  amendment.  It  being  shown  that  plaintiff  was 
a  common  carrier  of  passengers,  the  fact  that  plaintiff  was  on  his 
vehicle  or  vessel  in  course  of  transportation,  is  prima  facie  evi- 
dence that  he  was  there  as  a  passenger,  having  paid,  or  liable  to 


1  Hiort  v.  London  <fe  N.  W.  Ry.  Co.  40  Law  Times  N.  S.  674. 

»  Stephenson  v.  U.  S.  Express  Co.  21  Wis.  405. 

1  Wood  v.  Milwaukee  <fc  St.  Paul  Ry.  Co.  27  Wis.  541,  8.  c.  9  Am.  R.  465. 

4  Gibson  v.  Brown,  17  Wend.  305 ;  McMaaters  v.  Penn.  R.  R.  Co.  69  Penn.  St. 
874,  8.  o.  8  Am.  R.  264. 

8  See  Nugent  v.  Smith  (above),  4  So.  Law  Rev.  N.  S.  451,  and  cases  cited.  And 
Bee  Bellv.  Reed,  4  Binn.  127. 

•  Butler  v.  Murray,  80  N.  Y.  88. 

7  Price  v.  Hartshorn,  44  N.  Y.  94,  affi'g  44  Barb.  646. 

8  As  to  private  carriers  see  12  Wall.  878. 

»  Nolton  v.  Western  R.  R.  Co.  15  N.  Y.  446. 
10  Flint,  <fcc.  R.  R.  Co.  v.  Weir,  37  Mich.  Ill, 

87 


578  ACTIONS  AGAINST  BAILEES,  Ac. 

pay,  fare  ;  *  and  this  suffices  to  throw  on  the  carrier  the  burden 
of  disproving  the  contract  or  undertaking  to  carry.2  A  witness 
may,  in  the  nrst  instance,  testify  directly  to  the  fact  that  plaintiff 
was  a  passenger,  subject,  of  course,  to  cross-examination  as  to 
details ;  but  the  details  having  been  stated,  the  witness  cannot 

five  an  opinion  as  to  whether  he  was  a  passenger  or  trespasser, 
vidence  of  any  circumstances  tending  to  show  the  existence  of 
the  contract  or  undertaking,  is  competent :  such  as  the  payment 
of  fare,8  the  possession  of  ticket,  or  of  baggage  check ; 4  with  evi- 
dence of  the  custom  of  defendants  as  to  giving  such  checks ;  or 
production  of  the  passenger  list.5  Where  an  authenticated  list, 
made  by  defendants  pursuant  to  law,  exists,  it  is  not  the  ex- 
clusive evidence,  and  defendants  must  produce  it  if  they  re- 
quire it.6 

The  fact  that  plaintiff  was  carried  on  an  apparently  gratui- 
tous pass  or  permission,  may  be  explained  by  evidence  of  the  con- 
tract* or  usage8  under  which  it  was  given. 

54.  Express  contract ;  Ticket.'] — Possession  of  an  unmutilated 
railroad  passage-ticket,  is  presumptive  evidence  that  the  holder 
has  paid  the  regular  price  for  it,  and  is  entitled  to  be  transported 
according  to  its  terms,  and  that  it  has  not  been  used.9  It  is  pre- 
sumed to  have  been  purchased  at  some  time  on  the  day  on  which 
it  bears  date,  but  not  at  any  particular  hour  of  the  day.10  A 
ticket  agent  is  not  presumed  to  have  power  to  bind  the  company 
by  an  oral  promise  that  the  ticket  should  be  good  at  a  later 
date.11  To  sustain  such  a  promise,  made  after  the  sale  of  the 
ticket,  a  consideration  must  be  shown.12  Plaintiff's  omission  to 
procure  a  ticket  before  entering  the  cars  may  be  explained  by  ev- 
idence that  he  applied  in  vain  for  one  ;  and  the  testimony  of  the 
ticket  agent  is  competent  for  this  purpose.13 

If  there  were  several  connecting  lines,  plaintiff,  seeking  to 
charge  another  than  the  one  whose  default  caused  the  breach, 


I  Buffit  v.  Troy,  Ac.  R.  R.  Co.  36  Barb.  420,  423 ;    even  though  he  was  in  a 
freight  car.     Dunn  v.  Grand  Trunk  Ry.  Co.  58  Me.  187,  s.  c.  4  Am.  K.  267.     But 
compare  Eaton  v.  Delaware,  Ac.  R.  R.  Co.  67  N.  Y.  382. 

*  Dunn  v.  Grand  Trunk  Ry.  Co.  (above). 

3  Muscogee  R.  R.  Co.  v.  Redd,  64  Georgia,  33. 

4  Davis  v.  Caynga  A  Susq.  R.  R.  Co.  10  How.  Pr.  330. 

•  Merrill  v.  Grinnell,  30  N.  Y.  694. 
•Id. 

'  Grand  Trunk  R.  W.  v.  Stevens,  6  Reporter,  161. 

8  The  New  World  v.  King,  16  How.  U.  S.  469. 

9  Pier  v.  Finch,  24  Barb.  614.     Compare  paragraph,  61.     "Where  the  ticket  and 
check  indicate  another  route  than  defendants',  evidence  that  defendants  frequently 
carried  baggage  bearing  such  checks,  is  not  sufficient  to  charge  them.     Fairfax  v.  N. 
Y.  Central,  Ac.  Co.  40  Super.  Ct.  (J.  A  S  )  128. 

10  Id. 

II  Boice  v.  Hudson  River  R.  R.  Co.  61  Barb.  611 ;   especiallv  a  way  agent  on  a 
through  route.     McClure  v.  Phila.  Ac.  R.  R.  Co.  34  Md.  632,  s.  c.  6  Am.  R.  346. 

14  Boice  v.  Hudson  River  R.  R.  Co.  (above). 

11  St.  Louis,  Ac,  R.  R.  Co.  v.  Dalby,  19  DL  353,  363. 


COMMON  CARRIERS  OF  PASSENGERS  AND  BAGGAGE.        579 

must  show  either  a  contract  by  the  company  he  seeks  to  charge, 
or  that  it  had  some  community  of  interest  in,  or  control  over,  the 
carriage  of  passengers  by  the  one  in  default.1  Proof  that  the  de- 
fendants checked  his  baggage  to  the  terminus  of  the  connecting 
line,  without  evidence  that  he  paid  them  his  fare  for  passage  by 
that  line,  is  not  alone  enough  to  charge  them  for  a  loss  on  that 
line.2  Although  several  tickets  were  given  for  the  separate  parts  of 
the  route,  an  entire  contract  to  carry  over  the  whole  route  may 
be  proved  by  parol.8  In  the  absence  of  all  evidence  on  the  subject, 
except  such  as  may  be  inferred  from  the  delivery  of  coupon 
tickets  to  the  passenger,  the  presumption  is  that  the  carrier  who 
sells  the  ticket  and  coupons  has  purchased  of  the  connecting  roads 
such  coupons  or  the  right  to  issue  them,  and  that  they  were  delivered 
in  part  performance  of  a  contract  of  the  carrier  selling  the  ticket.4 

55.  Authority  of  agency.'] — The  fact  that  the  ticket,  and  the 
baggage  check  obtained  of  the  same  agency,  were  issued  by  a  per- 
son liaving  authority,  may  be  proved  by  evidence  that  the  ticket 
was  presented  by  the  passenger,  to  the  conductor,  on  the  cars  of  the 
company  sought  to  be  charged,  and  recognized  by  him  as  valid.5 

56.  Baggage.'] — On  the  question  what  is  within  the  rule  as  to 
baggage,  evidence  of  the  circumstances  and  position  in  life  of  the 
passenger,  of  the  whole  contemplated  journey,  and  of  intended 
sojourns  on  the  way,  is  competent.6     ]?laintin  is  not  precluded 
from  recovering,  because  he  may  not  be  able  to  furnish  very  de- 
tailed evidence  of  every  item  of  contents.7    Testimony  of  a  wit- 
ness, who  saw  the  trunk  packed  weeks  before,  may  be  enough  to 
go  to  the  jury.8     The  law  only  requires  the  best  evidence  in  his 
power. 

Evidence  that  it  was  defendants'  custom  to  check  baggage  on 
the  passenger  showing  his  ticket,  together  with  the  -production 
and  identification  of  the  check,  is  prima  facie  evidence  of  a  deliv- 
ery of  the  baggage.9  Notice  to  the  baggage  master,  that  the  trunks 
contained  other  than  the  passenger's  oaggage,  may  be  inferred  by 
the  jury  from  circumstances,  such  as  indication  that  the  passen- 


1  Green  v.  N.  Y.  Central  R.  R.  Co.  12  Abb.  Pr.  N.  S.  473 ;  see  paragraphs  21,  28, 
85.  Compare,  Wilde  v.  Northern  R.  R.  Co.  63  N.  Y.  166;  Milnorv.  N.  Y.  &  New 
Haven  R.  R.  Co.  63  N.  Y.  363. 

9  Id.     Kessler  v.  N.  Y.  Central  R.  R.  Co.  7  Lans.  62. 

*  Van  Buskirk  v.  Roberts,  81  N.  Y.  661. 

4  Kessler  v.  N.  Y.  C.  R.  R.  Co.  7  Lans.  62. 

5  Chicago  <fc  Rock  Island  R.  R.  Co.  v.  Fahey,  62  111.  81,  8.  c.  4  Am.  R.  687.    Com- 
pare  Mills  v.  Shult,  2  E.  D.  8mith,  139;  Quimby  v.  Vanderbilt,  17  N.  Y.  306. 

•  See  Merrill  v.  Grinnell,  80  N.  Y.  694;  Abb.  N.  Y.  Dig.  new  ed.  tit  Carrier. 

7  Butler  v.  Busing,  2  C.  <fe  P.  618,  614. 

8  Sugg  v.  Memphis  <fc  St.  L.  Packet  Co.  40  Mo.  442,  444. 

9  Edw.  on  B.  §  674.     As  to  the  appropriate  evidence  in  case  of  baggage  not 
checked,  see  Gleason  v.  Goodrich  Transp.  Co.  32  Wis.  86,  8.  o.  14  Am.  R.  716; 
Berghum  v.  Great  Eastern  Ry.  Co.  38  L.  T.  R.  N.  S.  160 ;  17  Alb.  L.  J.  298 ;  Welch 
v.  Pullman  Pal.  Car  Co.  16  Abb.  Pr.  N.  S.  862. 


580  ACTIONS  AGAINST  BAILEES,  Ac. 

,ger  was  a  traveling  salesman,  that  the  trunks  were  not  ordinary 
traveling  trunks,  <KC.,  and  that  an  extra  charge  was  made.1 

Upon  a  through  ticket  and  check,  an  intermediate  or  ultimate 
company  may  be  held  liable,  if  there  is  evidence  that  the  baggage 
came  to  their  hands  and  was  lost  by  them.2 

57.  —  loss  or  non-delivery?] — Evidence  that  plaintiffs  baggage 
was  lost  on  the  journey  on  defendants'  route,  is  sufficient  to  throw 
the  burden  of  proof  on  the  defendants,  and  dispenses  with  proof 
of  a  demand  and  refusal.4    If  there  is  evidence  of  negligence  on 
defendants'  part,  accounting  for  the  loss,  mere  evidence  of  the 
course  of  business,  according  to  which  the  baggage  should  have 
been  duly  delivered  to  the  next  connecting  line,  is  not  enough  to 
exonerate  defendants.5 

58.  Negligence.'] — The  mode  of  proving  negligence  is  stated 
in  the  chapter  on  actions  for  negligence.6 

59.  Authority  of  servant.'] — The  fact  that  one  assuming  to 
act  as  a  servant  of  the  company  was  such,  may  be  inferred  from 
evidence  of  his  position,  conduct,  or  dress,  &c.,  as  such.7    If  he 
is  shown  to  have  been  in  charge  of  a  car,  his  authority  to  remove 
trespassers  may  be  inferred  by  the  jury,  although  the  rules  are 
silent.8    If  an  assault  and  expulsion  by  defendants'  servants  is 
proved,  the  burden  of  justifying  it  is  on  defendants.9    Abusive 
language,  not  part  of  the  res  gestce,  is  not  competent.10 

60.  Damages.] — In  addition  to  the  damages  for  personal  in- 
jury,11 plaintiff  may  recover  for  lost  time  by  neglect  to  transport, 
even  without  specific  evidence  of  the  value  of  his  time.12    Evi- 
dence of  exposure  by  the  delay,  and  consequent  illness,  is  compe- 
tent.13   Opinions  of  witnesses  are  not  generally  competent  evi- 
dence of  the  value  of  his  time.14    If  he  seeks  to  recover  for  the 
defeating  qf  a  particular  errand,  he  must  produce  some  evidence 
that  if  he  had  arrived  at  the  appointed  time  he  might  have  done 
his  errand  and  would  have  promptly  returned,  and  that  he  could 
not,  with  due  effort,  accomplish  his  errand  by  reason  of  his  delay 
in  arriving.15 


1  Sloman  v.  Great  Western  Ry.  Co.  67  N.  Y.  208,  rev'g  6  Hun,  646. 
5  Chicago  &  Rock  Island  R.  R.  Co.  v.  Fahey,  62  111.  81,  s.  o.  4  Am.  R.  587.     Com- 
pare  paragraphs  35  and  36. 

3  See  Paragraphs  6  and  36. 

4  Garvey  v.  Camden  &  Amboy  R.  R.  Co.  1  Hilt.  280,  s.  c.  4  Abb.  Pr.  171. 

5  Baltimore,  Ac.  Co.  v.  Smith,  23  Md.  402. 

6  Page  582  of  this  voL     See,  also,  paragraphs  6  and  34-39  of  this  chapter. 

7  Page  41,  note  3. 

8  Bayley  v.  Manchester,  Sheffield,  &c.  Ry.  Co.  L.  R.  7  C.  P.  415,  s.  c.  3  Moak'a 
Eng.  308. 

9  St.  John  v.  Eastern  R.  R.  Co.  1  Allen,  544. 

10  Hamilton  v.  N.  Y.  Central  R.JI.  Co.  51  N.  Y.  100. 

11  See  chapter  oh  NEGLIGENCE. 

14  Ward  v.  Vanderbilt,  4  Abb.  Ct.  App.  Dec.  621. 

13  Williams  v.  Vanderbilt,  28  N.  Y.  217,  affi'g  29  Barb.  491. 

14  Hastings  v.  Uncle  Sam,  10  Cal.  341 ;  Lincoln  v.   Saratoga,  <fcc.  R.  R.  Co.  23 
Wend.  425.    Compare  p.  368  of  this  vol. 

w  Benson  v.  New  Jersey  R.  R.  <fc  Transp.  Co.  9  Bosw.  412. 


COMMON  CARRIERS  OF  PASSENGERS  AND  BAGGAGE.   581 

If  there  was  no  express  stipulation  to  carr j*  on  time,1  evidence 
that  defendant  did  all  that  was  reasonably  practicable,  is  compe- 
tent in  excuse  for  delay.2 

61.  Defenses  :   Restrictions  of  liability  j  Extrinsic  evidence 
to  vary  ticket.'}  —In  determining  whether  a  printed  condition  on 
a  ticket,  &c.,  limiting  a  carrier's  liability,  was  sufficient  notice  to 
the  plaintiif,  the  question  is  whether  the  condition  was  so  exhib- 
ited as  to  make  its  non-notice  negligent.3    Ordinary  tickets,  which 
do  not  purport  to  be  contracts,  are  not  within  the  rule  excluding 
parol  evidence  to  vary  a  writing.4    Such  evidence  is,  therefore, 
admissible  to  show  the  nature  of  the  agreement  entered  into  be- 
tween the  carrier  and  the  passenger,  at  the  time  of  issuing  them.5 
The  reasonable  regulations  of  the  company,  consistent  with  the 
terms  expressed  on  the  ticket,  may  be  proved  in  its  favor ;  and 
the  company  is  not  bound  to  prove  notice  of  these  regulations  to 
the  holder  of  the  ticket.6    Evidence  of  a  usage  of  the  subordi- 
nates, in  violation  of  such  a  regulation,  is  not  competent  against 
the  company,  unless  notice  of  it  to  the  governing  officers  is  shown.7 
If  the  terms  were  sufficiently  displayed  or  actually  communicated, 
the  ticket  is  the  evidence  of  the  contract.8 

62.  Contributory  negligence.'] — If  it  appear  that  plaintiff  was 
riding  in  a  place  of  hazard  in  the  car  or  train,  the  burden  is  upon 
him  to  disprove  negligence.9    This  may  be  done  by  evidence  that 
he  could  get  no  safer  place,  but  not  by  evidence  that  those  in 
charge  suffered  him  to  remain  in  a  place  he  knew  to  be  danger- 
ous.1"   If  defendants  object,  that  plaintiff  brought  the  injury  on 
himself  by  leaping  from  the  vehicle,  he  may  prove  that  others 
did  so,  and  also  their  declarations  in  the  act.11 


I  Rose  N.  P.  615. 

8  Gordon  v.  Manchester,  Ac.  R.  R.  Co.  52  N.  H.  696,  8.  c.  13  Am.  R.  97. 
3  Wharton  on  Neg.  §  587,  2d  ed.,  citing  Elmore  v.  Sands,  64  N.  Y.  512 ;  Evans- 
ville,  Ac.  R.  R.  v.  Andruscoggin  Mills,  22  WalL  694.  Compare  Rawson  v.  Pennsyl- 
vania R.  R.  Co.  48  N.  Y.  212,  affi'g  2  Abb.  Pr.  N.  S.  220;  Wilson  v.  Chesapeake,  Ac. 
R.  R.  Co.  21  Gratt.  654.  672;  Dietrich  v.  Pennsylvania,  Ac.  R.  R.  Co.  71  Penn.  St. 
432,  s.  c.  10  Am.  R.  711 ;  Henderson  v.  Stevenson,  L.  R.  2  Sc.  App.  470,  s.  c.  18 
Moato  Eng.  141 ;  and  Stewart  v.  N.  W.  Ry.  Co.  3  H.  A  C.  135.  Whether  the  receipt 
of  a  ticket  for  deposit  of  luggage  is  prima  facie  evidence  of  assent  to  the  special  con- 
ditions printed  on  it,  see  Harris  v.  Great  Western  Ry.  Co.  1  Queen's  Bench  Div.  615, 
s.  c.  17  Moak's  Eng.  156;  Parker  v.  Southeastern  Ry.  Co.  1  C.  P.  Div.  618,  s.  c.  18 
Moak's  Eng.  238.  Special  limited  receipt  delivered  sometime  after  transaction,  and 
in  answer  to  demand,  not  deemed  contract  without  evidence  of  assent.  Willner  T. 
Morrell,  40  Super.  Ct.  (J.  &  S.)  222. 

Quimby  v.  Vanderbilt,  17  N.  Y.  306. 

Id. ;  Van  Buskirk  v.  Roberts,  31  Id.  661. 

Dietrich  v.  Pennsylvania  R.  R.  Co.  71  Penn.  St.  432,  e.  c.  10  Am.  R.  711;  John- 
v.  Concord,  Ac.  R.  R.  Co.  46  N.  H.  213,  220. 

Id. 

Barker  v.  Coffin,  31  Barb.  656;  Boice  v.  Hudson  River  R.  R.  Co.  61  Id.  611. 

Ward  v.  Central  Park.  Ac.   R.  R.  Co.  11   Abb.  Pr.  N.  S.  411,  s.  o.  42  How.  Pr. 
289.     There  is  no  presumption  that  an  engineer  has  authority  to  allow  riding  on  the 
engine,  contrary  to  rule.     Robertson  v.  N.  Y.  A  Erie  R.  R.  Co.  22  Barb.  01. 
'«  Ward  v.  Central  R.  R.  (above). 

II  Mobile  R.  R.  v.  Ashcroft,  48  Ala.  15,  31. 


CHAPTEE  XXXI. 


ACTIONS  FOR  NEGLIGENCE. 


L  GENERAL 

1.  Burden  of  proof. 

2.  The  pleading. 

8.  Elements  of  direct  proof. 
4.  Degrees  of  negligence. 
6.  Privity. 

6.  The  casualty  as  evidence  of  neg- 

ligence. 

7.  Other  negligences. 

8.  Time  of  existence  of  defect. 

9.  Other  defects. 

10.  Incompetency. 

11.  Reputation. 

12.  Intemperance. 

13.  Opinions  of  witnesses. 

14.  Declarations  and  admissions  gen- 

erally. 

15.  Plaintiff's  declarations. 

16.  Defendant's  admissions,  declara- 

tions, and  conduct. 

17.  Those  of  agents  and  servants. 

18.  — of  third  person  injured. 

19.  — of  strangers. 

20.  Violation  of  statute. 

21.  — of  municipal  ordinance. 

22.  —of  usage. 

23.  Ownership  of  the  thing  injuring. 

24.  Connection  of  cause  with  injury. 

25.  Notice  of  defect ;  request. 

26.  The  delinquent  an  agent  or  serv- 

ant of  defendant. 

27.  Contractor  or  servant. 

28.  Common  employment. 

29.  Negligent  employment  of  unfit 

servant. 
SO.  Plaintiff's  title. 


L  GENERAL  RULES — continued. 

31.  Manner  of  injury. 

82.  Condition  of  person  or  thing  in- 
jured. 

33.  Burden  of  proof  as  to  contribu- 
tory negligence. 

84.  — the  United  >tates  court  rule. 

85.  — the  Massachusetts  rule. 

86.  — the  New  York  rule. 

87.  Disproving    contributory  negli- 

gence. 

88.  Contributory  negligence   of   in- 

fants. 

39.  Effect  of  peril  on  witnesses. 

40.  Damages. 

41.  Loss  of  earnings. 

42.  Suffering,  and  impaired  powers. 

43.  Continuing  effect. 

44.  Testimony  ot  the  party. 

45.  Expressions  ot  suffering. 

46.  Opinions  of  witnesses. 

47.  Plaintiff's    family    and     circum- 

stances. 

48.  Defendant's  wealth. 

49.  Exemplary  damages. 

50.  Action  for  causing  death. 

II.  DEFENSES. 

51.  Disproof  of  negligence. 

52.  Advice. 

53.  Former  acquittal. 

54.  Plaintiff's    contributory     negli- 

gence. 

65.  Plaintiff's  conduct  illegal. 
56.  Mitigation. 


I.   GENERAL  RULES. 

1.  Burden  of  proof *.] — The  burden  of  proof,  that  the  injury 
resulted  from  negligence  on  the  part  of  defendant,  is  upon  the 
plaintiff.1 


1  Nitro-Glycerine  Case,  15  Wall.  524 ;  Holbrook  v.  Utica  <fe  Schenectady  R.  R.  Co. 
12  N.  Y.  236,  affi'g  16  Barb.  113;  The  Marpesia,  L.  R.  4  P.  C.  C.  212,  s.  c.  3  Moak's 
Eng.  92 ;  The  Benmore,  L.  R.  4  Ad.  <fe  EC.  132 ;  Curran  v.  Warren  Chem.  <fc  Manui 

[582] 


GENERAL  RULES.  583 

2.  The  pleading^ — Under  an  allegation  of  negligence,  a  con- 
tract  may  be  proved,  together  with  actionable  negligence,  to 
plaintiffs  injury,  in  the  acts  constituting  a  breach;1  but  a  mere 
breach  of  contract,  without  evidence  or  inference  of  negligence,  is 
a  variance.2     Under  a  general  allegation  of  negligence,  the  cir- 
cumstances constituting  it  may  be  proved,8  even  though  other 
circumstances  particularly  specified  in  the   complaint   are  un- 
proved.4 

3.  Elements  of  direct  proof."] — The  characteristic  elements  of 
evidence  in  direct  proof  of  actual  negligence  are,  1.  The  relation 
of  the  parties,  if  any,  such  as  to  raise  a  duty  on  defendant's  part 
towards  plaintiff ;  2.  The  casualty  ;  3.  What  ought  to  have  been 
done ;  4.  What  actually  was  done. 

4.  Degrees  of  negligence?^ — Whether  negligence  was  gross  or 
not  is  not  matter  of  opinion  for  a  witness,  but  a  conclusion  to  be 
drawn  by  the  court  or  jury.     It  is  to  be  established  by  evidence 
manifesting  the  nature  and  degree  of  care  which  defendant  owed, 
and  that  which  he  actually  took.     But  where  plaintiff  needs  to 
prove  gross  negligence,  it  is  best  to  express  his  offer  of  proof 
accordingly.6    Gross  negligence  may  be  proved  under  a  general 
averment  of  negligence/ 

5.  Privity  I\ — If  the  wrong  is  founded  on  breach  of  contract, 
plaintiff  must  be  a  party,  or  privy  to  the  contract.8    But  the  fact 
that  a  contract  with  a  third  person  is  proved  by  plaintiff,  does  not 
necessarily  require  him  to  show  privity.9    It  is  enough  if  the 
defendant's  contract  with  the  third  person  was  made  for  the  pur- 
pose of  accommodating  the  plaintiff.10 

6.  The  casualty  as  evidence  of  negligence.'] — The  mere  hap- 
pening of  a  casualty  is  not  sufficient  evidence  of  negligence  to  go 
to  the  jury.    But  the  nature  of  the  accident  and  the  presumptions 


Co.  36  N.  Y.  153,  s.  o.  3  Abb.  Pr.  N.  S.  240,  34  How.  Pr.  250;  Caldwell  v.  N.  J. 
Steamboat  Co.  47  N.  Y.  282,  affi'g  56  Barb.  425.  So  if  the  negligence  is  in  deliver, 
ing  a  dangerous  thing  without  giving  notice,  plaintiff  must  prove  defendant's  neglect 
to  give  notice.  "Williams  v.  East  India  Co.  3  East,  192,  198,  199 ;  Steph.  Ev.  98. 

1  See  Dean  v.  McLean,  48  Vt.  412,  s.  o.  21  Am.  R.  130. 

8  See  Putnam  v.  Kingsburv,  16  Pick.  371. 

8  Oldfield  v.  N.  Y.  &  Harlem  R.  R.  Co.  14  K  Y.  310;  Ware  v.  Gay,  11  Pick. 
106 ;  Wright  v.  Hardy.  22  Wis.  348  and  see  Indianapolis,  <fec.  R.  R.  Co.  v.  Horst, 
93  U.  S.  (3  Otto),  291,*297. 

4  Edgerton  v.  N.  Y.  <fe  Harlem  R.  R.  Co.  89  N".  Y.  227,  affi'g  35  Barb.  198,  889. 
At  common  law,  nn  agent's  negligence  could  not  be  proved  under  au  allegation  of  the 
principal's  negligence.  Dunlop  v.  Moore,  7  Cranch,  242,  269,  affi'g  1  Cranch  C.  Ct. 
636. 

*  As  to  the  controversy  on  the  question  of  degrees,  see  6  Am.  Law  Rev.  88. 

'  See  Grinnell  v.  Western  Union  Tel.  Co.  113  Mass.  299,  s.  c.  18  Am.  R.  485. 

7  Nolton  v.  Western  R.  K.  Co.  15  N.  Y.  444. 

8  Clancy  v.  Byrne,  66  N.  Y.  l-J'.t.  r<-v'g  65  Barb.  344. 

9  Baird  v.  Daly,  67  N.  Y.  236.  rev'g  4  Lans.  426. 

10  See  Congbtry  v.  Globe  Woolen  Co.  66  N.  Y.  124,  rev'g  1  Supm.  Ct  (T.  <fc  C.) 
452;  Baird  v.'  Daly,  67  N.  Y.  236,  rev'g  4  Lans.  426. 


584  ACTIONS  FOR  NEGLIGENCR 

it  raises,  may  suffice.1  Evidence  that  the  act  was  such  as,  if  done 
with  proper  care,  ordinarily  does  not  produce  damage,  will  gen- 
erally sustain  an  inference  that  it  was  negligently  done,  if  there 
is  no  evidence  to  indicate  the  manner  of  it.2  Otherwise  the  pre- 
sumption is  that  in  the  performance  of  a  lawful  act,  at  least  ordi- 
nary care  was  used.8  It  is  enough  for  plaintiff  to  raise  a  fair  pre- 
sumption of  negligence.  Probability  is  sufficient  to  go  to  the  jury.4 
Jf  defendant  had  charge  or  control  of  the  instrument  of  disaster, 
and  if  it  was  highly  dangerous,  or  if  he  owed  a  special  duty  of  care 
of  one  in  the  position  of  plaintiff,  the  disaster  is  evidence'of  neg- 
ligence, sufficient  to  go  to  the  jury,  unless  the  circumstances  indi- 
cate some  cause  consistent  with  due  care  on  defendant's  part.5 

7.  Other  negligences^ — Evidence  of  other  specific  instances 
of  negligence,  on  the  part  of  defendant  or  the  servant  whose  mis- 
conduct is  alleged,  independent  of  the  negligence  in  question,  is 
not  competent,  because  raising  a  collateral  issue.  For  the  same 
reason,  if  the  disaster  is  attributed  to  a  defect  in  structure,  evi- 
dence of  other  disasters,  attributed  to  the  same  cause,  is  not  gen- 
erally competent ; 7  and  when  admissible,  it  is  because  they  tend 
to  show  that  the  cause  was  a  dangerous  thing,8  or  that  defendant 


1  Wharton  on  Neg.  §  421 ;  citing  Scott  v.  London,  St.  Kath.  Docks,  3  H.  &  C, 
696 ;  Byrne  v.  Boadle,  2  Id.  722  ;  Mullen  v.  St.  John,  67  N.  Y.  667,  and  other  cases ; 
and  see  Terry  v.  N.  Y.  Central  R.  R.  Co.  22  Barb.  574. 

3  Sedg.  on  Darn.  592. 

8  Lansing  v.  Stone,  37  Barb.  15,  B.  c.  14  Abb.  Pr.  199. 

4  Shearm.  &  Red.  §  13.     Contra,  Sheldon  v.  Hudson  R.  R.  R.  Co.  29  Barb.  22<5. 

5  In  illustration  of  this  principle,  compare,  as  to  Being  found  dead  on  defendant's 
premises,  Lehman  v.  City  of  Brooklyn,  29  Barb.  234;  Curran  v.  Warren  Mfg.  Co.  36 
N.  Y.  153,  s.  c.  3  Abb.  Pr.  N.  S.  240;   34  How.  Pr.  260;  or  on  the  crossing  of  their 
road,  Lyndsay  v.  Conn.  Ac.  R.  R.  Co.  27  Vt.  643 ;  Johnson  v.  Hudson  River  R.  R.  Co. 
20  N.  Y.  65 ;  6  Duer.  683 ;  Waldron  v.  Rensselaer  «fe  Saratoga  R.  R.  Co.  8  Barb.  390. 
Blasting.  Ulrich  v.  McCabe,  l*Hilt.  251;  Tremain  v.  Cohoes  Co.  2  N.  Y.  163.     Ex- 
plosion. McMahon  v.  Davidson,  12  Minn.  357,  371;  Losee  v.  Buchanan,  51  N.  Y.  476, 
rev'g  61  Barb.  86;  Marshall  v.  Welwood,  9  Vroom.  N.  J.  839,  s.  c.  20  Am.  R.  3S4; 
Illinois  Cent.  R.  R.  Co.  v.  Phillips,  49  111.  234,  239.     Falling  bodies.    Muller  v.  St. 
John,  57  N.  Y.  567;    Welfare  v.  London  A  Brighton  Ry.  Co.  L.  R.  4  Q.  P>.  693; 
Kearney  v.  London,  Brighton,  Ac.  Ry.  Co.  L.  R.  5  Q.  B.  411  ;   L.  R.  6  Q.  B.  759; 
Clare  v.  Nat.  City  Bank,  1  Sweeny,  539;  Weitner  v.  Delaware  A  Hudson  Canal  Co.  4 
Robt.  234;  Kendall  Y.  City  of  Boston,  118  Mass.  234,  s.  c.  19  Am.  R.446;  Byrne  v. 
Boadle,  2  II.  A  C.  722;  Scott  v.  London,  St.  Kath.  Docks  Co.  3  Id.  596;  Jager  v. 
Adams,  123  Mass.  26.     Pire.  Lansing  v.  Stone,  37  Barb.  15.     Gas  escaping.  Shearm. 
&  Red.  on  Neg.  §  340;  Lannen  v.  Albany  Gas  L.  Co.  44  N.  Y.  459,  46  Barb.  264; 
Parry  v.  Smith,  41  L.  T.  R.  N.  S.  93. 

6  First  Nat.  Bank  of  Lyons  v.  Ocean  Nat.  Bank,  60  N.  Y.  278,  296  ;  Warner  v. 
N.  Y.  Central  R.  R.  Co.  44  N.  Y.  465,  rev'g  45  Barb.  299;    Robinson  v.  Fitchburgh, 
Ac.  R.  R.  Co.  7  Gray  (Mass.),  92,  95.     Passenger  thrown  from  horse  car  by  driver's 
suddenly  stopping.     Ma^uire  v.  Middlesex  R.  R.  Co.  115  Mass.  239;   Miss.  C.  R.  R 
Co.  T.  Miller,  40  Miss.  45,  47.     But  it  may  be  admissible  in  rebuttal  of  defendant's 
evidence  of  general  care  (Detroit,  Ac.  R.  R.  Co.  v.  Van  Steinburgh,  17  Mich.  99, 
111),  or  to  repel  an  inference  of  accident  (1  Whart.  Ev.  47,  §  38). 

'  Sherman  v.  Kortright,  52  Barb.  267;  Jacques  v.  Bridgeport,  Ac.  R.  R.  Co.  41 
Conn.  61 ;  and  see  Bailey  v.  Trumbull,  31  Conn.  681. 

8  As,  for  instance,  that  it  commonly  frightened  other  horses  than  plaintiff's. 
House  v.  Metcalf,  27  Conn.  631,  636;  Hill  v.  Portland,  Ac.  R.  R.  Co.  65  Me.  438, 
443;  Darling  v.  Westmoreland,  62  N.  H  401.  The  competency  of  such  evidence  has 
been  much  contested.  Compare  Collins  v.  Dorchester,  6  Cush.  396.  It  would  cer- 
tainly be  competent  to  prove  by  an  expert,  that  at  a  time  either  before  or  after  the 


GENERAL  RULES.  585 

had  notice  of  its  existence,1  or  proving  a  frequency  of  occurrence 
which  repels  all  inference  of  accident.2  Evidence  of  disaster  at 
another  time,  or  another  similar  place,  if  adduced,  is  not  compe- 
tent for  the  purpose  of  proving  dangerousness,  unless  it  shows 
that  all  material  conditions  were  the  same.8 

8.  Time  of  existence  of  defect.'] — Evidence  of  the  existence  of 
the  defect  to  which  plaintiff  attributes  the  disaster,  is  not  con- 
fined to  the  very  time  of  the  disaster,4  but  the  limit  of  time  de- 
pends on  the  nature  of  the  structure  and  of  the  defect.5    If  one 
party,  without  objection,  gives  evidence  overstepping  these  limits, 
the  other  may  rebut  by  similar,  but  not  greater  liberty.6 

9.  Other  defects.'] — The  mere  existence  of  defects  in  a  struc- 
ture at  other  places  than  that  where  the  casualty  occurred, — as, 
for  instance,  a  defect  in  track  half  a  mile  away  from  the  scene  of 
a  railway  wreck, — is  not  evidence  that  a  similar  defect  existed  at 
the  place  of  the  casualty,  and  caused  it.7 

10.  lncompetency.~] — Evidence   of    negligence    having    been 
given,  the  incompetency  or  unskillfulness  of  the  actor  may  be 
proved.8 

11.  Reputation^] — Evidence  of  general  reputation  for  negli- 
gence is  inadmissible  to  prove  negligence  upon  a  particular  occa- 
sion.9 

12.  Intemperance. ,] — Intoxication  is  competent,  but  not  con- 
clusive 10  evidence  of  negligence.11    Evidence  of  the  intemperate 


disaster,  when  the  defect  which  is  alleged  to  have  caused  it,  was  in  no  worse  state 
than  at  the  time  of  the  disaster,  he  examined  and  experimented  with  it,  and  found  it 
capable  of  producing  the  like  disaster ;  hence  there  seems  no  reason  for  excluding 
ordinary  experience  when  offered  within  the  same  limits  and  for  the  same  purpose. 
Such  evidence  is  sometimes  admissible  merely  to  show  what  called  the  attention  of 
witness  to  the  defect.  Tomlinson  v.  Town  of  Derby,  43  Conn.  562. 

1  Mobile.  <fec.  11.  R.  Co.  v.  Ashcraft,  48  Ala.  N.  S.  15 ;  1  Whart.  Ev.  60,  §  41. 

3  "  There  is  no  better  evidence  of  negligence  than  the  frequency  of  the  accidents." 
Mobile,  etc.  R.  R.  Co.  v.  Ashcraft,,  49  Ala.  N.  S.  305. 

»  See  Fillo  v.  Jones,  2  Abb.  Ct.  App.  Dec.  121;  Haynes  v.  Burlington,  38  Vt. 
350,  363.  Compare  Kent  v.  Lincoln,  32  Vt.  591,  597. 

*  Compare  Kline  v.  Queen's  Ins.  Co.  69  N.  Y.  614,  affi'g  7  Hun,  267 ;  Hutchinson 
V.  Methuen,  1  Allen,  33. 

5  Thus,  evidence  of  ice  on  the  sidewalk  must  be  confined  within  a  brief  period, 
for  its  formation  and  removal  are  quick ;  but  evidence  of  a  flaw  in  a  boiler  plate  may 
relate  to  the  original  m-ikin^  of  the  boiler,  though  at  a  remote  time. 

6  For  illustrations  of  this  rule,  see  Walker  v.  Westfield,  39  Vt.  246 ;  Baird  v.  Daly, 
68  N.  Y.  547;  Jacques  v.  Bridgeport  Horse  R.  R.  Co.  41  Conn.  61. 

'  It  would  be  otherwise  if  the  defect  proved  was  shown  to  be  the  result  of  a  cause 
presumably  operating  at  the  place  of  casualty  also.  Reed  v.  N.  Y.  Central  R.  R.  Co. 
45  N.  Y.  574,  overruling  56  Barb.  493.  Contra,  Murphy  v.The  Same,  66  Barb.  125; 
and  see  Cox  v.  Westchester  Turnpike  Co.  33  Barb.  414. 

6  Bigley  v.  Williams,  SOPenn.  St.  107, 115  ;  Penn.  R.  R.  Co.  v.  Brooks,  67  Id.  339, 
343 ;  McKinney  v.  Neil,  1  McLean.  640. 

»  Jacobs  v.  Duke,  1  E.  1).  Smith,  271 ;  Baldwin  v.  Western  Railroad,  4  Gray,  833; 
Hays  v.  Millar,  77  Penn.  St.  238.  s.  c.  18  Am.  R/445. 

10  Stuart  v.  Machiasport,  48  Me.  477 ;  Baker  v.  Portland,  68  Id.  199,  s.  c.  4  Am, 
R.  274 

41  Wynn  v.  Allard,  5  Watts  <fe  S.  (Penn.)  524. 


586  ACTIONS  FOR  NEGLIGENCE. 

habits  of  the  servant,  whose  negligence  caused  the  injury,  and 
that  defendants  were  aware  of  such  habits,  is  admissible  for  the 
purpose  of  making  a  case  for  exemplary  damages.1 

13.  Opinions  of  witnesses.'] — On  a  subject  proper  for  an  ex- 
pert's testimony,2 — such  as  a  question  of  navigation  or  seaman- 
ship,8 or  the  management  of  steam,4  and  of  railroad  trains,5  the 
construction  of  railroad  cars,6  and  tracks,7  and  of  bridges,8  the  fast- 
ening of  vessels,  &c.9 — a  witness,  shown  to  be  an  expert,  may  state 
his  opinion.  It  is  competent,  thus,  to  prove  what  would  have 
been  the  proper  construction10  and  mode  of  operation  ;u  the  effect 
of  a  particular  thing  therein  ;12  what  is  or  what  is  not  prudent  ;u 
whether  a  person  of  competent  skill  .would  have  done  what  the 
witness  testifies  was  done,  or  what  is  hypothetically  put  ;14  and 
whether  the  casualty  could  have  been  avoided  by  proper  care.13 
It  is  objectionable  to  ask  whether  the  person  was  negligent,16  or 
whether  he  omitted  anything  that  ought  to  have  been  done  ;17  but 
if  the  point  is  a  proper  subject  of  opinion,  and  the  question  is 
properly  framed,  it  is  no  objection  that  it  involves  the  question 
to  be  decided  by  the  jury.18  An  unskilled  witness  cannot  testify 
whether  anything  could  have  been  done  to  prevent  the  casualty.19 

In  a  matter  not  requiring  special  skill  or  experience, — such  as 
the  necessity  of  gate  and  signals  at  an  open  drawbridge,20  the 
management  of  fire,21  and  the  like, — opinion  evidence  is  not  gen- 
erally admissible.  In  such  cases  it  is  not  competent  to  ask  a 


1  Cleghorn  v.  N.  Y.  Central  <fe  Hudson  River  R.  R.  Co.  66  N.  Y.  44. 

2  See  page  310  of  this  vol. 

3  The  City  of  Washingtou,  92  U.  S.  (2  Otto),  39 ;  Transportation  Co.  v.  Hope,  95 
Id.  297. 

4  The  contrary  held  of  the  necessity  of  a  spark  arrester.     Teall  v.  Barton,  40 
Barb.  137. 

6  Cincinnati,  <fec.  R.  R.  Co.  v.  Smith,  22  Ohio  St  277,  s.  c.  10  Am.  R.  729;  Mott 
v.  Hudson  River  R.  R.  Co.  8  Bosw.  845.  But  compare  Keller  v.  N  Y.  Central  R.  R. 
Co.  2  Abb.  Ct.  App.  Dec.  480. 

6  Baldwin  v.  Chicago,  <fcc.  R.  R.  Co.  8  Cent.  L.  J.  497.     The  contrary  held  of  the 
construction  of  cattle  bars.     Enright  v.  San  Francisco,  <fec.  R.  R.  Co.  33  CaL  230,  236. 

7  Carpenter  v.  Central  Park,  &c  R.  R.  Co.  11  Abb.  Pr.  N.  8.  416. 

8  Conrad  v.  Village  of  Ithaca,  16  N.  Y.  173. 

9  Moore  v.  Westervelt,  27  N.  Y.  234,  affi'g  9  Bosw.  558. 

10  Conrad  v.  Village  of  Ithaca  (above) ;  Baldwin  v.  Chicago,  <fec.  R.  R.  Co.  (above). 

11  Baldwin  v.  Chicago,  <kc.  R.  R.  Co.  (above). 

12  Id. 

13  Transportation  Co.  v.  Hope,  95  U.  S.  (5  Otto),  297 ;  Delaware,  <frc.  Steam  Tow- 
boat  Co.  v.  Starrs,  69  Penn.  St.  36. 

14  Malton  v.  Nesbit,  1  Carr.  <fc  P.  70. 

15  Fenwick  v.  Bell,  1  Carr.  &  K.  312;  Bellefontaine,  <fcc.  R.  R.  Co.  v.  Bailey,  11 
Ohio  St.  333. 

16  Crofut  v.  Brooklyn  Ferry  Co.  36  Barb.  201. 

17  Carpenter  v.  Eastern  Transp.  Line,  N.  Y.  Ct.  App.  17  Alb.  L.  J.  No.  9. 

18  Transportation  Line  v.  Hope.  95  U.  S.  (5  Otto),  297. 

19  Haggerty  v.  Brooklyn,  <fec.  R.'R.  Co.  61  N.  Y.  624. 
*°  Nowell  v.  Wright,  3  Allen,  166,  170. 

11  Teall  v.  Barton,  40  Barb.  137  ;  Fraser  v.  Tupper,  29  Vt.  409. 


GENERAL  RULES.  587 

witness  whether  the  casualty  would  or  would  not  have  occurred 
had  a  specified  circumstance  been  different.1 

Facts  discernible  by  judgment  or  estimate,  but  not  requiring 
special  knowledge  or  skill,  are  not  regarded  as  matters  of  opinion 
within  these  rules.  Hence  any  person  of  ordinary  knowledge 
and  experience  may  testify  to  his  judgment  of  the  speed  of  a 
train  or  vehicle,2  or  whether  a  person  looked  sick  or  well,8  and 
the  like. 

14.  Declarations   and   admissions   generally. .] — Where    evi- 
dence of  a  declaration  is  admissible,  a  witness  who  was  present 
may  be  allowed  to  state  what  he  heard  said,  leaving  it  to  others 
to  identify  the  declarant ;  but  the  fairer  course  is  to  require  that 
identification,  if  necessary  at  all,  be  given  first.4 

The  rules  as  to  competency  of  declarations,  which  are  below 
stated,  are  to  be  taken  with  this  qualification, — that  declarations 
not  competent  on  these  grounds  are  often  admissible  for  other 
purposes,  such  as  to  charge  defendant  with  notice,5  if  indepen- 
dent evidence  of  the  existence  of  the  fact  declared  has  been 
given  ;6  or  as  a  circumstance  which  fixed  the  fact  on  the  witness's 
memory  ;7  and,  in  some  cases,  a  written  statement  may  be  admis- 
sible as  an  original  memorandum  auxiliary  to  the  testimony  of 
the  writer,  or  in  lieu  of  it  after  his  death.8 

15.  Plaintiff's  declarations.'] — Declarations  made  by  the  in- 
jured person,  though  the  plaintiff  himself,  at  the  time  of  his 
suffering  the  disaster,  and  growing  out  of  it,  or  out  of  its  imme- 
diate causes,  and  calculated  to  explain  the  character,  nature  or 
quality  of  the  facts  constituting  the  occurrence  and  its  effects  on 
him,  are  competent,  even  in  his  own  favor,9  if  part  of  the  res 
gestce.™    A  declaration,  which  is  not  admissible  under  this  rule,  is 
not  rendered  admissible  by  the  circumstance  that  it  was  a  dying 
declaration.11 

16.  Defendant's  admissions,  declarations,  and  conduct.'] — The 
admissions  and  declarations  of  a  defendant  are  admissible  ugainst 
himself,12  and  so  is  the  fact  that  he  referred  a  question  of  fact  to 

1  Crane  v.  Northfield,  83  Vt.  124;  Weaver  v.  Alabama,  <tc.  Co.  35  Ala.  176,  183  ; 
Otis  v.  Thorn,  23  Id.  469 ;  linger  v.  Forty-second  bt.  R.  H.  Co.  6  Robt.  237. 

3  Salter  v.  Utica  &  Black  River  R.  It.  Co.  59  N.  Y.  631 ;  Detroit,  <fcc.  R.  R.  Co. 
v.  Van  Steinburgh,  17  Mich.  99, 105. 

3  Higbie  v.  Guardian  Mut.  Life  Ins.  Co.  53  N.  Y.  603.  66  Barb.  462. 

4  Indianapolis,  P.  <fe  C.  11.  Co.  v.  Anthony,  43  Ind.  183,  191. 
*  Parker  v.  Boston,  <fec.  Steamboat  Co.  109  Mass.  449. 

'  Hadencamp  v.  Second  Ave.  R.  It.  Co.  1  Sweeny,  490. 

1  Detroit,  <fec.  R.  R.  Co.  v.  Van  Steinburgh,  17  Mich.  99,  107. 

«  See  Downs  v.  N.  Y.  Central  R.  R.  Co.  47  K  Y.  83,  and  pages  319-322  of  this 

Tol. 

'  Frink  v.  Coe,  4  Greene  (lown),  655.  In  favor  of  admitting  declarations  snbse- 
quent  to  the  act,  see  Commonwealth  v.  M'l'ike,  3  Cush.  (Mass)  181;  Uarriman  v. 
Stowe,  67  Mo.  93.  Contra,  Cleveland,  Ac.  R.  R.  Co.  v.  Mara,  26  Ohio  St.  185. 

10  Brownell  v.  Pacific  R.  R.  Co.  47  Mo.  239,  244  ;  see  paragraph  17. 

"  Marshall  v.  C.  <fc.  G.  E.  R.  R.  Co.  48  111.  475. 

"Do  Benedetti  v.  Mauchin,  1  Hilt.  213.     And.  equally,  conduct  indicating  a  con- 


588  ACTIONS  FOR  NEGLIGENCE. 

a  third  person,  together  with  such  person's  answer.1  But  such 
evidence  is  not  conclusive  against  the  defendant  ;2  nor  is  it  com- 
petent against  a  co-defendant,8  except  when  made  so  by  being 
part  of  the  res  gestce,  or  when  some  connection  between  the  de- 
fendants is  shown  to  justify  one  in  speaking  for  the  other.4 

An  admission  of  having  been  in  fault  is  cogent  evidence  ;  but 
an  admission  of  having  caused  the  casualty  is  not  necessarily  an 
admission  of  having  been  in  fault.5 

17.  Admissions  and  declarations  of  servants,  dkc.'] — The  dec- 
larations of  defendant's  servants 6  and  equally  those  of  plaintiff's 
servants 7  are  competent  in  favor  of  either  party,  if  part  of  the  res 
gestce,  or  if  within  the  scope  of  agency  for  the  party  against  whom 
they  are  offered.  The  two  main  rules,  allowing  and  limiting  such 
evidence  on  these  grounds,  have  been  already  stated.8  In  illustra- 
tion of  the  rule  of  the  res  gestcs,  it  will  suffice  to  say  that  declara- 
tions of  a  railroad  engineer  or  steamboat  captain,  made  while  run- 
ning recklessly,  and  characterizing  the  act,9  are  competent  against 
the  employer,  in  an  action  for  an  injury  caused  by  that  reckless- 
ness ;  but  such  declarations  or  admissions,  made  after  the  heat 
of  the  emergency  had  passed,  and  other  acts  had  intervened,10 — as, 
for  instance,  on  arriving  at  the  next  station,  after  the  casualty  ; u 


sciousness  of  liability.  Banfield  v.  Wbipplo,  10  Allen,  27,  31.  The  conduct  of  defend- 
ant or  his  servaut,  immediately  on  the  happening  of  the  casualty,  in  staying  or  fleeing, 
is  competent  as  tending  to  show  animus.  Barker  v.  Savage,  1  Sweeny,  288,  291. 
Evidence  of  subsequent  precautions  against  a  recurrence  of  the  disaster  is  admitted 
in  Pennsylvania  (Penn.  R.  R.  Co.  v.  Henderson,  61  Pa.  St.  315 ;  Westchester  R.  R.  v. 
McElure,  67  Penn.  St.  811 ;  McKee  v.  Bidwell,  74  Penn.  St.  218,  225) ;  but  net  in 
New  York  (Dougan  v.  Champlain  Transp.  Co.  66  N.  Y.  1,  affi'g  6  Lans.  430;  Salters 
v.  Delaware  &  Hudson  Canal  Co.  3  Hun,  338  ;  Payne  v.  Troy  &  Boston  R.  R.  Co.  9 
Hun,  626.  Contra,  Wesfall  v.  Erie  Ry.  Co.  5  1'un,  75 ;  Baldwin  v.  N.  Y.  &  Harlem 
Nav.  Co.  4  Daly,  314.  And  see  Bevier  V.  Delaware  &  Hudson  Canal  Co.  13  Hun, 
254,  256 ;  Baird  v.  Daly,  68  N.  Y.  547).  The  true  principle  is  that  subsequent  pre- 
cautions may  admit  inadequacy  but  not  fault.  The  defendant's  private  reprimand 
and  dismissal  of  the  servant  at  fault,  held  not  competent  as  an  admission  of  his  neg- 
ligence. Betts  v.  Farmers'  Loan,  &c.  Co.  21  Wis.  80,  86. 

J  Sybray  v.  White,  1  M.  <fc  W.  435 ;  Rose.  N.  P.  73. 

«  Id. ;  Sutherland  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.  41  Super.  Ct.  (J.  &  S.)  17. 

8  Daniels  v.  Potter,  1  M.  <fe  M.  501. 

4  Compare  chapter  VII  of  this  vol.,  and  Reagan  v.  Grim,  14  Penn.  St.  608. 

6  Lansing  v.  Stone,  87  Barb.  15,  B.  c.  14  Abb.  Pr.  199. 

6  See,  for  instance,  Reed  v.  Dick,  8  Watts  (Pa.),  479. 

'  See,  for  instance,  Toledo,  &c.  R.  R.  Co.  v.  Goddard,  25  Ind.  185, 190. 

8  Page  44  of  this  voL 

9  Gerke  v.  Cal.  Steam  Nav.  Co.  9  Cal.  251,  255 ;    R.  R.  Co.  v.  Messino,  1  Sneed 
(Tenn.),  220,  227. 

10  The  principle  applied  by  those  courts  that  admit  such  declarations  most  freely, 
is  to  receive  those  which  are  obviously  elicited  by  the  casualty,  though  not  literally 
simultaneous  with  it,  if  they  follow  in  close  connection  and  before  other  acts  inter- 
vene, so  as  to  be  apparently  the  spontaneous  expression  of  the  natural  consciousness 
while  still  under  the  heat  of  the  emergency.  Compare  Ins.  Co.  v.  Mosely,  8  Wall.  397; 
approved  in  9  Id.  408,  and  cases  cited.  The  New  York  courts  exclude  such  declara- 
tions, unless  it  affirmatively  appears  that  they  were  made  at  the  time  of  the  injury. 
Whitaker  v.  8th  Avenue  R.  R.  Co.  61  N.  Y.  295,  rev'g  Whitaker  v.  8th  Avenue  R.  R 
Co.  6  Robt.  650  ;  Luby  v.  Hudson  R.  R.  Co.  17  N.  Y.  131. 

."  Sims  v.  Macon,  <fcc.  R.  R.  Co.  28  Geo.  94;  Bellefontaine  Ry.  Co.  v  Hunter,  33 
Ind.  335.  s.  o.  5  Am.  R.  201. 


GENERAL  RULES.  589 

or  on  a  later  day  though  while  continuing  the  voyage ;  *  or  on 
being  arrested  when  leaving  the  spot,3 — are  not  competent. 

Declarations  made  before  or  after  the  casualty  may  be  made 
admissible  by  showing  that  the  declarant  was  acting  in  the  scope 
of  his  employment  at  the  time,  in  a  matter  involved  in  the  duty 
or  care  required  of  defendant,  and  default  in  which  caused  the 
disaster,3  or  aggravated  the  wrong.4  If  it  be  shown  that  the 
declarant  spoke  in  response  to  timely  inquiries  addressed  to  him, 
and  relating  to  matters  under  his  charge,  in  respect  to  which  he 
was  authorized,  in  the  usual  course  of  business,  to  give  informa- 
tion,5 this  principle  suffices  to  admit  the  declaration  of  the  agent, 
and  hence  narratives  of  past  facts  are  not  necessarily  excluded, 
as  they  are  where  only  the  rule  of  res  gestcs  is  invoked. 

18.  —  of  third  person  injured.'] — Where  the  beneficial  as 
well   as  legal  right  of   action  is  in  another  than  the  injured 
person, — as  where  a  parent  sues  for  injuries  to  his  minor  chiid, 
— the  admissions  ol  the  latter  are  not  competent   against  the 
plaintiff,6  unless  as  part  of  the  res  gestce,  or  brought  home  to 
plaintiff  by  independent  evidence. 

19.  Strangers.] — The   declarations   of   any   persons   present, 
made  in  the  heat  of  the  emergency,  and  forming  part  of  the 
incident  and  illustrating  the  nature,  cause   or  extent  of  the 
wrong,  may  be  proved  as  part  of  the  res  gestce? 

20.  Violation  of  Statute.'] — Although  the  fact  that  an  act 
required  by  statute  was  omitted,  or  that  an  act  done  was  a  viola- 
tion of  a  statute,  does  not  alone  necessarily  sustain  an  action 
against  the  offender  for  negligence,8  nor  necessarily  bar  an  action 
by  him  for  negligence  injurious  to  him  while  offending ; 9  yet  it  is 
relevant  as  evidence  on  the  question  of  negligence  in  the  act ; 
and  if  the  statute  regulated  the  manner  for  purposes  of  safety, 
and  the  injury  resulted  from  the  disregard  of  such  regulations, 


1  Packet  Co.  v.  Clough,  20  Wall.  528. 

s  Whitaker  v.  Eighth  Ave.  R.  R.  Co.  (above). 

3  Thus  declarations  of  those  engaged  in  construction  may  be  competent  if  the 
cause  of  disaster  was  a  defect  in  that  construction.     Brehm  v.  Great  Western  R. 
R.  Co.   34    Barb.  226 ;  Peyton  v.  Governors  of  St.  Thomas  Hospital,  3  M.  &  Ry. 
625  n. ;  Matteson  v.  N.  Y.  Central  R.  R.  Co.  62  Barb.  864. 

4  For  instance,  the  master's  refusal  to  allow  the  injured  passenger  assistance,  after 
the  casualty.     Hall  v.  Steamboat  Co.  13  Conn.  319,  324.     Otherwise  if  the  conduct 
of  the  declarant  is  not  implicated  in  the  fault.     Maury  v.  Talmadge,  2  McLean, 
157 ;  Mobile  &  M.  R.  R.  Co.  v.  Ashcraft,  48  Ala.  15. 

6  See  page  44  of  this  vol. 

•  Ohio,  <fec.  R.  R.  Co.  v.  Hammersley,  28  Ind.  871. 

7  Norwich  Transp.  Co.  v.  Flint,  13  Wall.  8  ;  7  Blatchf.  686.     Under  these  rules  a 
newspaper  account  (Downs  v.  N.  Y.  Central  R.  R.  Co.  47  N.  Y.  83),  or  a  passengers' 
card  of   exoneration  (Macon,  Ac.  R.  R.  Co.  v.  Johnson,  38  Geo.  409,  436),  are  not 
competent.     As  to  proving  outcries,  compare  1   Whart.  Ev.  46,  8  36;    Messner  v. 
People,  45  N.  Y.  1. 

*  Smith  v.  Lockwood,  13  Barb.  209,  217 ;  Van  Hook  v.  Whitlock.  2  Ed.  Ch.  304. 
9  Hoffman  v.  Union  Ferry  Co.  68  N.  Y.  390 ;  Baker  v.  Portland,  58  Me.  199,  s.  a 

4  Am.  R.  274. 


590  ACTIONS  FOR  NEGLIGENCE. 

this  is  sufficient  prima  facie  evidence  of  negligence.1  But,  on 
the  other  hand,  compliance  with  the  statute  is  not  usually  con- 
clusive evidence  of  due  care.2 

21.  —  of  municipal  ordinance.] — Violation  of  a  municipal 
ordinance  regulating  the  manner  of  the  act,  is  relevant  on  the 
question  of  negligence.8 

22.  Usage.] —  Plaintiff  may  show  the  general  course  and 
usage  of  the  business,  so  far  as  necessary  for  the  purpose  of 
showing  what  ought  to   have  been  done    in   conducting  the 
transaction  in  which  defendant   is  alleged  to  have  been  neg- 
ligent.4   Where  the  measure  of   defendant's  duty  is  ordinary 
care,  the  manner  in  which  other  persons  in  the  same  general 
business  are  accustomed  to  do,  is  competent.5    Otherwise  where 
the  duty  is  not  to  be  thus  measured.6    In  neither  case  is  the  de- 
fendant's own  usage  competent  in  his  favor.7 

A  general  usage  may  be  proved  by  testimony  of  experts,  to 
decide  a  question  of  duty  not  governed  by  law.8 

23.  Ownership  of  the  thing  causing  the  injury.'] — Ordinarily 
evidence  that  the  property,  mismanagement  01  which  caused  the 
injury,  was  owned  by  and  in  the  control  of  defendant,  is  prima 
facie  evidence  that  the  negligence  was  imputable  to  him.9     To 
make  a  municipal  corporation  liable  for  the  unsafe  condition  of 
public  property,  its  custody  and  control  of  the  property  must  be 
shown.  ° 

Ownership n  and  possession  w  may  each  be  proved  by  direct 
testimony  of  a  witness  to  the  fact,  subject  of  course  to  cross-ex- 
amination. Evidence  of  acts  of  ownership,  such  as  applying  for 


I  Cordell  y.  N.  Y.  Central  R.  R.  Co.  64  N.  Y.  635,  rev'g  6  Hun,  461.     See  also 
Wooster  v.  Canal  Bridge  Co.  16  Pick.  641,  544;  Shearm.  &  Red.  Negl.  §  484. 

s  Caldwell  v.  N.  J.  Steamb.  Co.  47  N.  Y.  282,  affi'g  66  Barb.  425.  Compare 
Doward  v.  Lindsay,  L.  R.  6  P.  C.  338,  s.  c.  8  Moak's  Eng.  261. 

3  McGrath  v.  N.  Y.  Central  <fc  H.  R.  R.  R.  Co.  63  N.  Y.  622;   Beisigel  v.  N.  Y. 
Central,  14  Abb.  Pr.  N.  S.  29 ;   Jetter  v.  New  York  <fe  Harlem  R.   R.  Co.  2  Abb. 
Ct.  App.  Dec.  468;    Phila.   <fe   Reading  R.  R:    Co.    v.   Ervin,    Supreme   Ct.   Pa. 
March,  1879,  Reporter,  153. 

4  Brown  v.  Hitchcock,  28  Vt.  452. 

5  Page  673  of  this  vol. 

8  As  in  case  of  a  city's  liability  for  defective  highway  (City  of  Champaign  v. 
Patterson,  50  111.  61,  65);  or  bridge  (Bliss  v.  Wilbraham,  8  Allen,  664);  or  that  of  a 
railroad  company  to  guard  against  fires  from  sparks  (Grand  Trunk.  Ry.  v.  Richard- 
son, 91  U.  S.  [l  Otto],  464,  469);  or  of  the  keeper  of  gunpowder  (Bradley  v. 
People,  56  Barb.  72).  Compare  Bacon  v.  Boston,  8  Cush.  (Mass.)  174,  181. 

7  Gahagan  v.  Boston,  <fcc.  R.  R.  Co.  1  Allen,  187 ;  Maury  v.Talmadge,  2  McLean, 
167. 

8  Barnard  v.  Kellogg,  10  Wall.  383  ;  The  City  of  Washington,  92  U.  S.  (2  Otto), 
81 ;  The  Clement,  2  Curt.  363,  369. 

9  Shearm.  <fe  R.  on  Negl.  §§  71,  72,  195 ;  reviewing  conflicting  authorities.     Com- 
pare  Mullen  v.  St.  John,  67  N.  Y.  667 ;  English  v.  Brennan,  60  Id.  609. 

10  Shearm.  &  R.  §  150 ;  Terry  v.  Mayor,  <fec.  of  New  York,  8  Bosw.  504 ;  and,  ac. 
cording  to  some  authorities,  that  it  received  profit  or  advantage  from  it  as  property. 
Hill  v.  City  of  Boston,  ]  22  Mass.  344. 

II  De  Wolf  v.  Williams,  69  N.  Y.  622. 

»  Hardenbergh  v.  Crary,  60  Barb.  32 ;  Knapp  v.  Smith,  27  N.  Y.  277. 


GENERAL   RULES.  591 

a  license,1  or  receiving  proceeds,2  is  competent.  A  sign-board  is 
competent,3  but  not  necessarily  sufficient.  Evidence  that  the 
thing  was  leased  to  a  third  person,  is  competent  in  defense.* 

24.  Connection  of  cause  with  injury. ,] — Plaintiff  cannot  re- 
cover unless  he  proves  that  the  injury  was  caused  by  defendant. 
It  is  not  enough  to  prove  that  it  was  possibly,  or  even  probably, 
caused  by  him  ; 5  nor  that  his  negligence  was  the  remote  cause  or 
mere  occasion.6     What  is  the  proximate  cause  is  ordinarily  a 
question  for  the  fury,  to  be  determined  upon  a  view  of  all  the 
circumstances.7    Plaintiff  is  not  bound  to  show  the  precise  cause. 
It  is  enough  if  he  shows  the  injury  to  be  attributable  to  one  or 
other  of  several  causes,  for  each  of  which  defendant  is  respon- 
sible.8 

Where  the  facts  suggest  several  hypotheses,  an  expert  may  be 
asked,  what  would  have  been  the  indications  on  one  or  another 
hypothesis  without  first  proving  it  to  be  the  true  one.9 

Evidence  of  the  true  source  of  injury  is  admissible  under  a 
general  denial.10 

25.  Notice  of  defect:  Request."} — Notice  to  defendant  of  the 
defect  in  his  premises  which  caused  the  injury,  may  be  presumed 
from  its  existence  for  a  sufficient  lapse  of  time  previously  ;  but 
such  pre-existence  will  not  be  presumed  without  evidence.11    Ex- 
press notice  to  an  agent  or  servant,  whose  duty  it  was  to  attend 
to  or  to  report  on  the  defect,  is  enough.12 

Under  an  allegation  of  request,  evidence  of  excuse  for  not 
making  request  is  not  competent.13 

26.  The  delinquent  an  agent  or  servant  of  defendant.] — In  ad- 
dition to  what  has  been  said  in  the  previous  chapter,14  it  should  be 
observed  that  the  fact  that  the  delinquent  was,  .at  the  time  of  the 
disaster,  in  charge  of  the  property  of  the  defendant  which  caused 


1  Commonwealth  v.  Gorman,  16  Gray,  601. 

*  Grier  v.  Sampson,  27  Pa.  St.  183,  192. 
-     «  Stables  v.  Ely,  1  Carr  A  P.  614. 

4  Kastor  v.  Newhouse,  4  E.  D.  Smith,  20 ;  Hart  v.  New  Orleans,  Ac.  Co.  4  La. 
Ann.  261. 

6  Sheldon  v.  Hudson  River  R.  R.  Co.  29  Barb.  226;  Lehman  v.  City  of  Brooklyn, 
Id.  234. 

6  For  illustrations  see  Card  v.  City  of  Elsworth,  65  Me.  647,  8.  o.  20  Am.  R.  722; 
Kellogg  v.  St.  Paul,  Ac.  R.  R.  Co.  94  U.  8.  (4  Otto),  469 ;  Burke  v.  Louisville,  Ac. 
R.  R.  Co.  7  Heisk.  (Tenn.)  451,  s.  o.  19  Am.  R.  618;  Clark  v.  Chambers,  38  L.  T.  R. 
N.  S.  454.  But  it  is  not  necessary  that  the  negligence  complained  of  be  the  sole 
cause  of  the  injury.  Pollett  v.  Long,  66  N.  Y.  200. 

1  Kellogg  y.  St.  Paul,  Ac.  R.  R.  Co.  (above). 

8  See,  for  instance,  Bevier  v.  Delaware  A  Hudson  Canal  Co.  13  Hun,  264,  267. 

9  Erickson  v.  Smith,  2  Abb.  Ct.  App.  Dec.  64. 

10  Schaus  v.  Manhattan  Gas-light  Co.  14  Abb.  Pr.  N.  S.  371. 

11  Sherman  v.  Western  Transp.  Co.  62  Barb.  150. 

11  Conger  v.  Chicago,  Ac.  R.  R.  24  Wis.  157,  s.  c.  1  Am.  R.  164;  Parker  v.  Steam- 
boat  Co.  109  Mass.  449 ;  compare  Black  v.  Camden  A  Amboy  R.  R.  Co.  46  Barb.  40 ; 
Swords  v.  Edgar,  59  N.  Y.  28. 

13  Lyman  v.  Eclerton.  29  Vt.  308. 

"  Pages  41,  480  and  680. 


592  ACTIONS  FOR  NEGLIGENCE. 

the  injury,  is  sufficient  evidence  to  go  to  the  jury  that  he  was 
defendant's  agent  or  servant,  and  that  the  property  was  in  use 
for  defendant's  benefit.1 

If  the  delinquent  was  acting  within  the  scope  of  his  employ- 
ment,8 the  master  is  liable ;  and  is  not  exempt  simply  because 
the  servant  acted  maliciously.3 

27.  Contractor  or  servant.] — In  determining  whether  a  person 
is  a  "  contractor  "  or  not,  the  circumstance  that  he  always  serves 
the  same  person  affords  a  very  strong  presumption  that  he  has 
no  independent  occupation ;  but  this  presumption  is  not  conclu- 
sive.4   The  fact  that  a  person  doing  work  is  subject  to  dismissal 
by  his  employer  at  any  moment,  is  a  circumstance  raising  a  pre- 
sumption that  he  is  a  servant  and  not  a  contractor,  but  not  con- 
clusive.5 

28.  Common  employment.'] — If  defendant  relies  on  the  fact 
that  plaintiff  was  a  fellow  servant  of  the  delinquent,6  and  plaint- 
iff's case  only  shows  an  injury  received  through  defendant's  negli- 
gence, the  defendant  has  the  burden  of  showing  that  the  relation 
of  master  and  servant  existed  between  them.7     If  that  relation  is 
shown  or  admitted,  the  servant  must  prove  that  the  risk  by  which 
he  was  injured  was  not  one  of  those  which  he  assumed.8     The 
presumption  that  the  servant  contracted  with  a  view  to  peril, 
cannot  arise  where  the  risk  is  not  within  the  contract  of  service, 
and  the  servant  had  no  reason  to  believe  he  would  have  to  en- 
counter it.9 

If  defect  of  machinery  is  proved,  there  must  be  evidence  im- 


1  Norris  v.  Kobler,  41  N.  Y.  42,  rev'g  1  Sweeny,  39,  and  see  Boniface  v  Relyea,  5 
Abb.  Pr.  N.  S.  259,  e.  o.  6  Robt.  397 ;  Svenson  v.  Atlantic  Mail  Steamship  Co.  57  N. 
Y.  108,  affi'g  33  Super.  Ct.  (1  J.  &  S.)  277. 

a  A  stevedore's  foreman,  dissatisfied  with  acartman's  unloading,  zealously  took  the 
cartman's  place,  and,  in  throwing  a  package,  injured  plaintiff.  Held  evidence  to  go 
to  the  jury  that  he  was  acting  for  the  stevedore.  The  question  was,  did  he  act,  per- 
haps over-zealously,  in  his  employment,  or  did  he  act  for  a  purpose  of  his  own  ? 
Burns  v.  Poulson,  L.  R.  8  C.  P.  563,  s.  c.  6  MoaFs  Eng.  261.  On  the  other  hand,  a 
master  was  held  liable  for  negligent  act  of  clerk  when  watching  for  thief  (Courtney 
v.  Baker,  60  N.  Y.  1 ;  37  Super.  Ct.  (5  J.  <fe  S.)  249);  but  not  liable  for  malicious  act 
in  shooting  a  trespasser.  Fraser  v.  Freeman,  43  N.  Y.  566,  rev'g  56  Barb.  234. 

A  driver  went  out  with  the  team  on  an  errand  of  his  own,  and  returning  called 
for  some  of  his  master's  goods  on  the  way,  and  while  carrying  them  had  a  collision. 
Held,  that  he  was  not  acting  within  the  scope  of  his  employment.  Rayner  v.  Mitch- 
ell, 25  Weekly  Ri  633.  On  the  other  hand,  a  driver  took  a  load  of  coal  to  the  wrong 
house,  and  delivered  it  to  one  who  had  not  ordered  it  but  subsequently  paid  for  it ; 
and  the  driver  left  the  coal-hole  open.  Held,  that  he  was  acting  within  the  scope  of 
his  employment.  Whitely  v.  Pepper,  36  L.  T.  R.  N.  S.  588. 

3  Mott  v.  Consumers  Ice  Co.  73  N.  Y.  543,  and  cases  cited. 

4  Shearm.  <t  Red.  8  76. 

5  Id.  §  78. 

6  For  the  grounds  of  this  exemption,  see  3  Am.  R.  146,  n ;  3  South.  L.  Rev.  N.  S. 
735,  2  Id.  108,  5  Id.  200,  380  ;  Mullan  v.  Philadelphia,  Ac.  Mail  Steamship  Co.  78 
Penn.  St.  25,  8.  o.  21  Am.  R.  2,  and  cases  cited;   Mai  one  v.  Ilathaway,  64  N.  Y.  6, 
12. 

1  Wharton  on  Neg.  §§  226,  243. 
8  Beaulieu  v.  R.  R.  48  Me.  291. 
»  Railroad  Company  v.  Fort,  17  Wall.  553. 


GENERAL  RULES.  593 

puting  or  implying  cognizance  of  it  in  the  master,  unless  it  was  a 
defect  which  he  was  bound  to  know.1  The  burden  of  proving 
that  the  plaintiff  also  knew  of  the  defect  which  caused  the  injury, 
but  continued  his  service  notwithstanding,  rests  upon  the  defend- 
ant.3 If  defendant  proves  this,  plaintiff  may  then  show  that  de- 
fendant induced  him  to  continue  his  work  by  promising  to  rem- 
edy the  defect.3 

29.  Negligent  employment  of  unfit  servant."] — Where  a  servant 
in  common  employment  relies  on  negligence  of  the  employers  in 
engaging  an  incompetent  fellow  servant,  the  negligence  may  be 
proved  by  evidence  that  the  latter  was  an  unfit  person,  and  was 
known  to  defendants,  or  generally  known  and  reputed,  to  be  such.4 
The  negligence  of  the  employee,  on  the  occasion  of  the  injury,  is 
not  by  itself  sufficient  evidence  to  charge  the  defendants  with  neg- 
ligence in  appointing  or  retaining  the  employee  ;s  but  the  evidence 
of  his  incompetency  may  show  circumstances  which  raise  a  fair  in- 
ference that  they  were  negligent  in  selecting  him,  or  in  omitting 
ordinary  inquiries  as  to  his  qualifications,  &c.6  For  the  purpose  of 
charging  the  defendants  with  notice  of  the  incompetency,  it  may 
be  shown  that  the  servant  had  been  guilty  of  specific  acts  of  care- 
lessness, unskillfulness  and  incompetency,  and  that  such  acts  were 
known  to  defendants  or  their  officers  prior  to  his  employment,  or 
that  he  had  been  retained  in  service  after  notice  of  such  acts.7 
For,  when  character  is  the  subject  of  investigation,  specific  acts 
tend  to  exhibit  the  peculiar  qualities  and  indicate  the  adaptation 
or  unfitness  for  a  particular  duty.8  One  single  act  of  negligence 
by  a  servant,  does  not  of  itself  have  any  tendency  to  establish 
general  incompetency.9 

The  declarations  of  the  agent  for  hiring  and  discharging  ser- 
vants, made  to  the  plaintiff,  are  admissible  to  show  his  knowledge 
of  the  unfitness  of  a  servant  whom  he  neglected  to  discharge,  if 
part  of  the  res  gestce ; 10  otherwise  not ; u  except  for  the  purpose 

1  Wharton  on  Neg.  §  243 ;   Columbus,  Chicago  <t  Indiana  Central  Ry.  Co.  v 
Froesch,  68  111.  545,  8.  c.  18  Am.  R.  578. 

2  Shearm.  <fe  Red.  §  99.     Evidence  thnt  he  knew  that  some  of  the  cars  were  not 
adequately  provided,  is  enough,  although  he  did  not  notice  the  condition  of  the  par- 
ticular car  which  caused  the  accident.     Ladd  v.  New  Bedford  Railroad  Company,  119 
Mass.  412,  8.  c.  20  Am.  R.  331. 

8  Shearm.  <fe  Red.  §  99. 

*  Oilman  v.  E.  R.  R.  Co.  10  Allen,  233,  s.  p.  20  Mich.  105,  8.  c.  4  Am.  R.  864; 
Cook  v.  Parham,  24  Ala.  21,  83. 

6  Wharton  on  Neg.  §  240;  Shearm.  «fe  Red.  on  Neg.  §  91. 

6  Shearm.  <fe  Red.  on  Neg.  891. 

1  Pittsburgh,  Fort  Wayne  &  Cliicigo  Ry.  Co.  v.  Ruby,  33  Ind.  294,  8.  o.  10  Am. 
R.  Ill,  and  cases  cited;  1  Whart.  Ev.  68,  §  56.  Compare  Frazier  v.  Penn.  R.  R.  Co. 
SSPenn.  St.  104,  liO. 

8  BamVcv.  N.  Y.  <fe  Harlem  R.  R.  Co.  69  N.  Y.  356,  s.  c.  48  How.  Pr.  899,  affi'g, 
In  effect,  14  Abb.  Pr.  N.  S.  310,  s.  c.  5  Lans.  436;  62  Barb.  623. 

9  Lee  v.  Detroit  Bridge,  <tc.  62  Mo.  565  ;  Baulec  v.  N.  Y.  <fc  Harlem  R.  R.  Co.  59 
N.  Y.  356. 

10  Laning  v.  N.  Y.  Central  R.  R.  Co.  49  N.  Y.  521,  affi'g,  in  effect,  2  Lans.  606. 

11  Huntiugton  R.  R.  v.  Decker,  3  Week'y  Notes,  120. 

38 


594  ACTIONS  FOR  NEGLIGENCE. 

of  charging  defendant  with  notice,  for  which  purpose  evidence  of 
declarations  made  before  the  disaster,  is  competent.1  If  there  is 
no  evidence  that  the  person  engaged  was  unlit  before  his  engage- 
ment, he  may  be  presumed  by  the  jury  to  have  become  so,  if  at 
all,  after  his  engagement ;  and  the  jury  may  presume  that  the  em- 
ployer made  due  inquiries.  The  burden  is  on  the  plaintiff  to 
show  the  contrary.2 

30.  Plaintiffs  title.'} — Plaintiff  must  show  that  he  has  some 
title  or  interest  in  the  thing  injured.3    A  witness  may  testify 
directly,  in  the  first  instance,  who  owned  the  thing,  and  who  was 
in  possession,4  subject,  of  course,  to  cross-examination.     Defend- 
ant's recognition  of  the  thing  as  plaintiff's,  is  competent.5     Slight 
evidence  is  enough,  if  uncontradicted.     As  to  personal  property, 
possession  i&prima  facie  enough.0 

31.  Manner  of  injury. ~\ — If  negligence  alleged  is  substantially . 
proved,  a  .variance  in  the  manner  of  resulting  injury  is  not  usual- 
ly material.7 

32.  Condition  of  person,  or  thing  injured.'] — The  person  in- 
jured may  be  asked,  as  a  witness,  to  state  the  effect  of  the  injury 
upon  him,  and  may  detail  the  nature  and  extent  of  the  injury, 
stating  facts  within  his  knowledge,  as  distinguished  from  mat- 
ters of  opinion  requiring  professional  skill  in  their  just  forma- 
tion.8    The  injury  must  be  proved  by  witnesses ;  but  the  thing  in- 
jured may  be  produced  for  the  inspection  of  the  jury  under  such 
testimony.9    A  photograph  of  the  place  is  admissible.10 

33.  Burden  of  proof  as  to  contributory  negligence.'] — Three 
rules  contend  for  control  as  to  whether  plaintiff  must  prove  his 
own  freedom  from  contributory  negligence.     1.  That  ordinary 
care  is  presumable ;  and  if  plaintiff  can  prove  his  case  without 
showing  contributory  negligence,  the  burden  is  on  defendant. 
2.  That  plaintiff's  care  is  not  presumed,  and  the  burden  is  on  him 
to  disprove  contributory  negligence.     3.  That  neither  care,  nor 
the  want  of  it,  is  presumable,  in  the  absence  of  evidence ;  and  that, 
if  the  facts  show  a  duty  of  care,  plaintiff  must  give  some  evidence 


1  Chapman  v.  Eric  Ry.  Co.  55  N.  Y.  579,  rev'jr  1  Supm.  Ct.  (T.  &  C.)  526. 
5  Davis  v.  Detroit  <fe  Milwaukee  R.  R.  Co.  20  Mich.  105,  s.  c.  4  Am.  11.  364. 
8  See  Cook  v.  Champlain  Transp.  Co.  1  Den.  91;  Ohio,  <fcc.  R.  R.  Co.  v.  Jones, 
27  111.  41. 

4  See  De  Wolf  v.  Williams,  69  N.Y.  622 ;  Miller  v.  Long  Island  R.  R.  Co.  9  Hun,  194. 

5  See  Smith  v.  Causey,  28  Ala.  655.     Grand  Trunk  R.  R.  Co.  v.  Richardson,  91 
U.  S.  (1  Otto)  454. 

«  Fish  v.  Skut,  21  Barb.  333. 

7  Pollard  T.  New  Haven  R.  R.  Co.  V  Bosw.  437 ;  and  see  Antisdel  v.  Chicago,  <fcc. 
R.  R.  Co.  25  Wis.  145. 

8  Creed  v.  Ilartman,  8  Bosw.  123  ;  affi'd,  on  other  points,  29  N.  Y.  591.    The  rules 
applicable  to  testimony  to  the  condition  of  persons  and  things  have  been  already  in- 
dicated.    Pages  586,  587,  594. 

9  Mulhndo  v.  Brooklyn  City  R.  R.  Co.  30  N.  Y.  370.     Contra,  Jacobs  v.  Davis,  84 
Md.  204,  216. 

10  Cozzens  v.  Hoggins,  1  Abb.  Ct.  App.  Dec.  451. 


GENERAL  RULES.  595 

from  which  the  jury  may  infer  that  he  exercised  it ;  otherwise, 
he  need  not.  . 

34.  —  the  United  States  Court  rule.] — The  rule  applied  by  the 
Supreme  Court  of  the  United  States,1  is,  that  the  plaintiff  is  not 
bound  to  prove  affirmatively  that  he  was  himself  free  from  negli- 
gence.    If  lie  can  prove  his  case  without  showing  contributory 
negligence,  it  is  a  defense  to  be  proved  by  the  defendant.2 

35.  —  the  Massachusetts  rule.'] — The  rule  applied  by  the  Su- 
preme Court  of  Massachusetts3  is,  that  the  burden  is  always  upon 
the  plaintiff  to  establish,  either  that  he  himself  was  in  the  exer- 
cise of  due  care,  or  that  the  injury  is  in  no  degree  attributable  to 
any  want  of  proper  care  on  his  part ; 4  and  while  the  inference  of 
such  care  may  be  drawn  from  the  absence  of  all  appearance  of  fault, 
either  positive  or  negative,  on  his  part,  in  complete  and  affirma- 
tive evidence  of  all  the  circumstances  under  which  the  injury  was 
received,5  yet  evidence  which  only  partially  discloses  the  facts, 
leaving  a  case  consistent  alike  with  negligence  and  with  care  on 
plaintiff's  part,  is  not  enough  to  sustain  a  verdict.6    Plaintiff  must 
show  himself  in  the  right,  and  defendant  in  the  wrong: 


1  Following  and  extending  the  doctrine  of  the  New  York  cases  stated  in  Oldfield 
V.  N.  Y.  &  Harlem  R.  R.  Co.  14  N.  Y   310,  affiV  3  E.  D.  Smith,  103. 

2  Railroad  Co.  v.  Gladmon,  15  Wall.  401 ;  Indianapolis,  tfcc.  R.  R.  Co.  v.  Hoist, 
93  U.  S.  (3  Otfc>),  291.     Contra,  Hull  v.  Richmond,  2  Woodb.  &  M.  337;  Beardsley 
v.  Swann,  4  McLean,  333. 

Applied  also  in  Alabama  (Smoot  v.  Mayor.  &c.  24  Ala.  112).  California  (Gay  v. 
Winter,  34  Cal.  !  53).  Georgia  (n.  3,  below).  Kentucky  (P.  &  M.  R.  R.  Co.  v.  Hoeh'l,  12 
Bush,  41).  Mary/and ( Northern  Cent.  Ry.  v.  State,  31  Md.  357).  Minnesota (Hocum 
v.  \Yitherick,  22  Minn.  152).  Missouri  (Thompson  v.  North  Mo.  R.  R.  51  Mo.  190). 
New  Hampshire  (White  v.  Concord  R.  R.  Co.  30  N.  II.  188,  207;  Smith  v.  Eastern 
R.  R.  Co.  35  Id.  356,  366).  New  Jersey  (Durant  v.  Palmer,  29  N.  J.  L.  [5  Dutcher], 
244 ;  N.  J.  Express  Co.  v.  Nichols,  33  Id.  [4  Vroom],  434).  Ohio  (Cleveland,  <fcc. 
R.  R.  Co.  v.  Crawford,  24  Ohio  St.  631,  636).  Pennsylvania  (Pennsylvania  "R.  H.  Co. 
v.  We  er,  76  Penn.  St.  157,  s.  c.  18  Am.  R.  407).  Rhode  Island  (Cassidy  v.  Anjrell, 
Mar.  1879,  cited  in  20  Alb.  L,  J.  305).  7'cxas  (Texas,  &c.  R.  R.  v.  Murphy,  4>>  Tex. 
356;  contra,  Walker  v.  Ilerron,  22  Id.  55);  and  Wisconsin  (Hoyt  v.  Hudson,  41  Wis. 
105,  s.  c.  22  Am.  R.  714 ;  Prideaux  v.  City  of  Mineral  Point,  43  Wis.  513). 

Wharton  approves  presuming  plaintiff's  freedom  from  negligence,  in  the  absence 
of  all  evidence  on  the  point.  Whart.  on  Negl.  §  425. 

3  Applied  also  in  Georgia  (Brannan  v.  May,  17  Geo.  136;  Campbell  v.  Atlanta 
R.  R.  Co.  53  Id.  488 ;   contra,  Thompson  v.  Cent.  R.  R.  64  Id.  509).     Illinois  (Dyer  v. 
Talcott,  16  111.  300;  Galena,  <fec.   R.  R.  Co.  v.  Fay,  Id.  558).     Indiana  (Maxtield  v. 
Cin.  <fec.  H.  R.  41  lad.  269;  R.  H.  Co.  v.  Dexter,  24  Id.  411;  compare  Scudder  v. 
Crossan,  43  Id.  843).     Iowa  (Greenleaf  v.  111.  Cent.  R.  R.  Co.  29  Iowa,  14,  s.  c.  4  Am. 
R.  181,  arid  cas.  cit.)    Louisiana  (Moore  v.  Shreveport,  3   La.  Ann.  645).     Maine 
(Dickey  v.  Maine  Tel.  Co.  43  Me.  492;.     Michigan  (L.  S.  &  M.  S.  R.  R.  v.  Miller,  25 
Mich.  274;  Michigan  Cent.  R.  R.  v.  Coleman,  28  II.  440,  447).     Mississippi  (Miss. 
Cent.  R.  R.  Co.  v. "Mason,  51  Miss.  234).     North  Carolina  (Doggett  v.  R.  &  D.  R.  R. 
Co.  78  N.  C.  305  ;  and  see  Manly  v.  Wihnington,  Ac.  R.  R.  Co.  74  Id.  655);    and 
Oregon  (Kahn  v.  Love,  3  Oreg.  206).     But  in  some  of  these  States  the  rulings  are 
equally  consistent  with  the  New  York  doctrine.     As  to  Connecticut,  see  next  p. 

4  Murphy  v.  Deane,  101  Mass.  455,  s.  c.  3  Am.  R.  390. 
6  Mayo  v.  Boston  &  Me.  R.  R.  Co.  104  Mass.  137. 

'  Crafts  v.  Boston,  109  Mass.  619.  To  contrast  the  Massachusetts  rule  with  the 
New  York  rule,  compare  this  case  with  Johnson  v.  Hudson  R.  R.  Co.  20  N.  Y.  65, 
and  Hill  v.  New  Haven,  37  Vt.  601. 


596  ACTIONS  FOR  NEGLIGENCE. 

36.  —  the  New  York  rule.1}— By  the  New  York  rule,  it  de- 
pends on  the  circumstances  of  each  case  whether  plaintiff  must  in- 
troduce affirmative  evidence  that  he  was  not  chargeable  with  neg- 
ligence. If  his  own  case  indicates  his  presence  at  the  disaster,  or 
his  conduct,  or  that  of  his  servants,  in  it  or  in  the  occasion  of  it,2  it 
must  appear  that  lie  exercised  such  care  and  vigilance  to  avoid 
danger,  as  prudent  persons  usually  exercise  in  view  of  the  danger 
in  question.  If  this  does  not  affirmatively  appear,  where  the  want 
of  it  contributed  to  the  casualty,8  he  must  be  nonsuited.  If  there 
is  any  evidence  tending  to  show  it  was  exercised,  the  question 
must  be  submitted  to  the  jury. 

Under  this  rule,  the  absence  of  contributory  negligence  may 
be  inferred  as  well  from  the  circumstances  of  the  case  as  from 
evidence  directly  establishing  the  fact.4  The  circumstances  may 
be  considered  in  connection  with  the  ordinary  habits,  conduct,  and 
motives  of  men,5  and  the  fact  that  when  last  seen,  plaintiff  was  pro- 
ceeding in  view  of  the  peril  with  due  care,6  or  was  found  in  a  sit- 
uation indicating  the  exercise  of  such  care,7  will  sustain  a  finding ; 
and  the  jury  may  consider  also  the  inference  of  care  arising  from 
the  instinct  of  self -preservation,8  although  this  is  not  alone  enough. 

On  the  othei  hand,  the  circumstances  of  the  disaster,9  or  the 
character  of  defendant's  delinquency  itself,10  may  be  such  as  to 
prove, prima  facie,  the  whole  issue,  without  any  independent  evi- 
dence to  indicate  the  conduct  of  plaintiff  or  his  servants.11 


1  Observing  the   distinction   stated  in   the  text,   I  understand   the   New  York 
rule  to  be  substantially  applied  in   Connecticut  (compare  Park  v.  O'Brien,  23  Conn. 
839,    3-15 — where  plaintiff  suing  for  a  collision,  in  driving  on   the   highway,  was 
held  bound  to  negative  contributory  negligence — with  Bell  v.  Smith,  39  Id.   211 — 
where  plaintiff,  whose  vessel  was  at  anchor,  was  held  to  have  made  a  prima  facie 
case  by  proving  that  defendant's  vessel  in  attempting  to  pass  collided,  and  that  the 
burden  was  on  defendant  to  show  contributory  negligence) ;  and  in  Vermont  (com- 
pare Trow  v.  Vt.  Central  R.  R.  Co.  24  Vt.  487;  Hill  v.  New  Haven,  37  Id.  501 ; 
Walker  v.  Westfield,  39  Id.  246). 

2  As,  for  instance,  where  the  injury  was  by  a  railroad  train  at  a  highway  cross- 
ing; or  in  stepping  over  skids  on  which,  merchandise  was  being  moved  across  the 
sidewalk  ;  or  a  carriage  collision  when  driving  on  the"  highway.     See  18  Alb.  L.  J. 
pp.  144,  164,  184,  where  the  New  York  cases  are  collected. 

3  Haley  v.  Earle,  30  N.  Y.  208.     To  have  this  effect,  plaintiff's  negligence  must 
have  been  a  proximate,  not  merely  a  remote  cause  of  the  injury.     Austin  v.  N.  J. 
Steamboat  Co.  43  N.  Y.  82.     Compare  Lewis  v.  Baltimore  &  Ohio  R.  R.  Co.  38  Md. 
688.  s.  c.  17  Am.  R.  521. 

4  Cases  above  cited.     Button  v.  Hudson  River  R.  R.  Co.  18  N.  Y.  248;  Johnson 
V.  Hudson  R.  R.  R.  Co.  20  Id.  65 ;  affi'g,  6  Duer,  633. 

6  Johnson  v.  Hudson  R.  R.  R.  Co.  (above). 

6  Greenleaf  v.  111.  Cent.  R.  R.  Co.  29  Iowa,  14,  s.  c.  4  Am.  R.  181. 

I  Johnson  v.  Hudson  R.  R.  R.  Co.  (above). 

8  Morrison  v.  N.  Y.  Central  &  H.  R.  R.  R.  Co.  63  N.  Y.  643,  affi'g  4  Hun,  424; 
and  see  Greenleaf  v.  111.  Cent.  R.  R.  Co.  29  Iowa,  14,  8.  c.  4  Am.  R.  181,  193. 

'  As,  for  instance,  if  the  owner  of  lumber  sues  a  wharfinger  for  negligently  set- 
ting it  on  fire. 

10  Johnson  v.  Hudson  R.  R.  R.  Co.  20  N.  Y.  65,  affi'g  6  Duer,  633. 

II  In  other  words,  the  principle  requiring  plaintiff  to  negative  contributory  negli- 
gence, is  not  characteristic  of  all  actions  for  negligence  as  such ;  but  only  of  those 
where  the  evidence  shows  his  presence  or  conduct,  or  that  of  his  servant  or  agent, 
to  have  been  involved  in  the  disaster  or  its  causes.     This  principle  is  recognized  even 


GENERAL  RULES.  597 

37.  Disproving  contributory  negligence?^ — Evidence  of  the  acts 
and  declarations  of  other  persons  in  the  same  peril,  is  competent 
as  part  of  the  res  gestm,  and  also  as  evidence  of  what  was  deemed 
prudent  by  those  thus  exposed.1    Neither  the  fact  that  the  injured 
person  was  a  careful  and  prudent  person,  nor  that  he  had  been 
careful  on  other  occasions,  is  competent.2    The  fact  that  he  was 
incapable,  by  reason  of  years  or  of  physical  or  mental  infirmity, 
of  taking  the  same  care  as  ordinarily  prudent  persons  take,  is 
competent.3 

The  existence,  and  violation  by  defendant,  of  a  statute  or 
municipal  ordinance,  on  which  plaintiff'  had  a  right  to  rely  for 
safety,  is  competent  as  tending  to  negative  contributory  evidence.- 
Flaintiff  may  show  that  notwithstanding  his  negligence  defendant 
might  by  ordinary  care  have  avoided  doing  the  injury.5 

38.  Contributory  negligence  of  infants.'] — A  child  of  very 
tender  years,6  is  presumptively  incapable  of  care,  and,  therefore, 
not  chargeable  with  negligence.     The  opinion  of  a  qualified  wit- 
ness as  to  the  physical  or  mental  capacity  of  a  child,  is  admissi- 
ble.7    On  the  question  of  a  parent's  negligence  in  protecting  the 

in  Massachusetts.  Parker  T.  Lowell,  1 1  Gray,  353,  356.  In  this  class  of  cases,  which 
includes  nearly  all  those  of  personal  injuries  by  negligence,  except  medical  malprac- 
tice, the  requisite  degree  of  evidence  to  negative  contributory  negligence  increases 
with  the  duty  of  care  required  in  view  of  the  peril  in  question. 

1  TwotTiley  v.  Central  Park,  <fec.  R.  R.  Co.  69  N.  Y.  158;  Galena  R.  R.  Co.  v.  Fay, 
10  III.  558,  668 ;  Mobile,  <fcc.  R.  R.  v.  Ashcraft,  48  Ala.  N.  S.  16. 

*  Morris  v.  Town  of  East  Haven,  41  Conn.  254. 

8  See  Casey  v.  N.  Y.  Central  R.  R.  Co.  6  Abb.  New  Cas.  104  and  note,  116; 
Curtis  v.  Avon,  49  Barb.  148. 

4  Williams  v.  O'Keefe,  9  Bosw.  536 ;  Lax  v.  Mayor,  <fec.  of  Darlington,  40  Law 
Time3,-N.  S. ;  Jetter  v.  N.  Y.  &  Harlem  R.  It.  Co.  2  Abb.  Ct.  App.  Dec.  458;  and 
see  McUrath  v.  N.  Y.  Central.  <fcc.  R.  R.  Co.  63  N.  Y.  522. 

5  Kenyon  v.  N.  Y.  Central,  <fcc.  R.  R.  Co.  6  Hun,  479,  and  cases  cited.     The  doc- 
trine of  comparative  negligence  (that  is,  allowing  plaintiff,  to  recover  if  his  contribu- 
tory negligence  is  slight  as  compared  wi;h  the  negligence  of  defendant),  is  adopted 
in  Georgia  (124  Mass.  44,  60),  and  Illinois  (Chicago  <fc  Alton  R.  R.  Co.  v.  Pondrom, 
61  111.  333,  s.  c.  2  Am.  R.  306).     Not  in  Maryland  (Pittsburgh  &  Connellsville  R.  R. 
Co.  v.  Andrews,  39  Md.  329,  s.  c.  17  Am.  R.  568,  576).     Massachusetts  (124  Moss.  44, 
50). 

*  In  this  case,  two  years.     Prenaegast  v.  N".  Y.  Central,  <fec.  R.  R.  Co.  58  N.  Y. 
652;  and  see  Ihl  v.  42d  St.  R.  R.  Co.  45  Id.  317;  North  Penn.  R.  R.  v.  Mahoney,  67 
Perm.  St.  187.     It  has  generally  been  considered  that  the  question  of  degree  of  in- 
capacity is  to  be  determined  in  each  case,  upon  evidence  of  the  age,  maturity  and 
capacity  of  the  child.     Railroad  Co.  v.  Gladman,  15  Wall.  401 ;  R.  R.  Co.  v.  Stoul,  17 
Id.  657.     Some  recent  cases  draw  lines  of  presumption  at  seven  and  fourteen  years  re- 
spectively, holding  tliat  evidence  of  negligence  of  a  child  under  seven  is  incompetent 
or  unavailing;  (Government  St.  R.  R.  v.  Hanlon,  53  Ala.  70;)  that  as  to  children 
between  that  age  and  fourteen,  there  must  be  evidence  of  the  degree  of  capacity ; 
and  that  ns  to  children  over  fourteen,  there  is  a  presumption  of  ability  to  fake  full 
care  of  self,  which  c  m  only  be  rebutted  by  proof  of  the  want  of  sncli  discretion  and  in- 
telligence as  ia  usual  with  you  hs  of  fourteen.     (Xagle  v.  Alleirhany  Valley  R.  R.  Co. 
6  Weekly  Notes  [Penn.]  610.)     For  the  doctrine  that  the  disability  is  only  relevant 
ti  fie  question  of  the  degree  of  care  which  was  due  from  defendant,  see  Cent.  L.  J. 
103  (1878). 

7  Lynch  v.  Smith,  104  Mass.  62,  s.  c.  6  Am.  R.  188.  As  to  contributory  negli- 
gence of  persons  suffering  from  other  incapacities,  see  Colt  v.  Sixth  Ave.  R.  R.  Co. 
33  Super.  Ct  (J.  A  S.)  189;  Gonzales  v.  N.  Y.  <fc  Harlem  R.  R.  Co.  Id.  67;  Daren- 


598  ACTIONS  FOR  NEGLIGENCE. 

child,  the  jury  may  consider  the  probability  of  care  resulting 
from  maternal  affection.1 

39.  Effect  of  peril  on  witnesses.] — The  law  recognizes  the  tin- 
reliableness  of  the  observation2  and  the  declarations3  of  a  witness 
overcome  with  fear  in  view  of  the  peril.4 

40.  Damages.] — The  mode  of  proving  value  has  already  been 
stated.5 

Where  the  damage  consists  in  a  depreciation  of  pecuniary 
value,  in  an  object  which  had  a  market  value,  a  witness,  qualified 
to  testify  to  the  value,  may  testify  to  the  amount  of  the  damage, 
if  he  first  states  the  facts  forming  the  basis  of  his  opinion,  or  if 
he  is  an  expert,  speaking  on  a  point  requiring  expert  testimony. 
A  witness  should  not  be  allowed  to  testify  directly  to  the  amount 
of  damages  recoverable ;  but  if  he  is  questioned  within  the  limits 
of  the  above  rule,  it  is  no  objection  to  his  testimony  that  it  gives 
the  sum  for  which  the  jury  ought  to  give  a  verdict.6 

41.  Loss  of  earnings.'] — In  the  case  of  personal  injuries,  evi- 
dence of  the  employment  in  which  he  was  engaged,  its  extent 
and  the  rate  of  his  earnings  previous  to  the  injury,  and  the  conse- 
quent loss  arising  to  him  from  his  inability  to  prosecute  it,  is  com- 
petent.7   Uncertain  profits  such  as  those  of  a  merchant 8  or  a  ves- 
sel 9  are  not ;  but  the  question  is,  what  was  usually  paid  for  such 
services  done  for  others  ?     Loss  of  earnings  should  be  specially 
alleged.10    If  the  business  was  illegal  without  license,  he  must 
prove  his  license,  in  'order  to  recover  for  loss  of  income.11 

42.  Suffering  and  impaired  powers.] — Any  physical  injury 
or  physical  suffering n  may  be  considered,  though  not  specially 


port  v.  Ruckman,  37  N.  Y.  568;  affi'g  16  Abb.  Pr.  N.  S.   341,  and  note  in  6  Abb. 
NewCas.  116. 

1  Fallen  v.  Central  Park,  <fcc.  R.  R.  Co.  64  N.  Y.  13,  17,  affi'g  6  Daly,  8. 

2  Tiie  Masten,  1  Brown  Adm.  463. 

3  The  Laura,  14  Wall.  343. 

4  So  the  testimony  of  a  witness  who  was  on  a  moving  vessel,  ns  to  the  absolute 
movements  of  another  vessel,  is  likely  to  be  deceptive.     McNally  v.  Mayor,  5  Ben. 
239;  SPC,  also,  The  Ship  Marcellus,  1  Black,  414;  The  Governor,  Abb.'  A  dm.  108; 
The  Neptunp,  Olc.  483;  Delaware,  die.  Tow-boat  Co.  v.  Starrs,  69  Penn.  St.  36,  41. 

6  Pages  306,  348,  of  this  vol. 

6  Miller  v.  Long  Island  R.  R.  Co.  9  Hun,  194 ;  1  Wharf,.  Ev.  416,  §  450 :  Wells  v. 
Cone,  65  Barb.  685  ;  nnd  see  page  848  of  this  vol.     Compare  Simons  v.  Monier,  29 
Barb.  419 ;  Harger  v.  Edmonds,  4  Barb.  266 ;  Whitmore  v.  Bowman,  4  Greene  (Iowa), 
128. 

7  Nebraska  City  v.  Campbell,  2  Black,  590;   Walker  v.  Erie  Ry.  Co.  63  Barb.  260; 
Grant  v.  City  of  Brooklyn,  41  Barb.  381. 

8  Masterton  v.  Village  of  Mount  "V  ;rnon,  58  N.  Y.  391.     Compare  Chandler  v. 
Allison,  10  Mich.  460;  Hanover  R.  R.  Oo.  V.  Coyle,  55  Penn.  St.  396,  402. 

»  The  R.  L.  May  bey,  4  Blatchf.  439. 

10  Stapenhorst  v."  Am.  Manuf.  Co.  15  Abb.  Pr.  N.  S.  355;  Baldwin  v.  Western  R. 
R.  4  Gray,  333;  Chicago  v.  O'Brennan,  65  111.  160. 

11  Kane  v.  Johnston,  9  Bosw.  154. 

12  Ransom  v.  N.  Y.  <fc  Erie  R.  R.  Co.  15  N.  Y.  415  ;    Curtis  v.  Rochester  <fc  Syra- 
cu^e  R.  R.  Co.  18  Id.  534,  affi'g  20  Barb.  282.      For  instance,  even  aggravation  of 
suffering  in  subsequent  childbirth.    De  Forrest  v.  City  of  Utica,  69  N.  Y.  614. 


GENERAL  RULES.  599 

alleged.1    Mental  suffering,2  also,  as  well  as  mental  impairment,8 
may  be  considered. 

43.  Continuing  effect^ — To  show  the  nature  and  extent  of  the 
injury  and  suffering,  it  is  competent  to  give  evidence  of  their 
continuing  effect  up  to  the  time  of  the  trial,4  and  their  probable 
effect  in  the  future.5 

44.  Testimony  of  the  party. ~] — The  injured  person  may  testify 
directly  to  his  physical  condition,6  ability  to  work,  travel,  &c.,7 
if  his  testimony  is  confined  to  the  facts  within  his  knowledge 
or  consciousness,  as  distinguished  from  matters  of  professional 
skill  and  opinion.     The  injured  member  may  be  exhibited  to  the 
jury.8 

45.  Expressions  of  suffering. ~\ — On  the  question  of  suffering 
at  any  given  time,9  the  declarations,  complaints,  groans,10  exclama- 
tions, gestures,11  and  demeanor,  of  the  injured  person  at  that  time, 
being  manifestations  in  the  nature  of  the  usual  concomitants  and 
expressions  of  pain  and  distress,  may  be  proved  in  his  own  favor.12 


1  Curtiss  v.  Rochester  &  Syracuse  R.  R.  Co.  20  Barb.  282 ;  and  though  the  negli- 

fence  was  not  gross,  and  vindictive  damages  be  not  claimed ;  Morse  v.  Auburn  & 
yracusc  R.  R.  Co.  10  Barb.  621. 

2  Matteson  v.  N.  Y.  Central,  <fcc.  R.  R.  C  >.  62  Barb.  364,  379,  and  cases  cited ;  53  Jf. 
Y.  28.    Contra,  Covington  St.  Ry.  Co.  v.  Packer,  9  Bush  (Ky.),  455,  s.  o.  15  Am.  R.  752. 

3  T.  W.  &  W.  R.  R.  Co.  v.  Baddeley,  54  111.  19,  s.  o.  5  Am.  R.  71. 

4  Sheehan  v.  Edgar,  58  N.  Y.  681,  and  cases  cited. 

6  Caldwell  v.  Murphy,  1  Duer,  233  ;  11  N.  Y.  416 ;  T.  W.  &  W.  R.  R.  Co.  v.  Bad- 
deley, 54  111.  19,  s.  c.  5  Am.  R  71.  As,  for  instance,  that  in  the  ordinary  course  of 
nature  and  without  extrinsic  superinducing  cause,  they  will  probably  be  fatal  (T.  W. 
<fec.  R.  R.  Co.  v.  Baddeley,  54  111.  19,  s.  c.  5  Am.  R.  71);  or  permanent  (Buell  v.  N. 
Y.  Central  R.  R.  Co.  31  N.  Y.  314);  or  affect  the  general  health,  or  that  a  disease  in- 
duced by  them  will  return  (Filer  v.  N.  Y.  Central  R.  R.  Co.  49  N.  Y.  42). 

6  Creed  v.  Hartman.  8  Bosw.  123. 

7  See  People  v.  Tubbs,  37  N.  Y.  586. 

8  Mulhado  v.  Brooklyn  City  R.  R.  Co.  30  N.  Y.  370. 

9  The  competency  of  this  natural  evidence  of  suffering  depends  upon  its  simulta- 
neousness  with  the  suffering,  not  upon  its  simultaneousness  with  the  casualty  which 
caused  the  injury.     Hence  such  manifestations  observed  when  examining  the  per.-:on 
for  the  purpose  of  learning  the  phybical  condition,  are  admissible  (Matteson  T.  X.  Y. 
Central  R.  R.  Co.  85  N.  Y.  487,  s.  p.  in  a  further  decision,  62  Barb.  364);  even  though 
after  the  commencement  of  the  action  (Murphy  v.  N.  Y.  C.  R.  R.  Co.  66  Barb.  125,  130; 
Kent  v.  Lincoln,  32  Vt.  591,  597;  Barber  v.  Merriam.  11  Allen,  :522),  but  the  lapse  of 
time  affects  the  cogency  of  the  evidence,  and  suspicion  of  feigning  may  render  it 
worthless.      This  is  a  question  for  the  jury.     But  to  reduce  the  effect,  of  defend  nit's 
evidence  that  plaintiff  continued  to  labor  long  after  the  injury,  plaintiff  cannot  prove 
his  declarations  of  suffering  while  laboring.     Reed  v.  N.  Y.  Central  R.  R.  Co.  45  N. 
Y.  674,  overruling  56  Barb.  493. 

Compare  Bacon  v.  Charlton,  7  Cush.  581,  586,  where  the  line  is  drawn  between 
spontaneous  manifestations  of  present  pain,  and  statements  drawn  forth  by  question, 
or  made  with  a  view  to  communicate  information. 

The  same  evidence  is,  of  course,  admissible  in  favor  of  a  parent  plaintiff.  Kcn- 
nard  v.  Burton,  25  Me.  89,  46. 

10  As  to  mode  of  proving  significance  of  inarticulate  cries,  see  People  v.  Messner,  45 
N.  Y.  1,  a  doubtful  authority  on  this  point.     Compare  McKee  v.  .Nelson,  4  Cow.  355. 

11  Bacon  v.  Charlton,  7  Cush.  681,  586. 

»  Caldwell  v.  Murphy,  11  N.  Y.  416;  Werely  v.  Persons,  28  N.  Y.  344;  Baker  v. 
Griffin,  10  Bosw.  140;  Phillips  v.  Kelley,  29  Ala.  628,  634. 

Since  parties  are  now  competent  to  testify,  such  evidence  ia  to  bo  received  with 
caution,  if  the  declarant  is  living.  Reed  v.  N.  Y.  Central  R.  R.  Co.  45  N.  Y.  674. 


600  ACTIONS  FOR  NEGLIGENCE. 

But  this  rule  does  not  justify  receiving  statements  of  past  facts,1 
although  connected  with  such  complaints  or  made  as  the  reason 
of  them ; 2  and  when  such  statements  are  commingled  with  the 
declarations,  and  are  admitted  with  them,  they  are  no  evidence  of 
the  truth  of  what  was  thus  stated.8 

Such  declarations,  if  competent,  may  be  proved  by  any  wit- 
ness who  heard  them ;  but  are  of  greater  weight  if  made  to  and 
proved  by  a  medical  attendant,  than  if  proved  by  an  ordinary 
witness.4 

46.  Opinions  of  witnesses."] — Any  witness  of  ordinary  intelli- 
gence and  powers  of  observation,  who  is  conversant  with  the 
facts,  may  testify  whether  a  person  appeared  sick  or  well ; 5  worse 
or  better  at  one  time  than  another ; '  able  to  work  ; 7  how  far 
able  to  help  himself,  and  at  what  point  requiring  assistance  to  do 
what  was  necessary  to  be  done  ; 8  and  whether  the  attendance  of 
a  physician  was  necessary.9 

An  expert™  may  testify  to  his  opinion  as  to  the  condition  of 
the  person,  the  nature,  cause,11  curableness,13  probable  continuance,13 
and  probable  result 14  of  the  injury,  and  the  mode  and  effect  of 
medical  treatment.15  If  the  witness  speaks  from  personal  exam- 
ination, his  opinion  must  be  derived  from  his  examination,  and 
not  dependent  on  what  was  narrated  to  him  by  the  attendants,18 
and  he  should  state  the  facts  upon  which  he  bases  his  opinion.17 
He  may  state,  as  a  part  of  the  facts  on  which  his  opinion  is 
founded,  statements,  which  the  sufferer  made,  of  his  own  condition 
to  the  witness,  for  the  purpose  of  receiving  his  professional  ad- 


1  Page  v.  N.  T.  Central  R.  R.  Co.  6  Duer,  623 ;  Indianapolis,  &c.  R.  R.  Co.  v.  An- 
thony, 43  Ind.  183.  Whether  complaining  of  sleeplessness  is  a  statement  «>f  past  fact 
within  the  rule,  compare  Taylor  v.  Grand  Trunk  Ry.  48  N.  H.  304;  Cleveland  v.  N. 
J.  Steamboat  Co.  5  Hun,  523,  529. 

s  See  Tilson  v.  Terwilliger.  r>6  N.  Y.  273 ;  People  v.  Davis,  Id.  96. 

3  People  v.  Williams,  8  Park.  Cr.  84,  100. 

4  Howe  v.  Plainfield,  41  N.  H.  135 ;  Perkins  v.  Concord,  <fec.  R.  R.  44  Id.  223. 
'Paragraph  13. 

6  Parker  v.  Boston,  <fec.  Co.  109  Mass.  449. 
'Id. 

8  Sloan  v.  N.  Y.  Central  R.  R.  Co.  45  N.  Y.  125. 

9  Chicago,  <fec.  R.  R.  Co.  v.  George,  19  111.  510,  616. 

10  See  n«>te  10  on  p.  116,  and  following  notes. 

11  Compare  People  v.  Rector,  19  Wend.  569;    People  v.  Bodine,  1  Den.  281,  311; 
Gardiner  v.  People,  6  Park.  Cr.  615  ;  Kennedy  v.  People,  39  N.  Y.  245,  s.  c.  f>  Abb. 
Pr.  N.  S.  147;   Roberts  v.  Johnson,  58  N.  Y.  613,  affi'g  37  Super.  Ct  (5  J.  <fc  S.)  157. 
New  Orleans,  <tc.  Co.  v.  Albritton,  38  Miss.  242,  273. 

12  Matteson  v.  N.  Y.  Central  K.  R.  Co.  35  N.  Y.  487. 

13  Buell  v.  N.  Y.  Central  li.  R.  Co.  81  N.  Y.  314.     Although  he  does  not  remember 
the  particulars  of  the  injury,  or  of  the  treatment  he  first  prescribed.      Rowell  v. 
Lowell,  11  Gray,  420. 

14  Briant  v.  trimmer,  47  N.  Y.  96 ;  T.  W.  <fe  W.  R.  R.  Co.  v.  Baddeley,  54  111.  19, 
e.  c.  5  Am.  R.  71. 

15  Barber  v.  Merriam,  11  Allen,  322. 

16  Page  117  of  this  vol.  note  I,  an  I  see  Lund  v.  Tyngsborough,  9  Cash.  36. 

17  Wendell  v.  Mayor,  <fcc.  of  Troy,  39  Barb.  329,  affi'd  in  3   Abb.  Ct  App.  Dea 
MS. 


GENERAL  RULES.  601 

vice ;  *  but  narratives  of  a  past  fact  are  not  thns  admissible,2  unless 
made  in  such  close  connection  with  the  fact  as  to  form  part  of  the 
res  gestce?  If  the  witness  does  not  speak  from  personal  examina- 
tion, the  question  must  be  hypothetical,  based  either  upon  the 
hypothesis  of  the  truth  of  all  the  evidence  given  in  the  case,  or 
upon  an  hypothesis  specially  framed,  of  certain  facts,  within  the 
limits  of  the  evidence,  assumed  to  be  proved.4 

47.  Plaintiff's  family  and  circumstances.'] — Evidence  of  the 
number  of  plaintiff's  family,  his  habits,  industry  and  economy,  is 
inadmissible 5     So  of  his  poverty,6  except,  perhaps,  where  exem- 
plary damages  are  recoverable.7 

48.  Defendant's  wealthJ] — Evidence  of  defendant's  wealth  is 
not  competent,  directly  or  indirectly.8 

49.  Exemplary  damages.'] — To  justify  exemplary  damages, 
there  should  be  evidence  of  gross  negligence  amounting  to  reck- 
lessness, or  to  indifference  to  the  dangers  and  consequences  to 
others.9 

50.  Action  for  causing  death. ,] — The  mode  of  proving  the 
family  relation  has  been  already  stated.10     The  burden  of  proof  is 
on  plaintiff  to  prove  the  pecuniary  injury  which  he  seeks  to  re- 
cover, and  such  facts  as  enable  the  jury  to  determine  what  would 
be  a  fair  and  just  compensation.11    .Neither  evidence  that  the  next 
of  kin  had  legal  claims  on  the  deceased  for  support,12  nor  any  pos- 
itive evidence  of  actual  pecuniary  loss  is,  however,  essential,1**  even 
to  sustain  a  recovery  of  more  than  nominal  damages,14  unless  the 
age  or  ability  of  the  deceased  is  such  that  no  pecuniary  injury 

11  1  i  *1K 

could  result. 5 


1  Barber  v.  Merriam,  11  Allen,  322. 

8  Cliapin  v.  Marlborou-rh,  9  Gray,  244  ;  Illinois,  <fec.  R.  R.  Co.  v.  Sutton,  42  HL 
438.  Compare  Looper  v.  Bell,  1  Head  (Tenn.)  373,  377. 

3  Hamman  v.  Stowe.  57  Mo.  93. 

<  Filer  v.  N.  Y.  Central,  49  N.  Y.  42 ;  Carpenter  T.  Blake,  2  Lans.  206,  rev*d,  on 
another  ground,  in  50  N.  Y.  696;  Hoard  v.  Peck,  56  Barb.  202,  and  see  p.  117  of 
this  vol. 

5  Penn.  R.  R.  Co.  v.  Books,  57  Penn.  St.  339,  344.     Contra,  Winters  v.  Hannibal, 
<fcc.  R.  R.  Co.  39  Mo.  468. 

6  Sheartn.  <fe  R.  on  Neg.  §  606. 

7  Chicago  v.  O'Brennan.  65  111.  160. 

8  Myers  v.  Malcolm,  6  Hill,  292 ;  Moody  v.  Os^ood,  50  Barb.  628. 

»  Shearm.  «fe  Red  on  Neg.  §  600,  and  see  Caldwell  v.  N.  J.  Steamboat  Co.  47  N. 
Y.  282,  affi'g  56  Barb.  426;  Milwaukee,  <fec.  R.  R.  Co.  v.  Arms,  91  U.  S.  (1  0,-toX 
489,  493;  Clegliorn  v.  N.  Y.  Central  &  Hudson  Hiver  R.  R.  Co.  66  N.  Y.  44. 

lu  Puije  71  of  this  vol.,  and  see  Pennsylvania  R.  R.  v.  Adams,  65  Penn.  St.  499. 

"  Mclntyre  v.  N.  Y.  Central  R.  R.  Co.  37  N.  Y.  287,  s.  c.  35  How.  Pr.  36,  affi'g  47 
Burb.  515. 

14  Barren  v.  Illinois  Central  R.  R.  Co.  1  Biss.  458. 

13  Keller  v.  The  N.  Y.  Central  R.  R.  Co.  2  Abb.  Ct.  App.  Dec.  480. 

14  Dickens  v.  N.  Y.  Central  II.  R.  Co.  1  Abb.  Ct.  App.  Dec.  604. 

15  As  in  case  of  a  child  of  two  years.      Prcndea;ast  v.  N.  Y.  Central,  <fec.  58  N.  Y. 
652.     Compare  O'Mara  v.  Hudson  River  R.  R.  Co.  88  N.  Y.  445;  Mitchell  v.  N.  Y. 
Central  <fe  Hudson  River  R.  R.  Co.  2  Hun,  535. 


602  ACTIONS  FOR  NEGLIGENCE. 

To  show  pecuniary  loss,  evidence  of  the  capacity  of  the  de- 
ceased to  conduct  business  and  make  money/  and  of  what  he 
usually  earned,2  is  proper ;  and,  in  the  case  of  a  parent  rearing 
children,  the  capacity  to  bestow  such  training,  instruction,  and 
education  as  would  be  pecuniarily  serviceable  to  the  children  in 
after  life.3 

The  probable  duration  of  life,  and  the  value  of  an  annuity, 
may  be  shown  by  the  Northhampton  tables,4  or  by  the  testimony 
of  an  expert  in  life -insurance.5  The  opinion  of  a  qualified  wit- 
ness is  competent,  as  to  how  long  the  deceased  would  probably 
have  been  useful  to  his  family.6 

II.   DEFENSES. 

51.  Disproof  of  negligence.'] — If  the  question  of  negligence 
depends  on  the  circumstances  of  the  case,  defendant  may  show 
the  nature  and  character  of  his  business,  in  course  of  which  the 
alleged  negligence  occurred,7  and  any  circumstances  showing  a 
reasonable  necessity  to  act  as  he  did,8  and  that  a  prudent  man 
would  have  acted  as  he  did.9 

52.  Advice.'] — Where  willful  intent  to  do  injury,  or  reckless 
indifference,  is  in  issue,  defendant  may  prove,  in  connection  with 
evidence  of  his  innocence  and  good  faith,  that  he  took  the  opin- 
ion of  competent  advisers  and  acted  on  it.10 

53.  former  acquittal.'] — The  record  of  an  acquittal  of  defend- 
ant, on  an  indictment  for  the  same  act,  is  irrelevant.11 

54.  Plaintiff's  contributory  negligence™] — A  general  denial 


1  Tilley  v.  Hudson  River  R.  R.  Co.  29  N.  Y.  252. 

8  Mclntyre  v.  N.  Y.  Central  R.  R.  Co.  37  N.  Y.  287,  s.  c.  35  How.  Pr.  36,  affi'g 
47  Barb.  515. 

3  Tilley  v.  Hudson  River  R.  R.  Co.  (above). 

4  Sauter  v.  N.  Y.  Central,  &c.  R.  R.  Co.  66  N.  Y.  50,  affi'g  6  Hun,  446.     As  to 
these  tables  and  others  equally  competent,  see  note  at  p.  724  of  this  vol.  •  It  is  not 
essential,  though  usual,  to  show,  as  introductory,  that  the  person  enjoyed  health 
usual  to  one  of  that  age.     Rowley  v.  London,  <fec.  R.  R.  Co.  L.  R.  8  Ex.  221,  s.  c.  6 
Moak's  Eng.  293.     The  widow's  probable  duration  of  life  is  relevant,  but  not  the  pos- 
sibility of  her  marrying  again.     Bait.  R.  R.  v.  State,  33  Md.  542,  554. 

6  Rowley  v.  London  <fe  N.  W.  Ry.  Co.  (above).  It  is  not  essential  thnt  the  witness 
be  an  actuary.  It  is  enough  that  he  testify  that  he  has  experience  in  the  business  of 
life  insurance, — for  instance  as  an  accountant  (Id.).  A  life  insurance  agent  of  six 
months'  experience  is  not  competent.  Donalson  v.  R.  R.  18  Iowa,  280,  291. 

6  Pennsylvania  R.  R.  Co.  v.  Henderson,  51  Penn.  St.  315,  320. 

I  Philadelphia  &  Reading  R.  R.  Co.  v.  Evin  Supreme  Ct.  Pa.  March,  1879,  8  Re- 
porter, 153.     See  paragraph  22. 

8  Elliot  v.  Steamboat  James  Robb,  12  La.  Ann.  12. 

9  Burkett  v.  Bond,  12  111.  87. 

10  Sherman  v.  Kortright,  52  Barb.  267.  Perhaps  such  evidence  is  proper  wherever 
it  does  not  affirmatively  nppe.ir  that  plaintiff  claims  only  actual  damages.  Com- 
pare Furth  v.  Foster,  7  Robt.  484,  and  Yates  v.  N.  Y.  Central,  <fcc.  R.  R.  Co.  67  N. 
Y.  100. 

II  2  Whart.  Ev.  §  776,  citing  Cottingham  v.  Weeks,  54  Geo.  275. 
18  As  to  the  burden  of  proof,  see  paragraphs  33-36. 


DEFENSES.  603 

admits  this  defense.1  Evidence  of  plaintiffs  previous  knowledge 
of  the  defect  which,  caused  the  injury  he  might  have  avoided,  is 
competent,  but  not  conclusive.2  Intoxication  at  the  time  of  ex- 
posure to  the  peril  is  competent,3  but  not  conclusive.4  Intoxica- 
tion at  other  times,  though  habitual,  is  not  competent.5  The  in- 
toxication may  be  proved  by  opinions  of  eye  witnesses,6  but  not 
by  declarations  of  a  third  person,  not  made  as  part  of  the  res 
gestce?  Evidence  that  plaintiff  had  admitted  that  he  was  in  fault; 
is  not  necessarily  conclusive  against  him.8 

Gross  negligence  in  respect  of  treatment  or  conduct,  which 
retarded  recovery,  is  competent  on  the  question  of  damages.9 
Where  there  is  evidence  of  negligence  in  this  respect,  plaintiff 
may  show  that  he  acted  under  the  advice  of  a  competent  physi- 
cian, for  the  purpose  of  showing  that  he  acted  in  good  faith,  and 
used  proper  care.10 

55.  Plaintiff's  conduct  illegal.'} — Defendant  cannot  set  up  the 
separate  or  distinct  wrongful  act  of  plaintiff,  done  not  to  himself 
nor  to  his  injury,  and  not  necessarily  connected  with,  or  leading 
to,  or  causing  or  producing  the  wrongful  act  complained  of.11     Il- 
legality, when  amounting  to   contributory  negligence,  may  be 
shown  under  a  general  denial.12 

56.  Mitigation.] — Where  plaintiff  may  enhance  the  damages 
by  showing  circumstances  of  aggravation,  defendant  may  mitigate 
them  by  showing  circumstances  of  palliation.13 

The  existence  of  a  remedy  against  a  third  person,14  or  even  the 
receipt  of  insurance  against  fire,  accident  or  death,  cannot  be  con- 
sidered in  reduction  of  damages.15 


1  McDonell  v.  Buffum,  31  How.  Pr.  154;  Cunningham  v.  Lyness,  22  Wis.  245, 
250 ;  Indianapolis,  &c.  R.  R.  Co.  v.  Rutherford,  29  Ind.  82. 

8  Frost  v.  Inliab.  of  Waltham,  12  Allen,  85;  Shearm.  &  Red.  on  Keg.  §  414; 
Reed  v.  Northfield,  13  Pick.  94. 

3  Barker  v.  Savage,  1  Sweeny,  2S8. 

4  Shearm.  &  Red.  on  Neg   §  487. 
6  Barker  v.  Savage  (above). 

•  People  v.  Eastwnod,  14  N.  Y.  562,  affi'e;  3  Park  Cr.  25. 
'  Chicago,  <fec.  R.  R.  Co.  v.  Bell.  70  111.  102. 

8  Zemp  v.  Wilmington,  <fec.  R.  R.  Co.  9  Rich.  (S.  C.)  L.  84. 

•  But  see  23  Am.  R.  21,  note. 

10  Lyons  v.  Erie  Ry.  Co.  57  N.  Y.  489 ;  Oilman  v.  Deerfield,  15  Gray,  577. 

11  Sutton  v.  Town  of  Wanwatosa,  29  Wis.  21,  s.  c.  9  Am.  R.  534.     Thus  traveling 
on  Sunday,  in  violation  of  the  Sunday  law,  docs  ;iot  contribute  to  a  disaster  caused 
by  a  defect  in  the  highway  or  vehicle,     Id  ;  Carroll  v.  Staten  Island  K.  R.  C'o.  58  N. 
Y.  126,  and  see  Baker  v.  Portland,  58  Me.  199,  s.  c.  4  Am.  R.  274 ;  Steele  v.  Bnckhardt, 
104  Mass.  59,  B.  c.  6  Am.  R.  191,  and  cases  cited.     Contra,  Johnson  v.  Town  of  Iras- 
burijh,  47  Vt.  28,  s.  c.  19  Am.  R.  Ill,  and  see  cases  cited  in  18  Alb.  L.  J.  84,  and  see 
18  Id.  163. 

1J  Jones  v.  Andover,  10  Allen,  18. 
18  Millard  v.  Brown,  85  N.  Y.  297. 

14  Nims  v.  Mayor,  <fcc.  of  Troy,  69  N.  Y.  500,  affi'g  8  Supm.  Ct.  (T.  <fc  C.)  5. 

15  Lansing  v.  Stone,  37  Barb.  15,  s.  c.  14  Abb.  Pr.  199. 


CHAPTEE   XXXII. 

ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

1.  The  undertaking  to  carry.  3.  Damages. 

2.  Burden  of  proof  as  to  cause  of  error. 

1.  The  undertaking  to  carry.'] — The  original  dispatch  delivered 
to  the  operator  is  the  primary  evidence  and  must  be  produced, 
or  be  accounted  for,  to  let  in  secondary  evidence.1    Evidence  that 
plaintiff  did  not  read  the  conditions  at  the  head  of  the  paper 
signed  by  him  is  unavailing.2 

2.  JSurden  of  proof  as  to  cause  of error. .] — In  the  absence  of 
special  conditions,  plaintiff  makes  a  prima  facie  case  by  proving 
(1.)  The  undertaking  to  carry, — shown  by  delivery  of  the  message 
to  the  apparently  proper  clerk,3  and  payment  of  charges,  if  pre 
paid  ;  (2.)  A  default,  apparently  due,  not  to  the  nature  of  the 
electric  telegraph,  but  to  want  of  ordinary  care — such  as  non- 
delivery,4 or  misdelivery,6  and  (3.)  Damages. 

If  the  error  apparently  resulted  from  the  risks  and  contingen- 
cies peculiar  to  the  nature  of  the  telegraph,  plaintiff  may  recover 
if  the  evidence  will  sustain  an  inference  that  it  resulted  from 
negligence  or  other  default  on  part  of  defendants.8 

N  ot withstanding  the  usual  condition,  evidence  of  gross  negli- 
gence or  willful  misconduct  is  competent ; 7  but  an  offer  to  prove 
"  negligence,"  is  not  enough.8 

3.  Damages.'] — To  recover  damages  beyond  the  price  paid 
for  transmission,  there  must  be  evidence,  from  the  face  of  the 
message  or  otherwise,  from  which  it  may  be  inferred  that  defend- 
ants or  their  servant  had  notice  that  other  and  further  loss  might 
occur  from  a  breach  of  the  undertaking.9 

1  Western  Union,  <tc.  Co.  v.  Hopkins,  49  Ind.  224.. 

2  Grinnell  v.  Western  Union  Co.  1 13  Mass.  299,  s.  c.  1 8  Am.  R.  485  ;  Breese  Y.  U.  S. 
Tel.  Co.  48  N.  Y.  139,  s.  c.  8  Am.  R.  526  ;  and  see  p.  290  of  this  vol.     But  compare 
Tyler  v.  West.  Un.  Co.  60  111.  421,  s.  c.  14  Am.  R.  38  ;  and  Dig.  to  Am.  R.  pp.  774-7. 

3  See  pages  40,  275-480  of  this  vol. 

4  W.  U.  TeL  Co.  v.  Graham,  1  Col.  T.  230. 

6  Baldwin  v.  U.  S.  Tel.  Co.  45  N.  Y.  751,  s.  c.  1  Allen's  Tel.  Cas.  613.  Or 
stoppage  at  a  way  office.  U.  S.  TeL  Co.  v.  Wenger,  55  Pa.  St.  262 ;  W.  U.  Tel.  Co.  v. 
Fontaine,  58  Geo.  433. 

6  Whether  the  burden  ia  on  plaintiff  to  show  this,  or,  in  the  present  state  of  the 
art,  on  the  defendants  to  explain  the  cause  of  error,  is  disputed.    For  the  former  view 
see,  Baldwin  v.  U.  8.  Tel.  Co.  (above);  Sweetland  v.  Illinois,  <fec.  Co.  27  Iowa,  433, 
8.  c.  1  Am.  R.  285.     For  the  latter,  see  Bartlett  v.  West.  Un.  Co.  62  Me.  209,  s.  c.  16 
Am.  R.  437 ;  Rittenhouse  v.  Independent  Line,  44  N.  Y.  263,  affi'g  1  Daly,  474  ;  Edw. 
on  B.  §  489 ;  Shearm.  «fe  R.  §  559 :  Turner  v.  Hawkeye,  41  Iowa,  458,  s.  c.  20  Am.  R. 
605 ;  Western  Union  Co.  v.  Tyler,  74  111.  168,  s.  c.  24  Am.  R.  279. 

7  Breese  v.  U.  S.  TeL  Co.  48  N.  Y.  141,  and  cises  cited;  s.  c.  8  Am.  R.  526. 

8  Grinnell  v.  Western  Union  Co.  113  Mas".  299,  s.  c.  19  Am.  R.  485. 

»  Baldwin  v.  U.  S.  Tel.  Co.  (above) ;  McColl  v.  West  Un.  Co.  7  Abb.  N.  C.  note. 

[604] 


CHAPTEE   XXXIII. 


ACTIONS  BY  AND  AGAINST  SHERIFFS,  CONSTABLES  AND  MARSHALS. 


1.  Official  character  and  acts. 

2.  Officer's  action  against  receiptor. 
S.  Officer's  action  for  conversion  or 

trespass. 

4.  — for  price  of  goods  sold. 

5.  —  against  attorney  or  party,  for 

•fees. 

6.  Action  against  officer,  for  failure 

to  serve  or  collect  process. 

7.  —  defenses. 

8.  Action  for  storage. 


9.  Action  for  loss  of  property  from 

custoily. 

10.—  for  failure  to  pay  over. 
11.—  for  taking   insufficient  secur- 
ity, or  as  bail. 

12.  —  for  escape. 

13.  —  defenses. 

14.  —  for  failure  to  return. 

15.  —  for  false  return. 

16.  Admissions,     declarations,     and 

conduct  of  deputies,  <fec. 


1.  Official  character  and  acts.'] — The  general  rules  have  been 
already  stated.1 

2.  Officer's  action  against  receipior.'] — The  rules  governing 
the  mode  of  proving  the  contract  are  elsewhere  stated.2    Defend- 
ant's refusal  to  deliver  is  evidence  of  a  conversion.3 

The  receiptor  is  estopped  from  showing  that  the  property  be- 
longed to  himself 4  or  to  a  third  person,5  or  that  the  property 
not  accounted  for  was  less  than  the  value  fixed  upon  it  by  the 
receipt,6  or  that  the  levy  was  excessive.7  But  he  may  show 
fraud  or  gross  mistake  in  these  respects,8  or  a  re-delivery.9 
Otherwise  he  is  discharged  only  by  act  of  God,  or  the  public 
enemy.10 

3.  Officer's  action  for  conversion  or  trespass.] — The  process, 
with  plaintiff's  return,  is  evidence  of  levy ; n  and,  witli  proof  of 
possession  or  of  the  judgment,12  is  sufficient  to  show  his  title. 

The  consent  of  the  officer  to  the  taking  of  the  property  is  a 
bar  to  an  action  in  his  own  name.13 


1  Chapter  VII,  ACTIONS  BY  AND  AGAINST  PUBLIC  OFFICERS. 

*  Chapter  XXX,  ACTIONS  AGAINST  BAILEES,  AGENTS,  <fcc. 
«I)ezell  v.  Odell,  3  Hill.  215. 

4  Cornell  v.  Dakin,  38  N.  Y.  253,  and  cases  cited.    (Except,  perhaps,  in  mitigation 
of  damages  in  some  cases.     Bursley  v.  Hamilton,  15  Pick.  40.) 
6  Id. 
•Id. 

I  Dczoll  v.  Odell,  3  Hill,  215. 
8  Id. 

•  Clark  v.  Weaver,  17  Hun,  481. 
10  Cornell  v.  Dakin,  88  N.  Y.  253. 

II  Page  19?  ;  Williams  v.  Horndon,  12  B.  Mon.  484. 

19  Spoor  v.  Holland,  8  Wend.  445  ;  Pryne  v.  Westfall,  3  Barb.  496. 
13  Earl  v.  Coup,  16  Wend.  562,  570. 

[605] 


606  ACTIONS  BY  AND  AGAINST   SHERIFFS,   Ac. 

4.  — for  price  of  goods  sold."] — The  judgment,  as  well  as  the 
process,  should  be  proved.1 

5.  —  against  attorney  or  party,  for  fees.'] — The  judgment  on 
which  process  was  issued  is  competent  evidence  of  its  own  exist- 
ence ; 2  but  not  of  the  performance  of  services  recited  in  it,3  un- 
less the  record  was  the  act  of  defendant, — as  may  be  the  case 
with  a  judgment-roll  in  a  court  of  record  under  the  new  proce- 
dure.4    The  liquidation  of  the  fees  by  legal  taxation  by  the 
proper  officers,  although  by  a  certificate  made  after  the  action 
was  brought,  is  conclusive  evidence  as  to  the  amount.5 

6.  Action  against  officer,  for  failure  to  serve  or  collect  process. .] 
— The  existence  of  the  judgment  should  be  proved;6  and,  if  it 
be  a  justice's  judgment,  the  jurisdiction  of  the  subject-matter 
and  the  person ; 7  its  regularity  need  not.8 

If  the  process  was  a  summons  for  commencement  of  an  action, 
plaintiff  must  give  prima  facie  evidence  that  he  had  a  cause  of 
action  ;  and  for  this  purpose  such  evidence  as  would  be  compe- 
tent against  the  debtor, — for  instance,  the  debtor's  admission, — 
is  competent  against  the  officer.9 

The  issuing  of  the  process  is  shown  by  proof  of  the  authenti- 
cation; and  the  delivery  to  the  officer  may  be  shown  by  parol,  or 
in  a  case  within  the  statute,10  by  proof  of  leaving  at  his  office,  or 
in  case  of  execution,  by  his  memorandum  thereon.11  If  the  pro- 
cess has  not  been  returned,  it  should  be  produced,  or  its  absence 
accounted  for,  and  secondary  evidence  given.  If  returned,  it  is 
proved  by  a  certified  copy.13 

Some  evidence  is  necessary  tending  to  show  his  ability  to  exe- 
cute the  process, — such  as  that  he  knew  or  ought  to  have  known 
that  the  one  proceeded  against  was  within  his  precinct,  or  that 
goods  which  he  might  have  seized  were  owned  by  or  in  posses- 
sion of  the  debtor.13  Some  evidence  of  his  neglect  is  necessary,14 
though  very  slight  evidence  suffices  for  a  prima  facie  case.15 

7.  —  defenses.'] — Existence  of  property  being  shown  by  plaint- 

1  2  Whart.  Ev.  §  828,  citing  Gaskell  v.  Morris,  7  Watts  <fe  P.  32.     For  the  modo 
of  proof,  see  Chapter  XXIX.     For  mode  of  proving  auction  sales,  p.  327. 
4  Reynolds  v.  Brown,  15  Barb.  24. 

3  Id. 

4  See  p.  644  of  this  vol.,  note. 

5  Birkbeck  v.  Stafford,  14  Abb.  Pr.  285,  s.  c.,  less  fully,  in  23  How.  Pr.  236. 
«  See  Chapter  XXIX. 

1  Westbrook  v.  Douglass,  21  Barb.  602;  Lawton  v.  Erwin,  9  Wend.  233;  Cornell 
V.  Barnes,  7  Hill,  85. 

8  State  v.  Miller,  48  Mo.  261. 

9  Greenl.  Ev.  526,  §  584. 

10  2  N.  Y.  R.  S.  285  (3  Id.  6  ed.  447),  §§  56,  57 ;  Sherman  v.  Conner,  16  Abb.  Pr. 
N.  S.  396 ;   Manning  v.  Keenan,  9  Hun,  686. 

11  2  N.  Y.  R.  S.  364  (3  Id.  6  ed.  623),  §  10  ;  tf.  Y.  Code  Civ.  Pro.  §  1363  ;  2  N.  Y.  R. 
S.  440,  §  75  (3  Id.  6  ed.  724);  N.  Y.  Code  Civ.  Pro.  §  100;  Wardwell  v.  Patrick,  1 
Bosw.  4d9. 

12  2  Greenl.  Ev.  625,  §  584. 

"  2  Greenl.  Ev.  525,  §  584.     See  N.  Y.  Code  Civ.  Pro.  §  103. 

MPa<re  198  of  this  vol. 

15  2  Greenl.  Ev.  625,  §  684. 


ACTIONS  BY  AND   AGAINST   SHERIFFS,   <fcc.  607 

iff,  it  is  for  defendant  to  Bhow  inability  to  collect  by  due  dili- 
gence.1 General  repute  that  goods  in  defendant's  possession  did 
not  belong  to  him  is  not  alone  competent.8  The  fact  of  exemp- 
tion from  execution,  if  available,3  must  be  proved  by  defendant.4 
Defendant  is  estopped  from  showing  that  his  receiptor  proved  to 
be  the  true  owner.  When  sued  for  not  applying  to  an  execution 
goods  levied  on  under  a  provisional  attachment,  he  is  not  estopped 
by  the  levy  alone  from  proving  that  they  were  not  the  property 
of  the  debtor.6  .The  value  of  goods  levied  on  and  not  sold  (if  not 
stated  in  the  return),  may  be  snown  in  the  usual  manner  of  prov- 
ing value.7  On  the  question  of  the  sufficiency  of  a  levy,  the 
amount  produced  at  the  sale  is  ordinarily  the  best  evidence ;  and 
opinions  of  witnesses  are  not  competent,8  unless  it  may  be  as 
showing  good  faith  in  refraining  from  oppression. 

If  plaintiff's  instructions9  or  assent10  to  neglect  or  delay  are 
relied  on,  they  must  be  shown  by  clear  evidence,  though  express 
assent  is  not  essential.11  Mere  omission  to  object  is  not  alone 
evidence  of  assent  to  previous  conduct.12  Ambiguous  instructions, 
though  in  writing,  may  be  explained  by  parol  evidence  of  the 
circumstances  under  which  they  were  given.13 

Insolvency  of  the  debtor  is  competent  in  mitigation ; 14  but  the 
burden  is  on  defendant  to  show  it.15  The  evidence  must  be  di- 
rected to  the  time  of  his  duty.16  Evidence  of  the  debtor's  present 
ability  is  not  competent  in  mitigation.17 

8.  — for  storage.'] — A  deputy's  authority  to  bind  the  sheriff 
by  a  contract  for  storage  is  presumed  ;  and  the  burden  is  on  the 
sheriff  to  charge  plaintiff  with  notice  of  a  limitation  of  this  au- 
thority.18 The  sheriff's  return  stating  the  claim  for  storage  is 
evidence  of  his  admission  of  its  existence,  but  not  of  the  amount 
due.19  The  amount  may  be  proved  as  in  other  cases.20 


1  Bank  of  Rome  v.  Curtis,  1  Hill,  275. 

s  Whitsett  v.  Slater,  23  Ala.  626. 

8  Compare  Baker  v.  Brintnall,  52  Barb.  188,  s.  c.  5  Abb.  Pr.  N.  S.  253;  and 
People  ex  rel.  Gnston  v.  Campbell,  40  N.  Y.  133. 

4  Bonnell  V.  Bowman,  53  111.  460. 

6  People  ex  rd.  Knapp  v.  Reeder,  25  N.  Y.  302  ;  Penobscot  Boom  Corporation  v. 
Wilkins,  27  Me.  345;  and  see  paragraph  2. 

6  Fuller  V.  Holdcn,  4  Mass.  498 ;  Penobscot  Boom  Corporation  v.  Wilkins,  27  Me. 
345  ;  and  see  West  v.  Tuttle,  11  Wend.  639. 

1  Campbell  v.  Pope,  Hcmpst.  271 ;  and  see  pages  308-311  of  this  vol. 

8  French  v.  Snyder,  30  111.  339. 

9  Tuttle  v.  Cook,  15  Wend.  "275. 

10  Moore  v.  Westervelfc,  1  Bosw.  357. 

11  Doty  v.  Turner,  8  Johns.  20 ;  Cornell  v.  Cook,  7  Cow.  310,  313. 
11  Moore  v.  Westervelt,  2  Duer,  59. 

"  Ely  V.  Adams,  19  Johns.  313. 
u  Dininny  v.  Fay,  88  Barb.  18. 

15  Murphy  v.  Troutman.  6  Jones  N.  C.  L.  379.      And  plaintiff  may  rebut  this, 
Humphrey  v.  Hathorn,  24  Barb,  273,  280;  and  see  French  v.  Snyder,  30  HI.  839. 

16  See  Bank  of  Rome  v.  Curtis,  1  Hill,  275. 
"  Id.;  Tyler  v.  Ulmer,  12  Mass.  16a 

18  Hamsey  v.  Strot>ach,  52  Ala.  613. 

19  Fitchburgh  R.  R.  Co.  v.  Freeman,  12  Ofrav.  40 I. 
80  Id. 


608  ACTIONS  BY  AND  AGAINST  SHERIFFS,  <fca 

9.  —  for  loss    of  property  from   custody.'] — The    burden 
of  proof  is  the  same  as  in  an  action  against  a  warehouseman.1 
Mere  proof  of  delay  to  remove  the  goods  is  not  enough  without 
showing  negligence.3 

10.  — for  failure  to  pay  over.'] — The  levy,  and  receiving  the 
money,  may  be  proved  by  parol.3    The  dockets  and  records  of  the 
court   to   which  the   officer  belonged,  are  competent   evidence 
against  him  to  show  that  money  has  been  received  by  him  and 
his  sureties  or  his  deputies,  upon  its  process.4     The  return,  if 
•proved,  is  conclusive  on  the  officer.5  Jurisdiction  of  the  action  be- 
ing shown  or  presumable,6  the  officer  cannot  object  to  irregularity 
in  the  judgment  or  execution.'    An  appraisement  participated  in 
by  the  officer,  and  certified  in  his  return,  is  competent  against 
him.8 

11.  —  for  taking  insufficient  security^ — The  writ,  and  a  sub- 
sequent judgment  thereon  against  the  debtor,  are  sufficient  prima 
facie  evidence  of  the  original  indebtedness.9    The  officer's  return 
indorsed,  is  sufficient  evidence  of  the  delivery  of  the  process  to 
him.10 

The  mode  of  proving  insolvency,  or  pecuniary  responsibility 
or  credit,  or  repute,  is  stated  in  the  next  chapter.  It  is  enough  to 
show  negligence,  without  proving  willful  wrong.11  The  declara- 
tions of  the  bail,  are  competent  against  the  sheriff  to  show  his  in- 
sufficiency ;  for  instance  his  repeated  promises  to  pay  creditors 
and  his  defaults.12  In  the  absence  of  evidence  of  sufficiency  of 
the  bail,  it  is  not  necessary  for  plaintiff  to  show  proceedings  taken 
against  them.13  In  the  absence  of  evidence  as  to  the  responsibility 
of  the  original  debtor,  the  burden  is  on  the  sheriff  to  show  that 
he  had  no  property,  if  that  is  relied  on  in  mitigation.14  It  is 
enough  for  the  officer  to  show  that  the  bail  were  at  the  time  appar- 
ently in  good  credit,  and  responsible  for  the  amount.15  Evidence 
of  actual  inquiry  is  not  essential.16  Evidence  that  they  stated  to 
the  officer  at  the  time,  that  they  were  responsible,  is  not  enough.17 


1  Witowski  v.  Brennan,  41  Super.  Ct.  (J.  <fe  S.)  284. 

I  Moore  v.  Westervelt,  21  N.  Y.  103,  rev'g  1  Bosw.  357. 
8  Bryant  v.  Dana,  8  111.  343. 

4  \Villiamsv.  United  States,  1  How.  290,  8.  c.  17  Pet.  144. 

6  Sheldon  v.  Payne,  7  N.  Y.  453;  Tiffany  v.  Johnson,  27  Miss.  227;  Denton  v. 
Livingston,  9  Johns.  96. 

'  Page  544  of  this  vol. 

7  Nutzenholster  v.  State,  37  Ind.  457;  Germon  v.  Swartwout,  3  Wend.  282;  Wai- 
den  v.  Davison,  15  Wend.  575. 

8  Sanborn  v.  Baker,  1  Allen,  526. 

9  Young  v.  Hosmer,  11  Mass.  89. 
10  Blatch  v.  Archer,  Cowp.  63. 

II  Sparhawk  v.  Bartlet,  2  Mass.  188,  197,  199;  Rice  v.  Hosmer,  12  Id.  129. 
12  Gvllim  v.  Scholey,  6  E?p.  100. 

18  Young  v.  Hosmer,  1 1  Mass.  89. 

14  Young  v.  Hosmer,  11  Mass.  89.     Compare  People  ex  re?.  Metcalf  v.  Dikeman,  3 
Abb.  Ct.  App.  Dec.  520;  Beusel  v.  Lynch,  44  JS".  Y.  162,  affi'g  2  Kobt.  448. 
1&  Hindle  v.  Blades,  5  Taunt.  225,  227. 
"Id. 
"  2  Greenl.  Ev.  527,  §  586. 


ACTIONS  BY  AND  AGAINST   SHERIFFS,  Ao.  609 

12.  —  for  escape.1] — In  the  case  of  original  or  mesne  process, 
issued  without  judicial  ascertainment  of  the  fact  and  amount  of 
indebtedness  of  the  original  defendant,  plaintiff  must  give  some 
evidence  thereof.2  Whatever  evidence  would  be  competent  to 
charge  the  original  debtor,  is  competent  against  the  sheriff.8  In 
the  case  of  final  process,  the  judgment  is  sufficient  evidence  of  the 
indebtedness. 

The  process  should  be  produced,  or  its  absence  be  accounted  for 
to  let  in  secondary  evidence.4  Showing  failure  to  return  and  re- 
fusal to  produce  on  notice,  lets  in  secondary  evidence  of  the  writ.5 

The  return  of  arrest  is  conclusive  against  the  officer.6  Absence 
of  a  return  being  accounted  for,  the  arrest  may  be  proven  by 
parol.7 

Under  an  allegation  of  a  voluntary  escape,  plaintiff  may  prove 
a  negligent  escape.8  An  escape  is  presumed  to  be  only  negligent 
in  the  absence  of  anything  to  show  that  it  was  voluntary.9 

The  escape  may  be  proved  by  oral  evidence  that  the  prisoner 
was  not  in  custody.10  The  fact  of  the  prisoner  being  off  the  limits, 
must  be  affirmatively  and  satisfactorily  shown  by  direct  and  pos- 
itive proof.  Nothing  will  be  intended  or  inferred.11  But  evi- 
dence that  he  was  seen  at  large,  is  sufficient,  prima  facie™  If  it 
be  shown  that  the  prisoner  was  in  defendant's  custody  under  the 
process,  a  subsequent  return  of  not  found,  is  evidence  of  the  es- 
cape.13 To  prove  the  debtor  beyond  the  limits,  ineffectual  search, 
and  a  letter  received  from  him,  are  competent.14 

The  damages  are  presumptively  the  amount  of  the  judgment 
or  bail.15  Where  the  judgment  is  not  conclusively  the  measure  of 
damages,16  plaintiff  should  be  prepared  with  evidence  of  actual  loss. 
Declarations  by  the  prisoner,  made  before  escape,  tending  to  show 
that  he  had  property,  are  competent  against  the  sheriff.17 


1  For  definition  of  escape,  see  N.  Y.  Code  Civ.  Pro.  §  155  ;  "Wilckens  T.  Willet,  4 
Abb.  Ct.  App.  Dec.  696. 

2  See  2  Greenl.  Ev.  629,  §  689. 

3  Sloman  v.  Herne,  2  Esp.  695,  LORD  KBOTON.     The  New  York  rule  is  that  de- 
clarations of  the  debtor,  adduced  against  the  sheriff,  must  be  shown  to  have  been 
made  before  escape.     Patterson  v.  Westervelt,  17  Wend.  643,  549.     Contra,  Hart  v. 
Stevenson,  25  Conn.  499,  606,  unless  part  of  the  res  gestce. 

4  Van  Slyck  v.  Taylor,  9  Johns.  146. 

5  Hinman  v.  Brees',  13  Johns.  529;  Dygert  ads.  Crane.  1  Wend.  634. 

*  2  Greenl.  Ev.  629,  §  589.     So  is  a  bond  given  to  the  officer's  predecessor,  re- 
citing the  process  and  custody.     Tallmadge  v.  Richmond,  9  Johns.  86. 

7  Hinman  v.  Brees,  13  Johns.  629. 

8  Bonufous  v.  Walker,  2  T.  R.  126. 

»  Patterson  v.  Westervelt,  17  Wend.  543,  546. 

10  Fairlie  v.  Birch,  3  Campb.  397. 

11  Visscher  v.  Gansevoort,  18  Johns.  496. 
15  Stewart  v.  Kip,  7  Johns.  165. 

"  Bensel  v.  Lynch,  44  N.  Y.  162,  affi'g  2  Robt.  448 ;    Wheeler  V.  Hambright,  9 
Serg.  A  Rawle,  390,  396. 

*Ptr  COWKN,  J.  Patterson  v.  Westervelt,  17  Wend.  543,  649. 

15  Patterson  v.  Westervelt,  17  Wend.  543 ;  State  ex  rel.  Shirk,  50  Ind.  698  ;  Latham 
V.  Westervilt,  26  Barb.  256 ;  but  see  N.  Y.  Code  Civ.  Pro.  §  158,  sub.  1. 

16  As  in  case  of  final  process,  etc.,  under  N.  Y.  Code  Civ.  Pro.  §  158,  sub.  2, 
"  Patterson  v.  Westervelt,  17  Wend.  649. 

39 


610  ACTIONS  BY  AND  AGAINST   SHERIFFS,  <feo. 


13.  —  defenses."] — An  error  or  irregularity  in  the  judgment 
>rocess  is  not  material,  unless  rendering  it  void.1    Even  re- 


13. 

or  process 
versal  of  the  judgment  does  not  necessarily  exonerate  the  officer.3 

A  general  question  as  to  the  manner  of  escape  is  irrelevant, 
unless  counsel  states  an  intention  to  show  facts  which  would  ex- 
cuse the  officer.8  A  voluntary  return  is  not  admissible  under  a 
general  denial.4  In  an  answer  of  voluntary  return,  an  allegation 
that  prisoner  continued  in  custody  to  time  of  suit  brought,  is 
immaterial,  though  put  in  issue.5 

The  sheriff  can  justify  under  a  discharge  by  showing  that  the 
court  had  jurisdiction.  The  regularity  of  the  proceedings  is  not 
material.8  If  the  jurisdictional  facts"  do  not  appear  by  the  reci- 
tals in  the  discharge,  they  may  be  proved  aliunde.1 

As  to  damages, — in  the  case  of  negligent  escape,8  or  of  escape 
from  mesne  process,9  it  is  competent  to  give  in  evidence  the 
circumstances  of  the  debtor,  in  order  to  limit  the  recovery  to 
what  the  plaintiff  has  actually  lost.10  Insolvency  of  the  debtor, 
though  not  pleaded,  may  be  proved  in  mitigation.11  General 
reputation  of  insolvency  is  inadmissible.12 

14.  Action  for  failure  to  return.'] — Plaintiff  is,  prima  facie, 
entitled  to  recover  the  whole  amount  due  on  his  judgment,  upon 
proving  the  judgment,13  the  delivery  of  the  writ  to  the  defendant 
to  be  executed,  together  with  his  neglect  to  return  it.15  The  na- 
ture of  an  action  against  an  officer  for  neglect  to  return  an  exe- 
cution is  sufficient  notice  to  defendant  to  produce  the  execution.16 
That  the  officer  had  sufficient  time  to  proceed  under  the  writ, 
may  be  inferred  from  circumstances.17  It  is  best  to  give  some 
evidence  of  failure  to  return.18  Yery  slight  evidence  is  enough 


1  Jones  v.  Cook,  1  Cow.  300;  Ross  T.  Luther,  4  Cow.  158,  163 ;  Ontario  Bank  v. 
Hallett,  8  Cow.  192.  Compare  Carpeutier  v.  Willet,  1  Abb.  Ct.  App.  Dec.  312. 

8  Smith  v.  Knapp,  30  N.  Y.  581. 

a  Fairchild  v.  Case,  24  Wend.  381. 

4  Rowland  v.  Squior,  9  Cow.  91. 

6  Middle  District  Bank  v.  I  >eyo,  6  Cow.  732. 

6  Cantillon  v.  Graves,  8  Johns.  472 ;  Wiles  v.  Brown,  3  Barb.  37  ;  Bush  v.  Petti- 
bone,  5  Barb.  273. 

1  Bullymore  v.  Cooper,  46  N.  Y.  236,  modifying  2  Lans.  71. 

8  Patterson  v.  Westervelt,  17  Wend.  546,  and  cases  cited. 

»  Compare  N.  Y.  Code  Civ.  Pro.  §  158. 

10  Smith  v.  Knapp,  30  N.  Y.  581,  592.     As  to  the  mode  of  proving:  insolvency,  see 
the  next  chapter.     As  to  the  test  of  pleading,  distinguishing  between  this  action  and 
that  on  the  officer's  liability  as  bail,  compare  Smith  v.  Knapp,  30  N.  Y.  581 ;  Metcalf 
v.  ^tryker,  31  N.  Y.  255;  People  v.  Dikeman,  3  Abb.  Ct.  App.  Dec.  520;  Bensel  v. 
Lynch,  44  N.  Y.  162,  affi'g  2  Robt.  448. 

11  Barnes  v.  Willett,  35  Barb.  514. 

19  Fairchild  v.  Case,  24  Wend.  381.  384. 

13  See,  as  to  the  mode,  Chapter  XXIX;  Cornell  v.  Barnes,  7  Hill,  35. 

14  See  paragraphs  6  and  15. 

15  Pardee  v.  Robertson,  6  Hill,  550. 

16  Story  v!  Patten,  3  Wend.  486 ;  Wilson  v.  Gale,  4  Id.  623. 
11  Wilson  v.  Gale,  4  Wend.  623. 

18  That  this  is  unnecessary  was  held  in  State  v.  Schar,  60  Mo.  893. 


ACTIONS  BY  AND  AGAINST  SHERIFFS,   Ao.  611 

to  shift  the  burden  of  proof.  It  is  not  necessary  to  show  the 
collection  of  money,1  nor  the  existence  of  property  out  of  which 
it  might  have  been  collected ; 2  but  this  may  be  proved  if  alleged.3 

Plaintiff  need  not  show  that  the  debtor  had  property.4  Prima 
facie  the  measure  of  damages  is  the  amount  required  to  be  raised 
by  the  execution ; 5  but  the  officer  may  show  that  the  debtor  had 
nothing  from  which  the  money  could  have  been  made ; 6  or  any- 
thing which  attacks  the  judgment ;  or  shows  that  plaintiff's  in- 
terest is  affected.7 

In  rebuttal  plaintiff  may  show  that  the  debtor  had  property, 
though  this  be  not  alleged.8 

Tardy  return  is  no  defense.9 

15.  — for  false  return.] — The  judgment  must  be  proved ; 10  or, 
in  fhe  case  of  mesne  process,  the  original  cause  of  action  ;u  and 
the  issue,  delivery  and  return  of  the  process.13  The  identity  of 
the  process  is  sufficiently  proved  by  the  officer's  indorsement  on 
it  (made  under  the  statute18)  and  his  return,  and  proof  of  his  acts 
intermediate  these  times,  without  extrinsic  evidence  of  manual 
possession  by  the  officer  at  the  time  of  acting  under  it.14 

A  return  amended  by  leave  of  court,  though  after  action 
commenced,  may  be  read  in  evidence  with  the  same  effect  as  if  an 
original  return.1^ 

JPlaintiff  must  give  some  evidence  of  falsity  ; 16  but  slight  evi- 
dence suffices  to  throw  on  defendant  the  burden  of  proving  its 
truth.17  To  prove  falsity  of  a  return  of  nulla  fiona,  the  debtor's 
possession  of  property  is,  prima  facie  evidence  of  ownership,  until 
the  officer  gives  evidence  of  title,  or  at  least  of  some  adverse 


1  Sloan  v.  Case,  10  Wend.  370. 

*  Pardee  v.  Robertson,  6  Hill,  550. 

8  Stevens  v.  Rowe,  3  Den.  327.     Compare  Ledyard  v.  Jones,  7  N.  Y.  550. 

*  Pardee  v.  Robertson  (above). 

B  Ledyard  v.  Jones,  7  N.  Y.  550. 

«  Dunphy  v.  Whipple,  25  Mich.  10 ;  Swezey  v.  Lott,  21  N.  Y.  481.  For  the  mode 
of  proof,  see  next  chapter. 

1  Wehle  v.  Connor,  69  N.  Y.  546,  549,  rev'g  41  Super.  Ct.  (J.  <fe  S.)  201.  As,  for 
instance,  that  such  interest  was  levied  upon  by  an  attachment,  and  liable  to  be  ap- 
plied otherwise  than  in  payment  to  the  plaintiff,  or  that  plaintiff  has  less  interest 
than  the  face  of  it,  and  has  no  right  to  demand  payment  to  the  full  amount,  or  that 
the  judgment  was  fraudulent  and  void,  that  it  had  been  paid,  assigned,  and  does  not 
belong  to  plaintiff,  or  that  plaintiff  has  directed  the  execution  not  to  bo  returned,  or 
that  it  was  stayed  by  order  of  court.  Id. 

8  Pardee  v.  Robertson,  6  Hill,  550;  Ledyard  v.  Jones  (above);  Humphrey  v.  Ha- 
thorn,  24  Barb.  278. 

»  Brookfield  v.  Remsen,  1  Abb.  Ct.  App.  Dec.  210. 

10  McDonald  v.  Bunn,  3  Den.  45.     Contra,  Blivin  v.  Bleakley,  23  How.  Pr.  126 
As  to  the  mode  of  proof,  see  Chapter  XXIX. 

11  Parker  v.  Fenn,  2  Esp.  477,  n. ;  2  Greenl.  Ev.  531,  §  592. 
Is  See  paragraphs  6  and  12. 

18  Paragraph  6. 

14  Williams  v.  Lowndes,  1  Hall,  578,  697. 

"  People  v.  Ames,  88  N.  Y.  484 ;  Bradford  v.  Read,  2  Sandf.  Ch.  163. 

14  Watson  v.  Brennan,  66  N.  Y.  621,  rev'g  39  Super.  Ct.  (J.  A  S.)  81. 

»  2  GreenL  Ev.  63],  §  592 ;  Holbrook  v.  Brennan,  6  Daly,  60. 


612  ACTIONS  BY  AND  AGAINST  SHERIFFS,  Ac. 

claim.1  To  prove  falsity  of  a  return  of  not  found,  the  fact  that 
the  debtor  did  not  abscond,  but  continued  in  the  daily  exercise 
of  his  usual  occupation,  appeared  publicly  as  usual,  and  was  visible 
to  all  who  came  to  him  on  business,  is  sufficient  evidence  that  he 
could  have  been  arrested.8  To  prove  a  levy,  enough  must  be 
shown  to  make  the  officer  a  trespasser  but  for  the  process.8 

The  judgment  rendered  ineffectual  is  prima  facie  evidence  of 
the  measure  of  damages  / 4  but  it  may  be  met  by  evidence  of  the 
total  inability  of  the  debtor ; 5  not,  however,  by  showing  that  the 
amount  so  directed  to  be  levied  was  not  due  upon  the  judgment.6 

A  levy  made  under  the  process  does  not  conclude  the  officer 
from  showing  that  the  debtor  had  no  title,  and  that  he  abandoned 
the  levy  in  good  faith  on  that  account,7  even  after  plaintiff  had 
indemnified  him.8  An  inquisition  taken  by  the  sheriff's  jury  is 
conclusive  on  the  right  of  property,9  unless  it  be  shown  that  the 
sheriff  did  not  act  in  good  faith,10  or  that  there  was  a  sufficient 
tender  of  indemnity.11 

The  fact  that  the  process  was  voidable  had  the  debtor  chosen 
to  object  is  not  relevant.12  The  sheriff's  knowledge  that  the  re- 
turn was  false,  does  not  alone  aggravate  the  damages.13 

16.  Admissions,  declarations,  and  conduct  of  deputies,  <&c.~\ — 
Against  the  sheriff,  the  admissions  and  declarations  of  one  who 
has  given  him  an  indemnity,  being  the  real  party  in  interest,  are 
admissible.14  So  are  those  of  his  under-sheriff 15  or  deputy,16  if  the 
action  is  for  the  default  of  the  declarant,  or  if  they  were  made 
as  part  of  the  res  gestce  of  an  act  properly  in  evidence,  or  were 
made  within  the  scope  of  the  agency.17  Proof  of  a  person's  being 
deputy-sheriff,  and  of  his  advertising  property  for  sale  under  an 
execution,  as  such,  is  sufficient  to  authorize  evidence  of  his  dec- 
larations, without  proving  the  issuing  and  delivery  of  an  execu- 
tion to  him.18  Whether  the  sheriff  recognized  the  act  of  his  dep- 
uty or  not  need  not  be  shown.19 


1  Magne  v.  Seymour,  5  Wend.  312. 

3  Beckford  v.  Montague,  2  Esp.  475. 

8  Camp  v.  Chamberlain,  5  Den.  198;  and  see  Bond  v.  Willett,  1  Abb.  Ct. 
Dec.  165  ;  Elias  v.  Farley.  2  Id. 

4  Weld  v.  Bartlett,  10  Mass.  472;  Bacon  v.  Cropsey,  7  N.  Y.  195. 
6  Weld  v.  Bartlett  (above). 

6  Bacon  v.  Cropsey  (above). 

1  Lummis  v.  Kasson,  43  Barb.  373. 

8  Id. ;  but  compare  Curtis  v.  Patterson,  8  Cow.  65,  67. 

9  Bayley  v.  Bates,  8  Johns.  139. 

10  Id. 

11  Van  Cleef  v.  Fleet,  15  Johns.  147. 

"  Bacon  v.  Cropsey,  7  N.  Y.  195 ;  Blivin  v.  Bleakley,  23  How.  Pr.  124. 

18  Potter  v.  Lansing,  1  Johns.  216. 

14  Bayley  v.  Bryant,  24  Pick.  198 ;  Rose.  N.  P.  71. 

18  Rose.  N.  P.  74. 

16  Tyler  v.  Ulman,  12  Mass.  163;  1  Greenl.  Ev.  210,  §  180. 

17  Stewart  v.  Wells,  6  Barb.  79. 

18  Stewart  v.  Wells  (above). 

"  Mclntyre  v.  Trumbull,  7  Johns.  35. 


ACTIONS  BY  AND  AGAINST  SHERIFFS,   <feo.  613 

To  prove  instructions  from  the  party  such  as  to  exonerate 
the  sheriff  from  liability  for  acts  of  his  deputy,  it  must  be  shown, 
not  only  that  the  party  directed  the  deputy  to  depart  from  the 
line  of  auty  imposed  by  law,  but  that  the  deputy  followed,  or,  at 
least,  undertook  to  follow  directions  given.1 


1  Sheldon  v.  Payne,  7  N.  Y.  453;  Walden  v.  Daviaon,  15  Wend.  578. 


CHAPTER  XXXIV. 

ACTIONS  FOR  DECEIT  OR  FRAUD. 

1.  Frame  of  tne  action.  9.  Plaintiffs  reliance. 

2.  The  representation.  10.  Damages. 

8.  Liberal  rule  of  evidence :  Cogency.  11.  Oral  evidence  to  vary  writing. 

4.  Falsity.  12.  Testimony  of  the  parties. 

6.  — as  to  solvency,  <fcc.  13.  Declarations  of  conspirators. 

6.  — reason  to  believe  one  insolvent,  <fec.  14.  Defenses. 

7.  Scienter.  15.  —  former  adjudication. 

8.  Intent  to  deceive. 

1.  Frame  of  the  action."] — Plaintiff  cannot  recover  on  proof 
of  a  mere  breach  of  contract,1  even  coupled  with  mistake 2  or 
conversion.3    If  the  complaint  contains  all  the  allegations  neces- 
sary to  authorize  recovery  on  a  breach  of  contract,  and,  also,  all 
those  necessary  to  sustain  a  recovery  for  fraud  and  deceit,  plaint- 
iff cannot  recover  without  proving  the  fraud.4    The  averment  of 
a  contract  may  be  deemed  matter  of  inducement  merely.6    If 
the  deceit  is  proved,  an  allegation  of  conspiracy  unproved  does 
not  necessarily  defeat  the  action.6 

2.  The  representation?'} — The  fraudulent  representation  re- 
lied on  must  be  stated  in  the  complaint.8     Proof  of  it  in  substance 
and  legal  effect,  is  enough.9    If  a  sufficient  fraudulent  repre- 
sentation is  duly  alleged  and  proved,  a  representation  not  specifi- 


1  Barnes  T.  Quigley,  59  N.  Y.  265 ;  Peck  v.  Root,  5  Hun,  547. 
8  Dudley  v.  Scranton,  57  N.  Y.  424. 

3  Sa*ltus  v.  Genin,  3  Bosw.  250. 

4  Ross  v.  Mather,  51  N.  Y.  108,  extended  by  amendment  of  §  549  of  N.  Y.  Code 
of  Civ.  Pro.,  in  1879,  to  all  cases  of  an  allegation  of  fraud  in  contracting  the  liability, 
except,  perhaps,  promises  of  marriage.     Before  that  amendment,  allegations  of  fraud, 
if  incidental,  in  a  complaint,  the  main  scope  of  which  was  a  breach  of  contract, 
might  be  disregarded.    Graves  v.  Waite,  59  N.  Y.  166.    As  to  amending,  see  Crosby 
v.  Watts,  41  Super.  Ct.  (J.  <fe  S.)  208 ;  Saltus  v.  Genin,  8  Abb.  Pr.  253;  Hochstetter 
v.  Isaacs,  14  Abb.  Pr.  N.  S.  235. 

Fraud  not  alleged  may  be  proved  in  avoidance  of  the  effect  of  an  agreement 
proved  by  the  adverse  party.  Claflin  v.  Taussig,  7  Hun,  223. 

6  Elwood  v.  Gardner,  10  Abb.  Pr.  N.  S.  233,  s.  c.  45  N.  Y.  349,  affi'g  9  Abb.  Pr. 
N.  S.  99.  As  to  the  frame  of  the  action  compare  pp.  285  and  339  of  this  vol. 

6  Hay  ward  v.  Draper,  3  Allen,  551. 

1  For  the  distinction  between  actionable  false  representations,  and  promissory 
representations  or  opinions,  Ac.,  see  Sawyer  v.  Prickett,  19  Wall.  146;  Simar  v. 
Canaday,  53  N.  Y.  298.  Compare  Ellis  v.  Andrews,  56  N.  Y.  83 ;  Foster  v.  Swasey, 
2  Woodb.  <fe  M.  217. 

8  Ellis  v.  Andrews  (above).  But  deceit  may  be  proved  by  actions  without  evi- 
dence of  express  words.  Chandelor  v.  Lopus,  1  Smith's  L.  Cas.  299,  320,  and  cases 
cited. 

»  Craig  v.  Ward,  1  Abb.  Ct.  App.  Dec.  454,  s.  c.  3  Abb.  Pr.  N.  S.  235 ;  3  Keyes, 
387,  affi'g  36  Barb.  377. 

[614] 


ACTIONS   FOR   DECEIT   OR   FRAUD.  615 

cally  alleged  may  also  be  proved.1  A  variance  by  proving  only 
one  of  several  representations  alleged,2  if  the  one  alleged  and 
proved  be  sufficient  to  maintain  the  action,  is  not  material. 

Fraud  by  defendants'  agent,3  or  by  one  of  a  firm,  defendants,4 
when  it  will  sustain  the  action,  is  admissible  under  an  allegation 
of  fraud  by  defendants.5  Against  a  co-defendant,  evidence  of  his 
original  knowledge  of  the  scheme,  and  of  acceptance  of  its  bene- 
fits, is  sufficient  to  go  to  the  jury,  without  evidence  of  direct 
representations  by  him.8 

If  representations  directly  to  the  plaintiff  or  his  agent  are 
not  shown,  there  must  be  evidence  that  defendant  had  in  mind 
the  plaintiff,  or  a  class  of  which  he  was  one.7 

3.  Liberal  rule  of  evidence  :  Cogency.'] — Evidence  tending  to 
show  the  true  nature  of  the  transaction  is  freely  received,  unless 
forbidden  by  settled  rules.8  Even  slight  evidence  having  a 
tendency  to  establish  fraud,  is  competent.9  Thus,  for  the  purpose 
of  throwing  light  on  the  transaction,  evidence  of  acts,  tending  to 
effect  the  fraua  sued  for,  done  by  some  of  several  partners,  even 
though  before  the  formation  of  their  partnership,  may  be  compe- 
tent.10 Evidence  tending  to  show  the  impossibility  that  the 
representations  should  have  been  true  is  relevant,  as  well  as  evi- 
dence directly  to  their  falsehood.11 

Testimony  of  a  single  competent  witness  is  sufficient  to 
sustain  a  verdict.12 


1  Oliver  v.  Bennett,  65  N.  Y.  559. 

2  Yates  v.  Alden,  41  Barb.  172 ;  Updike  v.  Abel,  60  Barb.  15. 

3  Elwell  v.  Chamberlain,  81  N.  Y.  61 1 ;  Durst  v.  Burton,  2  Lans.  137,  affi'd  in  47 
K  Y.  167;  8  Am  L.  Rev.  631;  3  Id,  442,  and  cases  cited.     Compare  Lansing  v. 
Coleman,  58  Barb.  611. 

s.  p.  in  case  of  husband  acting  for  wife.  "Warner  v.  Warren,  46  N.  Y.  228 ; 
Graves  v.  Spier.  58  Barb.  349.  Compare  Birdseye  v.  Flint,  3  Barb.  600 ;  Weckler  v. 
First  National  Bank  of  Hagerstown,  42  Md.  581,  3.  c.  20  Am.  R.  95. 

4  Pages  214  and  217  of  this  vol.,  and  Chainberlin  v.  Prior,  1  Abb.  Ct  App.  Dec. 
333. 

5  King  v.  Fitch,  2  Abb.  Ct.  App.  Dec.  508 ;  Mackay  Y.  Commercial  Bank  of  New 
Brunswick,  L.  R.  5  P.  C.  394,  8.  c.  9  Moak's  Eng.  202. 

As  to  corporate  officers,  see  p.  38,  of  this  vol.  1  Redf.  Ry.  592  (14);  Arthur 
v.  Griswold,  55  N.  Y.  400;  Morgan  V.  Skiddy,  62  N.  Y.  319,  affi'g  in  part  and  rev's 
in  part,  36  Super.  Ct.  (J.  &  S.)  152;  Peck  v.  Gurney,  L.  R.  6  Ho.  of  L.  377,  s.  o.  8 
Moak's  Eng.  1. 

8  Miller  v.  Barber,  66  N.  Y.  658,  affi'g  4  Hun,  802. 

1  Swift  v.  Winterbothara,  L.  R.  8  Q.  B.  244,  s.  c.  5  Moak's  Eng.  202 ;  2  Abb.  N. 
Y.  Dig.  new  ed.  834,  Ac.  Compare  Paris  v.  Peck,  10  Abb.  Pr.  N.  S.  55,  s.  o.  2 
Sweeny,  689;  Simpson  v.  Wiggin,  3  Woodb.  «fe  M.  413;  Crocker  v.  Lewis,  3  Snmn. 
1  ;  Peck  v.  Gurney,  L.  R.  6  House  of  L.  377,  8.  o.  8  Moak's  Eng.  R.  1.  See  lasigi  v. 
Brown,  17  How.  U.  S.  183. 

8  See  Bigelow  on  Fr.  476. 

8  See  Hubbard  v.  Briggs,  81  N.  Y.  618. 

10  Chester  V.  Dickerson,  64  N.  Y.  1,  s.  c.  45  How.  Pr.  326,  affi'g  52  Barb.   349; 
and  see  Gethy  v.  Devlin,  24  N.  Y.  403. 

11  See,  for  instance,  Thorn  v.  Helmer,  4  Abb.  Ct  App.  Dec.  408. 

11  Morgan  v.  Skidmore,  3  Abb.  New  Cases,  95.  Whether  more  than  a  preponder- 
ance of  evidence  can  be  required,  see  page  495  of  this  voL 


616  ACTIONS  FOR  DECEIT  OR  FRAUD. 

4.  falsity.'] —  The  burden  is  on  plaintiff  to  give  evidence  of 
falsity.1    If  the  falsity  consists  in  the  existence  and  contents  of 
documents,  such  as  the  fact  of  incumbrances  on  real  property, 
the  admissions  of  defendant  are  not  competent  without  excuse 
for  not  producing  the  best  evidence.2     Representations  as  to  thd 
amount  of  property,  sales,  &c.,  are  proved  to  be  false  by  show- 
ing substantial  exaggerations.8 

5.  —  as  to  solvency,  dkc.~\ — On  the  question  of  solvency  or 
pecuniary  ability,4  facts  which  are  the  usual  concomitants  or  con- 
sequences of  pecuniary  ability,  or  the  contrary,  are  competent : 
thus,  a  judgment  and  execution,  and  its  return  unsatisfied  ;5  dis- 
honor of  a  check  drawn  by  a  merchant  upon  his  banker;6  the 
small  amount  a  merchant  had  on  deposit  in  bank  at  the  time  of 
his  purchases ; 7  the  fact  of  having  absconded  and  having  been 
proceeded  against  as  an  absconding  debtor,  without  sufficient 
assets  to  pay  in  full,8  and  the  like,  are  competent ;  and  such  evi- 
dence is  received  more  or  less  freely,  according  as  direct  evidence 
is  wanting  or  accessible.    The  taking  of  the  poor  debtor's  oath,  or 
a  discharge  from  imprisonment  for  insolvency,  if  not  in  a  court 
of  record,  may  be  proved  by  parol;9  and  irregularity  in  the 
certificate  is  immaterial.10 

Ability  or  inability  to  pay  debts,  is  a  fact  which  a  witness 
conversant  with  the  particulars  may  directly  testify  to.11  Such  a 
witness  may  be  asked  "  what  were  the  circumstances  "  of  the 
person,  or  "  what  was  his  situation  as  to  property  ;"12  "  whether 
he  was  responsible  for  "a  given  sum,  and  the  like.13  Solvency 
within  a  reasonable  period  before  the  date  in  question  will,  in 
the  absence  of  evidence  of  change,  support  an  inference  that 
the  solvency  continued.14  To  testify  that  the  person  "  was  con- 
sidered good"  is  hearsay,  or  evidence  of  repute  only,  and  not 


1  Bigelow  on  Fr.  493 ;  and  see  Gray  v.  Lessington,  2  Bosw.  257. 

2  Sherman  v.  People,  13  Hun,  577. 

8  Westcott  v.  Ainsworth,  9  Hun,  63. 

*  See  paragraph  6. 

5  Stahl  v.  Stahl,  2  Lans.  60. 

'  Brown  v.  Montgomery,  20  N.  Y.  287. 

7  Jordan  v.  Osgood,  109  Mass.  457,  8.  c.  12  Am.  R.  731.    As  to  the  mode  of  prov- 
ing the  balance  in  bank,  see  Lewis  v.  Palmer,  28  N.  Y.  271  ;  Clark  v.  Dearborn, 
6  Duer,  309 ;  Sullivan  v.  Warren,  43  How.  Pr.  188;  Boston  &  W.  R.  R.  Co.  v.  Dana, 
1  Gray,  83;  Jordan  v.  Osgoocl,  109  Mass.  457,  8.  c.  12  Am.  R.  731. 

8  Ten  Eyck  v.  Tibbits,  1  Cai.  427.    Compare  Babcock  Y.  Middlesex,  <fec.  Bank,  28 
Conn.  302 ;  Simpson  v.  Carleton,  1  Allen,  109. 

9  Richardson  v.  Hitchcock,  28  Vt.  757. 

10  Id. 

11  Thompson  v.  Hall,  45  Barb.  214. 
19  Caswell  v.  Howard,  16  Pick.  567. 

13  Hard  v.  Brown,  18  Vt.  87. 

14  Walrod  v.  Ball,  9  Bnrb.  271,  275.   Compare  French  v.  Willett,  10  Bosw.  566.    So, 
on  the  question  of  the  falsity  of  representations  as  to  professional  income  in  a  given 
year,  evidence  of  actual  income  in  the  next  year,  is  relevant.     Thorn  v.  Helmer,  4 
Abb.  Ct.  App.  Cas.  408.    Compare,  as  to  fluctuating  profits,  Masterton  v.  Village  of 
Mt.  Vernon,  68  IS".  Y.  391. 


ACTIONS   FOR   DECEIT   OR   FRAUD.  617 

competent  on  the  question  of  actual  condition ; 1  but  to  testify- 
that  the  witness  considered  him  good  at  the  time,  is  admissible, 
in  connection  with  his  testimony  to  the  facts.2 

A  witness  who  states  the  facts  on  which  his  opinion  is  based, 
and  his  means  of  knowledge s  may  state  his  opinion.4  Without 
the  facts  his  opinion  is  incompetent.5  To  qualify  the  witness  for 
this  purpose,  he  must  show  some  knowledge  as  to  the  existence 
and  ownership  of  property.6  Mere  inference  from  style  of 
living,  &c.,  is  not  competent.7  It  is  no  objection  that  the  opin- 
ion was  based  partly  on  what  was  said  by  others,  acquainted 
with  the  person,  at  the  place  8  and  at  and  before  the  time.  In  con- 
nection with  direct  opinions,  evidence  that  the  party  was  indus- 
trious and  of  good  habits,  is  competent.9 

When  it  is  essential  to  prove  actual  insolvency  it  cannot  be 
proved  by  general  reputation.?0 

6.  —  reason  to  btlieve  one  insolvent,  c&c.] — Upon  the  question 
whether  a  party  had  reasonable  cause  to  believe  another  insol- 
vent, it  is  competent  to  show  that  he  was  generally  reputed  at 
the  place,  to  be  so,11  or  the  contrary ; u  and  to  show  his  business 
credit  and  pecuniary  standing  among  those  neighbors,  creditors, 
etc.,  having  dealings  with  him ; 13  also  his  habits  affecting  credit 
and  the  probability  of  insolvency,  such  as  attention  or  inattention 
to  business,  frugality  or  extravagance  in  expenditure,  habitual 
waste  of  time;14  and  defendant's  knowledge  of  these  facts.15 

A  qualified  witness  may  state  his  opinion  whether  the  credit 
of  the  party  was  good  ;18  whether  he  was  in  good  reputation  for 
property  ;17  and  the  like.  The  fact  that  the  knowledge  of  the  wit- 
ness does  not  extend  to  the  condition  of  the  party  at  places  other 


1  Sheldon  v.  Root,  16  Pick.  567. 

*  Commonwealth  v.  Thompson,  3  Dana  (Ky.)  301.     Compare  note  on  testimony 
to  belief,  <fec.,  in  3  Abb.  New  Cas.  234. 

3  Sherman  v.  Blodgett,  28  Vt.  149. 

4  Hard  v.  Brown,  18  Vt.  87;    Crawford  v.  Andrews,  6  Geo.  244,  251.     Compare 
Griffin  v.  Brown,  2  Pick.  304,  309. 

6  Andrews  v.  Jones,  10  Ala.  460,  470. 

6  Babcock  v.  Middlesex  Savings  Bank,  28  Conn.  302,  306.     The  head  note  ia  too 
broad. 
'Id. 
8  Hard  v.  Brown,  18  Vt.  87,  97. 

•  Hard  v.  Brown,  18  Vt.  87 ;  and  see  paragraph  6. 

10  Fairchild  v.  Case,  24  Wend.  881 ;  Molyneaux  v.  Collier,  13  Geo.  406,  417.     So, 
of  the  admissions  of  plaintiff's  attorney.     Potter  v.  Lansing,  1  Johns.  216. 

11  Lee  v.  Kilburn,  3  Gray,  594,  698;  Ward  v.  Herndon,  6  Port.  382;  Amsden  v. 
Manchester,  40  Barb.  158. 

13  Bartlett  v.  Decreet,  4  Id.  113  ;  Sheen  v.  Bumpstead,  2  H,  <b  C.  193,  a.  o.  10  Jur. 
N.  S.  242. 

11  Heywood  v.  Reed,  4  Gray,  674. 

14  Simpson  v.  Carleton,  1  Allen,  109,  117. 
1J  Id;  Sheen  v.  Bumpstead  (above). 

18  Hard  v.  Brown,  18  Vt.  87 ;  Iselin  v.  Peck,  2  Robt.  63L 
11  Bartlett  v.  Decreet,  4  Gray,  113. 


618  ACTIONS   FOR   DECEIT   OR  FRAUD. 

than  his  chief  residence  or  domicil,  does  not  necessarily  render  it 
incompetent.1 

7.  Scienter.~\ — If  the  false  representations  do  not  imply  personal 
knowledge,  plaintiff  nrust  show  that  the  speaker  knew  them  to  be 
false  when  he  made  them,2  or  had  good  reason  to  believe  that  they 
were  when  made,8  or  that  he  intended  them  to  be  understood  as 
communicating  his  own  actual  knowledge,  though  conscious  that 
he  had  not  sucn  knowledge.4 

The  allegation  and  the  proof  should  correspond  on  these 
points.5 

To  show  scienter,  plaintiff  may  prove  other  declarations  by 
defendant,  on  matters  relevant  to  the  issue,  presumably  or  actu- 
ally within  his  knowledge,  and  then  show  their  falsity.6 

8.  Intent  to  deceive. ~\ — Intent  to  deceive  must  be  alleged  and 
proved.7    Proof  of  a  false  representation  knowingly  made,  raises 
a  presumption  of  a  fraudulent  intent.8    Representations  made  in 
defendant's  hearing,  and  without  objection  from -him,  maybe 
proved  in  connection  with  evidence  of  false  representations  pre- 
viously made  by  him ;  as  tending  to  show  intent.9    For  the  same 
purpose,  evidence  of  other  similar  frauds  committed  by  defend- 
ant on  other  persons,  at  about  the  same  time,  is  competent.11 
Where  the  alleged  deceit  was  by  fraudulent  suppression  of  facts, 
it  is  competent  to  prove  that,  in  the  other  instances,  it  was  com- 
mitted by  actual  misrepresentation  concerning  the  same  facts,  if 
they  were  both  false  and  fraudulent.11     But  such  other  misrepre- 
sentations will  not  alone  sustain  a  recovery,  unless  the  maker  in- 
tended they  should  be,  and  they  were,  communicated  to,  and  acted 
on,  by  plaintiff.12    Plaintiff  need  not  prove  defendant's  motive,18 


1  Stebbins  v.  Miller,  12  Allen,  591,  694,  597. 

*  Oberlander  v.  Spiess,  45  N.  Y.  175;  Hubbell  v.  Meigs,  50  N.  Y.  480. 

3  Or  knew  facts  sufficient  to  have  put  him  upon  inquiry.     Craig  v.  Ward,  1  Abb. 
Ct.  App.  Dec.  454.     Otherwise  of  merely  having  the  means  of  knowledge.     Lefever 
v.  Lefever,  30  N.  Y.  27. 

4  Marsh  v.  Falker,  40  N.  Y.  562 ;  per  Brady,  J.,  in  Indianapolis,  <fec.  R.  R.  Co.  v. 
Tyng,  2  Hun,  31 1,  319 ;  limiting  Bennett  v.  Judson,  21  N.  Y.  238;  Cabot  v.  Christie, 
42  Vt.  121,  8.  c.  1  Am.  R.  313. 

8  Marshall  v.  Fowler,  7  Hun,  237. 

6  Coleman  v.  People,  68  N.  Y.  555;  affi'g,  1  Hun,  596,  s.  c.  4  Supm.  Ct.  (T.  <fc  C.) 
61. 

1  Lefler  v.  Field,  62  N.  Y.  621;  compare  Dudley  v.  Scranton,  67  Id.  424;  Mar- 
shall v.  Fowler,  7  Hun,  237;  contra,  Polhil  v.  Walter,  8  Barn.  &  Ad.  114;  compare 
Watson  v.  Poulson,  15  Jur.  1111. 

8  People  v.  Herrick,  13  Wend.  87;  3  Am.  L.  Rev.  430,  and  cases  cited. 

»  Hubbard  v.  Briggs,  31  X.  Y.  618,  637. 

10  Butler  v.  Watkins,  13  Wall.  464;  Cary  v.  Houghtaling,  1  Hill,  311  ;  Amsden  v. 
Manchester,  40  Barb.   168;    Van  Vleeck  v.  Le  Roy  (below).       Contra,  unless  such 
frauds  were  parts  of  one  fraudulent  scheme,  Jordan  v.  Osgood,  109  Mass.  457,  s.  c. 
12  Am.  R.  731 ;  Edwards  v.  Warner.  36  Conn.  517. 

11  Hall  v.  Naylor,  18  N.  Y.  58S,  reVg  6  Duer,  71. 

19  Van  Kleek  v.  Le  Roy,  4  Abb.  Ct.  App.  Dec.  431,  s.  c.  4  Abb.  Pr.  N.  S.  431, 
affi'g  37  Barb.  644. 

13  Gould  v,  St.  John,  16  Wend.  650,  and  cases  cited. 


ACTIONS  FOR  DECEIT  OR  FRAUD.  619 

nor  that  a  defendant  actually  guilty,  was  benefited,  or  was  in  col- 
lusion with  one  who  was  benefited.1 

9.  Plaintiff^s  reliance  on  the  representations^ — Plaintiffs  re- 
liance must  be  shown.2    His  conduct  in  consequence  of  the  deceit 
may  be  proved  for  this  purpose,8  even  though  it  be  not  specially 
pleaded  so  as  to  be  considered  on  the  question  of  damages.4    His 
testimony  that'  his  subsequent  acts  were  in  consequence  of,  or  on 
the  faith  of  the  representation,  is  competent.5    And  it  is  not  suf- 
ficiently met  by  proving  that  he  also  sought,  and  in  part  relied  on, 
information  from  other  sources.6    To  show  that  the  credit  given 
by  plaintiff,  was  given  to  the  person  alleged,  the  plaintiff's  oral  de- 
clarations7 and  entries  in  his  books,8  made  at  the  time,  are  compe- 
tent.    But  the  letters  and  declarations  of  third  persons,9  even  his 
agents,10  are  not  competent  unless  as  part  of  the  res  gcstoB  of  an  act 
properly  in  evidence.11     If  the  parties  dealt  on  equal  terms,  each 
may  be  presumed  to  have  relied  upon  his  own  judgment  in  mat- 
ters of  value  and  opinion.12 

10.  Damages.] — The  price  plaintiff  paid  defendant,  under  the 
inducement  of  false  representations  01  value,  is  competent  evi- 
dence for  the  jury,  of  what  the  value  would  have  been  had  the 
representations  been  true.13     Other  rules  for  proving  value  and 
damage  have  been  already  stated.14 

11.  Oral  evidence  to  vary  ior/ting.~\ — Oral  evidence  of  mis- 
representations, though  not  usually  admissible  to  show  the  mean- 
ing of  an  instrument  embodying  a  contract,13  is  admissible  to  show 
the  intent  of  the  parties,16  and  the  deceit  by  which  assent  was  ob- 
tained,17 and  to  show  what  would  have  been  covered  by  the  terms 


1  Ilubbafd  v.  Briggs,  31  N.  Y.  518. 

2  Taylor  v.  Guest,  68  N".  Y.  262.     And  must  be  alleged.     Goings  v.  White,  33 
Ind.  125  ;  Saxton  v.  Dodge,  67  Barb.  84,  116. 

3  Thorn  v.  Helmer,  4  Abb.  Ct.  App.  Dec.  408. 

4  Id ;  Dung  v.  Parker,  3  Daly,  89. 

*  People  v.  Sully,  5  Park  Cr.  142;  Bruce  v.  Burr,  67  N.  Y.  237,  nffig  5  Daly, 
510;  Plardt  v.  Schulting,  13  Hun,  537;  and  see  pp.  240,  245,  265,  of  this  vol. 
e  Bruce  v.  Burr  (above). 

7  Fellowes  v.  Williamson,  M.  <fe  M.  306 ;  Powell  Ev.  146 ;  Rose.  N.  P.  64. 

8  Place  v.  Minster,  65  N.  Y.  89,  107.    To  the  contrary,  Moore  v.  Meecham,  10  Id. 
207.     Compare  p.  245  of  this  vol.  note  4. 

'  Longenecker  v.  Hyde.  6  Binn.  1. 

10  Small  v.  Gilman;  48  Me.  606. 

11  See  pp.  245  and  265,  of  this  vol. 

11  Blease  v.  Garlington,  92  U.  S.  (2  Otto),  1. 

13  Miller  v.  Barber,  66  N.  Y.  658,  568,  affi'g  4  Hun,  802. 

14  Pages  308,  347,  489  and  598,  of  this  vol.     Cl.irk  v   Baird,  9  N.  Y.  183;  McDon- 
ald v.  Christie,  42  Barb.  36 ;    Page  v.  Parker,  40   N.  II.  47,  59;  Lane  v.  Wilcox,  65 
Barb.  615 ;  Rice  v.  Manley,  66  N.  Y.  82,  revV  2  Hun,  492,  s.  c.  6  Supm.  Ct.  (T.  <b 
C.)  14. 

14  For  the  limitations  of  this  rule,  see  p.  294  of  this  voL     Webster  v.  Hodgkins,  5 
Fost.  (N.  II.)  128,  143. 

16  Thomas  v.  Becbe,  25  N.  Y.  244. 

17  See  Salem  India  Rubber  Co.  v.  Adams,  23  Pick.  (Mass.)  256 ;  Benj.  on  Sales, 
§  621,  n.  ;  Bigelow  on  Fr.  488 ;  Culver  v.  Avery,  7  Wend.  380,  and  see  cases  cited. 


620  ACTIONS  FOR  DECEIT  OR  FRAUD. 

of  the  instrument  if  the  representations  had  been  true ;  *  and  the 
relation  of  the  parties,  under  which  the  instrument  was  made, 
may  be  shown,  not  to  vary  its  terms,  but  to  show  the  defendant's 
liability  in  respect  of  the  transaction.2  The  fact  that  certain  false 
representations  were  reduced  to  writing  and  delivered,  does  not 
exclude  evidence  of  other  oral  misrepresentations.3  Ambiguous 
words  used  for  the  purpose  of  deceit,  are  taken  in  the  sense  in 
which  the  defendant  intended  they  should  be  understood.4 

12.  Testimony  of  the  parties.'] — If  the  facts  are  not  conclu- 
sive as  to  fraud,  the  parties  may  be  examined  as  to  their  know- 
ledge,5 ignorance,6  belief,7  opinion,8  and  reliance,9  at  the  time  of  the 
transaction;  and  for  the  purpose  of  showing  reliance,  plaintiff 
can  testify  that  he  would  not  have  acted  as  he  did  had  the  facts 
been  known  to  him,10  but  defendant  cannot  testify  that  he  did 
not  intend  to  deceive,11  nor  that  he  intended  only  to  give  an  opin- 
ion.12 

Defendant  is  privileged  to  refuse  to  answer  a  question  and 
equally  from  producing  documents,13  if  the  court  can  see  that 
his  answer,  or  the  documents,  may  in  some  way  criminate  him, 
directly  or  indirectly,  in  a  criminal  fraud,  either  by  furnishing 
direct  evidence  of  his  guilt,  or  by  establishing  one  of  many  facts, 
which  together  may  constitute  a  chain  of  evidence  sufficient  to 
warrant  his  conviction,  although  the  one  answer  or  document 
could  not  itself  produce  such  result:  The  witness  claiming  the 
privilege  is  not  obliged  to  explain  how  he  will  be  criminated,  nor 
need  the  court  see  that  he  must  be  in  some  way  ;  it  is  enough 
that  the  situation  is  such  that  he  might  be.14  But  if  the  party,  in 
testifying  on  his  own  behalf,  has  voluntarily  opened  the  subject,  he 
may  be  cross-examined  so  far  as  necessary  to  sift  his  testimony, 
notwithstanding  the  claim  of  privilege.15 

Where  the  privilege  exists,  it  is  personal  to  the  witness.  His 
counsel  cannot  be  heard  to  object  to  the  evidence  as  such,  nor 


1  Sharp  v.  Mayor,  <fcc.  of  N.  Y.  40  Barb.  256.  270, 8.  c.  less  fully,  25  How.  Pr.  389. 

2  Richards  v.  Millard,  66  N.  Y.  574,  s.  c.  below,  1  Supm.  Ct.  (t.  <fe  C.)  247. 

3  Match  v.  Hunt,  6  Cent.  L.  J.  155. 

4  Johnson  v.  Hathorn,  2  Abb.  Ct.  App.  Dec.  465. 

6  See  Reynolds  v.  Commerce  Fire  Ins.  Co.  47  N.  Y.  697. 

6  Id. 

1  Smith  T.  Countryman,  30  N.  Y.  655;  Watson  v.  Cheshire,  18  Iowa,  202,  210. 

8  Blanchard  v.  Mann,  1  Allen  (Mas?.),  433. 

»  Smith  v.  Countryman,  (above) ;  White  v.  Dodds,  42  Barb.  554,  s.  o.  18  Abb.Pr. 
250,  and  28  How.  Pr.  197. 

Such  evidence  is  necessarily  open  to  suspicion,  since  it  undertakes  to  prove  good 
faith  by  an  appeal  to  the  very  good  faith  which  is  to  be  proved.  1  Whart.  Ev.  45, 
§  35. 

10  King  v.  Fitch,  2  Abb.  Ct.  App.  Dec.  515.     Contra,  Learned  v.  Ryder,  61  Barb. 
552,  s.  c.  5  Lans.  539. 

11  Bnllard  v.  Lockwood,  1  Daly,  168.     Contra,  Pope  v.  Har^,  35  Barb.  630. 
»  Waugh  v.  Fielding,  48  N.  Y.  681. 

13  See  Byass  v.  Sullivan,  21  How.  Pr.  60. 

14  People  v.  Mather,  4  Wend.  229.      But  the  question  is  for  the  court  not  the  wit- 
ness.    Fellows  v.  Wilson,  31    Barb.  162.     If  inspection  of  a  document  is  necessary 
the  court  may  require  to  see  it.     Mitchell's  Case,  12  Abb.  Pr.  249. 

18  People  v.  Carroll,  3  Park.  Cr.  73. 


ACTIONS  FOR  DECEIT  OR  FRAUD.  621 

should  the  judge  refuse  to  allow  the  objectionable  question  to  be 
put,  but  only  advise  the  witness  of  his  privilege.  The  witness 
has  a  right  to  advise  with  his  counsel  in  the  hearing  of  the  court, 
but  not  privately,  but  must  give  his  own  answer  without  aid  in 
writing  or  otherwise.  An  exception  lies  to  a  refusal  to  require 
an  answer,  but  not  to  a  requirement  of  an  answer.1  As  to  a  non- 
criminal  fraud  he  has  no  privilege.2  A  knowledge  of  falsity  being 
proved  is  not  overcome  by  oath  to  belief,  or  to  intent  to  pay.8 

13.  Declarations  of  conspirators. ~\ — Slight  evidence  of  con- 
cert or  collusion  between  the  parties  to  an  illegal  transaction, 
admits  evidence  of  the  acts  and  declarations  of  one  against  the 
others,  under  the  rule  already  stated.4      It  is  in  the  discretion 
of  the  court  to  allow  evidence  of  the  declarations  of  one,  to  be  ad- 
mitted against  the  other,  in  anticipation  of  evidence  to  connect.5 

14.  Defenses^ — On  the  question  of  good  faith,  defendant  may 
show  that  he  previously  made  inquiries,  and  from  the  result  be- 
lieved the  statement  which  he  thereupon  made.6    If  charged  with 
deceit  by  suppressing  information  received  from  a  document,  he 
may  prove  its  contents  to  repel  the  charge.7 

Plaintiff 's  knowledge  is  admissible  under  a  general  denial.8  It 
must  be  clearly  shown,  to  amount  to  a  bar.9  Defendant  may 
prove  plaintiffs  representations,  on  the  same  subject,  to  third 
persons,  or  his  use  with  third  persons,  of  representations  made  by 
others.10 

Evidence  of  the  good  character  for  honesty  and  fair-dealing 
of  the  defendant,11  or  of  the  agent  who  acted  for  him,12  is  not  com- 
petent. 

15.  — former  adjudication^ — The  acquittal  of  the  defendant 
on  a  criminal  prosecution,  is  not  competent  in  his  favor.18    A  judg- 
ment for  defendant  in  a  civil  action  on  contract,  is  not  necessarily 
a  bar.14    Judgments  and  judicial  proceedings  to  which  the  party 
was  an  entire  stranger,  are  not  competent  against  him,  to  show 
the  truth  of  facts  alleged  or  established  by  them.15 


1  6  Abb.  K  Y.  Dig.  2d  ed.  239.     Remedy  to  strike  out  pleading  for  refusal  to  an- 
swer.    Richards  v.  Judd,  15  Abb.  Pr.  N.  S.  184. 
8  Bigelow  on  Fr.  498. 

3  Westcott  v.  Ainsworth,  9  Hun,  63. 

4  Page  190  of  this  vol;  2  Whart.  Ev.  §  1205  ;  Bigelow  on  Fr.  434. 
6  Miller  v.  Barber,  66  N.  Y.  558,  567,  affi'g  4  Hun,  802. 

•  Oberlander  v.  Spies,  45  N.  Y.  175.    Compare  Ballard  v.  Lockwood,  1  Daly,  158. 
T  Bronson  v.  Wiman,  8  N.  Y.  187,  189. 

8  Howell  v.  Biddleton,  62  Barb.  131. 

9  Chandelor  v.  Lopus,  1  Smith's  L.  Cas.  299,  320,  and  cases  cited. 

10  Atkins  v.  Elwell,  45  N.  Y.  753. 

11  Gough  v.  St.  John,  16  Wend.  646;  Anderson  v.  Long,  10  Serg.  <fe  R.  65. 

19  Bassett  v.  Lederer,  1  Hun,  274,  s.  c.  3  Supm.  Ct.  (T.  A  C.)  671.     Contra,  said, 
•where  the  evidence  is  circumstantial.     See  Bigelow  on  Fr.  478. 

13  Peek  v.  Gurney.  L.  R.  13  Eq.  Cases,  70,  112,  s.  c.  1  Moak*a  Eng.  667,  600. 

14  N.  Y.  Code  of  Civ.  Pro.  §  649 ;  1  Abb.  N.  Y.  Dig.  new  ed.  630;  3  Id.  465.  473. 
Nor  competent.     Norton  v.  Huxley,  13  Gray,  285. 

<  15  Degraff  v.  Hovey,  16   Abb.  Pr.  120;  Lefever  v.  Lefever,  30  N.  Y.  27.     Other. 
wise  of  a  purchaser  pendents  life.     Craig  v.  Ward,  1  Abb.  Ct.  App.  Dec,  454. 


CHAPTEE  XXXV. 

ACTIONS  FOR  CONVERSION. 

1.  Frame  of  the  complaint.  10.  The  conversion. 

2.  The  existence  and  identity  of  the  thing.     11.  Demand. 
8.  Plaintiff 's  title.  12.  Value. 

4.  Possession  as  evidence  of  title.  13.  Declarations  of  former  owner. 

5.  Mode  of  proving  possession.  14.  Title  in  defense. 

6.  Mode  of  proving  source  of  title.  15.  Title  derived  through  wrong-doer. 

7.  Title  by  mortgage.  16.  Illegality. 

8.  Equitable  title :   lien.  17.  Mitigation  of  damages. 

9.  Plaintiff  owner,  notwithstanding  roid 

sale. 

1.  Frame  of  the  Complaint.'] — If  the   complaint   alleges   a 
wrongful  conversion  as  the  distinctive  ground  of  the  action,  it 
is  not  sustained  by  proof  of  a  mere  breach  of  contract  or  duty.1 
Otherwise,  if  a  cause  of  action  on  contract  is  sufficiently  alleged, 
and  the  allegations  of  conversion  are  incidental.2 

Under  an  allegation  of  conversion  of  plaintiff's  property,  evi- 
dence of  conversion  of  the  property  of  another,  and  a  subsequent 
assignment  of  the  property,  or  of  the  cause  of  action  for  conver- 
sion, is  a  variance.3  The  assignment  should  be  alleged ; 4  but  its 
consideration  need  not  be  set  forth.5 

2.  The  existence  and  identity  of   the  thingJ] — Defendant's 
representations  may  be  used  to  estop  him  from  denying  that  the 
alleged  property  ever  existed.6    Conversion  of  checks  or  money 
may  be  proved  under  allegations  of  conversion  of  property.7 
Proving  the  specific  description  of  the  bills  or  coins  converted 
is  not  necessary  if  the  amount  is  not  .doubtful.8 

If  the  thing  converted  is  a  written  instrument,  the  nature  of 
the  action  is  sufficient  notice  to  produce,  to  let  in  secondary  evi- 


1  Tolano  v.  National  Steam  Nav.  Co.  5  Robt.  318,  326,  s.  c.  4  Abb.  Pr.  N.  S.  316 ; 
85  How.  Pr.  496.  Compare  Gordon  v.  Hostetter,  37  N.  Y.  99,  s.  c.  4  Abb.  Pr.  N.  S.  263. 

8  Conaughty  v.  Nichols,  42  N.  Y.  83;  but  see  50  Id.  1;  51  Id.  108.  Compare 
Austin  v.  Kawdon,  44  Id.  63. 

8  Bowman  v.  Eaton,  24  Barb.  628;  Duell  v.  Cudlipp,  1  Hilt.  166;  Hodges  T. 
Lathrop,  1  Sandf.  46  ;  Whittaker  v.  Merrill,  30  Barb.  389  ;  Sherman  v.  Elder,  24  N. 
Y.  381.  Compare  Read  v.  Lambert,  10  Abb.  Pr.  N.  S.  428 ;  Corsan  v.  Oliver,  2  Abb. 
New  Cas.  352  ;  Hicks  Y.  Cleveland,  48  N.  Y.  84. 

4  See  Chap.  I. 

8  Vo^el  v.  Badcock,  1  Abb.  Pr.  176. 

8  Griswold  v.  Haven,  25  N.  Y.  595 ;  Harding  v.  Carter,  Park  on  Ins.  4  (Lord 
MANSFIELD.  ) 

'  Knapp  v.  Roche,  87  Super.  Ct.  (J.  A  S.)  395;  62  N.  Y.  614. 

•  Gorden  v.  Hosteller,  37  N.  Y.  99,  s.  c.  4  Abb.  Pr.  N.  S.  263. 

[622] 


ACTIONS  FOR   CONVERSION.  623 

dence  of  its  contents  *  and  indorsements.2  If  the  things  convert- 
ed were  commingled  with  a  larger  quantity,  without  defendant's 
fault,  the  burden  is  on  plaintiff  to  show  the  part  that  he  was  en- 
titled to.*  The  rules  applicable  to  proving  quantity,  kind,  dates, 
etc.,  by  witnesses  and  memoranda,  or  entries,  have  been  already 
stated.*  A  qualified  witness 5  may  testify  directly  to  the  identity 
of  the  thing ;  but  belief  or  opinion  of  identity  is  not  competent 
without  statement  of  the  facts  on  which  it  is  founded.6 

3.  Plaintiff's   titled] — Under  a  general  averment  of  title  or 
ownership,  the  source  of  plaintiff's  title  may  be  proved.7    A  wit- 
ness may  testify  directly,  in  the  first  instance,  who  owned  the 
property,8  if  he  can  do  so  positively,  and  not  as  mere  opinion.9 
Absolute  title  need  not  be  shown.     A  bailee  may  sue.10 

4.  Possession  as  evidence  of  titleJ] — The  mere  facts  of  lawful 
possession  -in  plaintiff,  and  wrongful  taking  by  defendant,  are 
sufficient.11    Lawful  possession  is  sufficient  evidence  of  title  with- 
out proving  the  transfer  by  which  plaintiff  acquired  title ; u  and 
possession  is  presumed  lawful  unless  the  contrary  appears. 

5.  Mode  of  proving  possession.] — A    witness    may  testify 
directly  in  the  first  instance  to  the  fact  of  possession,13  if  he  can 
do  so  positively  (subject,  of  course,  to  cross-examination  as  to  de- 
tails) ;  but  not  to  inference  or  opinion.14 

6.  Mode  of  proving  source  of  title.'] — If  the  title  was  acquired 
by  bill  of  sale,  or  other  written  instrument,  it  must  be  produced, 
or  accounted  for  and  secondary  evidence  of  its  contents  given,  in 
order  to  prove  the  transfer.15     But  if  title  passed  by  oral  sale  and 
delivery,  a  receipt  or  bill  of  parcels,  though  given  at  the  time,16  or 
a  bill  of  sale  subsequently  delivered,17  need  not  be  produced. 


1  Bissel  v.  Drake,  19  Johns.  66  ;  Hays  v.  Riddle,  1  Sandf.  248. 

•  Howell  v.  Huyck,  2  Abb.  Ct.  App/Dec.  423. 

1  Wilson  v.  Wilson,  37  Md.  1. 

4  Pages  319-26  of  this  vol. ;  and  see  Glover  v.  Hunnewell,  6  Pick.  222;  Bartlett 
V.  Hoyt,  33  N.  H.  151. 

6  It  requires  knowledge  of  the  thing.  Rich  v.  Jones,  9  Gush.  (Mass.)  329.  But  not 
necessarily  an  expert.  Morrissey  v.  People,  11  Mich.  327. 

8  Goodwin  v.  Goodwin,  20  Geo.  600. 

1  Heine  v.  Anderson,  2  Duer,  318. 

8  De  Wolfe  v.  Williams,  69  N.  Y.  621 ;  Walsh  v.  Kelly,  42  Barb.  98,  s.  c.  27  How. 
Pr.  359  ;  Nelson  v.  Iverson,  24  Ala.  9, 18. 

»  Wells  v.  Ship,  1  Miss.  (WalkJ  353  ;  Maxwell  v.  Harrison,  8  Geo.  61,  66. 

10  Van  Bokkelin  v.  Ingersol,  5  Wend.  315,  confirming  7  Cow.  670  ;  Baker  v.  Hoag, 
7  N.  Y.  555  ;  Faulkner  v.  Brown,  13  Wend.  63  ;  and  see  Truslow  v.  Putnam,  4  Abb. 
Ct.  App.  Dec.  425 ;  Nesmith  v.  Dyeing,  <fec.  Co.  1  Curt.  C.  Ct.  130,  s.  c.  1  Am.  Law 
Reg.  82,  and  cas.  cit. 

"  Hendricks  v.  Decker,  85  Barb.  298,  and  cas.  cit. ;  Bowen  v.  Fenner,  40  Id.  383; 
Paddon  v.  Williams,  1  Robt.  840,  8.  c.  2  Abb.  Pr.  N.  S.  88. 

12  Beach  v.  Raritan,  Ac.  R.  R.  Co.  37  N.  Y.  457. 

13  Rand  v.  Freeman,  1  Allen,  617. 

14  Perry  v.  Graham,  18  Ala.  822,  825. 

15  Dunn  v.  Hewitt,  2  Den.  637 ;  King  v.  Racdlett,  38  CaL  818. 
"  Page  287  of  this  vol. 

«  Sanders  v.  Stokes,  30  Ala.  432. 


624  ACTIONS  FOR  CONVERSION. 

An  invoice  is  not  alone  evidence  of  a  sale.1  A  bill  of  lading 
is  presumptive  evidence  of  title  in  the  consignee.2 

The  registry  is  not  the  exclusive  evidence  of  the  title  to  a 
vessel.8 

If  plaintiffs  right  to  claim  possession  is  by  virtue  of  his  pur- 
chase at  an  execution  sale,  the  execution  is  sufficient  evidence  of 
the  judgment,  as  against  the  debtor  in  the  execution ;  but  as 
against  a  third  person  other  than  the  officer,  he  must  prove  the 
judgment.4  If  the  levy  was  valid  only  as  to  part  of  the  property, 
plaintiff  must  identify  the  part.5  A  return  stating  that  legal 
notice  was  given  is  presumptive,  but  not  conclusive  evidence  of 
regularity  in  the  notice.8  Against  one  who  shows  himself  a  pur- 
chaser in  good  faith,  evidence  that  an  execution  against  the  sell- 
er's property  was  in  the  sheriff's  hands  very  shortly  before  the 
purchase,  will  not  raise  a  presumption  of  actual  levy  made  before 
the  sale.7 

Other  rules  as  to  the  mode  of  proving  sales  have  been  already 
stated.8 

For  the  purpose  of  proving  ownership  of  crops,  timber,  etc., 
the  ownership  of  the  soil  may  be  shown  by  producing  the  deed  to 
plaintiff,  and  possession  under  it,  without  showing  title  in  the 
grantor.9  As  between  the  parties  to  the  deed,  parol  evidence 
that  things  not  included  in  its  terms  were*  intended  to  pass  by  it 
is  incompetent.10  Declarations  of  either  the  owner  or  the  occu- 
pant of  the  land,  made  in  connection  with  and  characterizing  the 
possession  and  the  dominion  over  the  crops,  are  competent  in 
favor  of  the  other  on  the  question  of  his  ownership  of  the 
crops.11 

The  main  tests,on  a  question  of  fixtures  are,  permanent  char- 
acter; adaptation  to  freehold;  and  intent  of  parties.12  On  the 
question  of  intent,  declarations  made  by  the  person  in  possession 
of  the  soil,  who  annexed  the  fixture,  and  at  the  time  of  so  doing, 
are  competent.13 

1  Dows  v.  Nat.  Exchange  Bank  of  Milwaukee,  91  U.  S.  (I  Otto),  618. 
*  Id.;   Halliday  v.  Hamilton,  11  Wall  660;    Rawls  v.  Deshler,  4  Abb.  Ct.  App. 
Dec.  12. 

3  United  States  v.  Jones,  3  "Wash.  C.  Ct.  209 ;  Sutton  v.  Buck,  2  Taunton,  302. 

4  Yates  v.  St.  John,  12  Wend.  74;  Dane  v.  Mallory,  16  Barb.  46. 

5  Brown  v.  Pratt,  4  Wis.  613. 

6  Drake  v.  Mooney,  81  Vt  617. 

7  Millspaugh  v.  Mitchell,  8  Barb.   333 ;   but  see  "Williams  v.  Shelly,  37  N.  T. 
376  ;  Bond  v.  Willett,  1  Abb.  Ct.  App.  Dec.  165. 

8  Chapter  XVI. 

9  Grant  v.  Smith,  26  Mich.  201. 

10  Kipley  v.  Paige,  12  Vt.  853.    Compare  Flynt  v.  Conrad,  1  Phil.  L.  R.  (N.  C.) 
190 ;  Simpkins  v.  Rogers,  15  lit  397. 

11  Woods  v.  Blodgett,  18  N.  H.  249 ;    "White  v.  Morton,  22  Vt.  15.    Compare 
Ekins  v.  Hamilton,  20  Vt.  627.    The  declarations  of  servants  removing  the  products 
away  from  the  land,  as  to  what  lot  they  were  brought  from,  are  not  part  of  the  ret 
gestce,  nor  within  the  scope  of  their  agency.     Woods  v.  Banks,  14  N.  H.  101. 

12  Abb.  N.  Y.  Dig.  new  ed.  tit.  Fixt. ;    Meig*s  Appeal,  62  Pa.  28,  s.  c.  1  Am.  R. 
872;    Seeger  v.  Pettit,  77  Penn.  St.  437,  s.  o.  18  Am.  R.  452  i   and  see  13  Am.  L. 
Kev.  45. 

"  Kelley  v.  Kelley,  20  Wis.  443. 


ACTIONS  FOR  CONVERSION.  625 

7.  Title  "by  mortgage.'] — If  plaintiff  is  a  mortgagee  and  relies 
on  the  mortgage  as  evidence  of  his  title,  he  must  produce  it,1 
with  the  note  or  other  written  obligation,  if  any,  to  which  it  is 
collateral ; 2  or  account  for  non-production,  and  prove  the  contents. 
In  either  case  he  must  prove  execution.8    A  clerk's  certified  copy 
of  the  mortgage  is  not  competent  evidence  of  execution  or  con- 
tents.4   Unless  there  is  actual  change  of  possession,  filing  must 
be  proved,  as  against  judgment   creditors,   etc.,  but  need  not 
against  wrong-doers.5    Oral  evidence  is  not  competent  to  vary  the 
terms  of  the  mortgage.6    Against  a  wrong-doer,  plaintiff  is  not 
bound  to  account  for  other  property  covered  by  the  mortgage, 
but  the  burden  is  on  defendant  to  show  plaintiff's  interest  re- 
duced thereby.7    A  mortgagee  who  took  possession  under  the 
danger  clause,  may  testify  as  a  witness  whether  he  deemed  him- 
self unsafe.8    An  agreement  to  allow  the  mortgagee  to  sell  and 
use  proceeds  may  be  proved  by  extrinsic  evidence.9 

8.  Equitable  title :  Lien.~\ — Plaintiff  may  prove  an  equitable 
title  to  meet  a  common  law  defense  impeaching  the  legal  title.10 

Under  allegations  showing  a  pledge  or  other  lien,  the  evi- 
dence may  be  confined  to  the  debt  alleged  and  admitted.11  Evi- 
dence that  the  thing  was  pledged  to  defendant  or  held  by  him 
under  a  lien,  throws  on  plaintiff  the  burden  of  proving  an  ex- 
tinguishment of  the  lien,12  or  other  right  of  present  possession, 
unless  actual  conversion,  in  violation  of  the  lienor's  duty,  is 
shown.13  For  this  purpose,  evidence  of  payment  of  the  debt,  and 
a  demand  for  a  return  of  the  thing  pledged,  is  sufficient. 

9.  Plaintiff  owner,    notwithstanding  void  saleJ] — Delivery 
on  a  sale  is  presumed  absolute,  and  the  burden  is  on  the  seller 
reclaiming  the  goods,  to  show  the  condition  or  the  fraud  on 
which  he  relies."    Where  fraud  is  not  imputed,  the  buyer's  in- 
tent not  to  pay  is  irrelevant  on  the  question  of  breach  of  con- 
dition.15   

1  Bissell  v.  Pearce,  28  N.  Y.  252. 

1  Flynn  v.  Hathaway,  65  111.  462. 

1  See,  for  mode  of  proof,  pp.  504-8  of  this  vol. 

4  Bissell  v.  1'earce  (above) ;  Sunderlin  v.  Wyman,  10  Hun,  493. 

6  Porter  v.  Parmley,  14  Abb.  Pr.  N.  S.  16,  8.  c.  52  N.Y.  185,  rev'g  34  Super.  Ct 
(J.  A  S.)  398,  8.  c.  43  How.  Pr.  445 ;  Moses  v.  Walker,  2  Hilt.  536. 

6  Baltes  v.  Ripp,  1  Abb.  Ct.  App.  Dec.  78  ;  Clark  v.  Houghton,  12  Gray,  38. 

1  Bailey  v.  Godfrey,  64  111.  507,  s.  c.  5  Am.  R.  157.  Compare  pp.  444,  445  of 
this  vol. 

8  Hug^ans  v.  Fryer,  1  Lans.  276. 

9  Southard  v.  Pinckney,  6  Abb.  New  Cas.  184,  and  cas.  cit. 

10  Woodwortli  v.  Sweet,  51  N.  Y.  8,  affi'g  44  Barb.  268. 

11  Luckey  v.  Gannon,  6  Abb.  Pr.  N.  S.  209,  s.  o.  37  How.  Pr.  134,  1  Sweeny,  12. 
"  Bush  v    Lyon,  9  Cow.  52. 

13  Mulliner  v.  Florence,  38  L.  T.  R.  N.  S.  167,  and  cas.  cit;    Luckey  v.  Gannon, 
37  How.  Pr  134,  s.  o.  6  Abb.  Pr.  N.  S.  209,  and  caa.  cit. 

14  NELSON,  J.,  Furniss  v.  Hone,  8  Wend.  256. 
16  Jessop  v.  Milk-r,  2  Abb.  Ct.  App.  Dec.  449. 

40 


626  ACTIONS  FOR  CONVERSION. 

The  buyer's  undisclosed  knowledge  that  he  was  insolvent  is 
competent  on  the  question  of  fraud,1  without  evidence  of  direct 
representation  ;  but  is  not  conclusive — nor  necessarily  sufficient.8 
If  the  buyer  gave  his  notes,  it  is  enough  to  tender  them  in  re- 
turn at  the  trial.3  Other  similar  fraudulent  transactions  by  the 
same  buyer,  at  about  the  same  time,  are  competent  on  the  ques- 
tion of  scienter  and  intent.4 

10.  The  conversion.'] — Conversion  may  be  proved  under  an 
allegation  that  defendant  took  and  carried  away.5  An  allegation 
of  conversion  is  not  sustained  by  mere  proof  of  a  contract  and 
breach.6  It  is  not  necessary  to  show  a  manual  taking  of  the 
thing,  nor  that  defendant  has  applied  it  to  his  own  use ; '  but  it 
must  be  shown  that  the  defendant  either  did  some  positive 
wrongful  act  with  the  intention  to  appropriate  the  property  to 
himself,  or  to  deprive  the  rightful  owner  of  it,  or  destroyed  the 
property.8  Evidence  that  plaintiff  was  the  true  owner,  and  that 
the  thing  was  wrongfully  taken  from  his  possession  by  a  third 
person,  and  was  afterwards  in  defendant's  possession,  throws  on 
defendant  the  burden  of  accounting  for  the  possession.9 

A  refusal  to  deliver  may  be  with  such  circumstances  of  de- 
fiance of  plaintiffs  title,  or  of  appropriation,  as  in  itself  to  be  a 
conversion.  Where  this  is  not  the  case,  a  demand  and  refusal,  if 
unqualified  and.  unexplained,  is  usually  conclusive  evidence  of 
conversion,10  if  ability  to  comply  is  shown ;  otherwise,  not.11  If 


1  Johnson  v.  Monell,  2  Abb.  Ct.  App.  Dec.  470. 

9  Byrd  v.  Hal),  1  Abb.  Ct.  App.  Dec.  285 ;    Biggs  v.  Barry,  2  Curt.  C.  Ct.  259. 
For  other  rules,  see  Chapter  XXXIV,  on  actions  for  DECEIT  or  FEAUD. 

3  King  v.  Fitch,  2  Abb.  Ct.  App.  Dec.  508. 

4  Allison  v.  Matthieu,  3  Johns.  235:  Van  Kirk  v.  Wilds,  11  Barb.  520.     Compare 
Booth  v.  Powers,  56  N.  Y.  22,  rev'g  Flint  v.  Craig,  59  Barb.  319.      On  the  question 
of  a  fraudulent  combination  between  several  to  buy  in  the  name  of  one  for  the  bene- 
fit of  another,  the  declarations  of  either  forming  part  of  the  res  gestce,  and  evidence  of 
the  means  of  the  pretended  buyer  at  the  time  when  the  confederate  represented  him 
to  the  seller  to  be  wealthy,  are  competent.     Rea  v.  Missouri,  17   Wall.  544.     Com- 
pare Moore  v.  Meacham,  ION.  Y.  207. 

5  Hutchings  v.  Castle,  48  Cal.  152.     Compare  Eldridge  v.  Adams,  54  Barb.  417; 
Van  Valkenburgh  v.  Thayer,  57  Barb.   196;    Read  v.  Lambert.  10  Abb.  Pr.  N.  S. 
428. 

6  Walter  v.  Bennett,  16  N.  Y.  250;    Whitcomb  v.  Hungerford,  42  Barb.  177. 
Compare  Frost  v.  McCargar,  29  Barb.  617,  and  paragraph  1. 

7  Bristol  v.  Burt,  7  Johns.  254,  and  cases  cited  ;  Murray  v.  Burling,  10  Id.  172; 
Reynolds  v.  Shuler,  5  Cow.  323 ;  Connah  v.  Hale,  23  Wend.  462. 

8  Spoonerv.  Holmes,  102  Mass.  503,  s.  c.  3  Am.  R.  491,  and  cases  cite  1 ;  McMorris 
v.  Simpson,  21  Wend.  610,  and  cases  cited.     When  the  question  of  conversion  de- 
pends on  the  question  of  assent  by  plaintiff,  the  plaintiff  cannot  be  asked  on  his  own 
behalf,  "  did  you  ever  assent  T    The  question  is  whether  his  acts  manifested  assent, 
or  justified  the  defendant  in  believing  he  assented.     Stanton  v.  Crispell,  9  Hun, 
502. 

9  Paragraph  15.     Edw.  on  Bailm.  §  109. 

10  Holbrook  v.  Wight,  24  Wend.  169,  178.     Compare  Huntington  v.  Douglas,  1 
Robt  204,  and  cases  cited ;  Hill  v.  Govell,  1  N.  Y.  522 ;  Mount  v.  Derick,  ft  Hill, 
455  ;  storm  v.  Livingston,  6  Johns.  44;  Jackson  v.  Pixley,  9  Cush.  490;  Roberts  v. 
Berdell,  15  Abb.  Pr.  N.  S.  177. 

11  Bowman  v.  Eaton,  24  Barb.  528,  and  cases  cited. 


ACTIONS  FOR  CONVERSION.  627 

accompanied  by  a  reasonable  and  truthful  qualification,  it  is  not 
evidence  of  conversion.1  Where  mere  words  are  relied  on  as  evi- 
dence of  conversion,  the  circumstances  must  show  a  defiance  of 
plaintiff's  right.  Mere  refusal  to  act  when  plaintiff  might  take 
possession,  without  act  of  defendant,  is  not  enough.8 

Proof  of  intent  is  not  necessary.8 

11.  Demand^ — Demand  before  suit  if  necessary  may  be 
proved,  though  not  alleged.4  An  oral  demand,  if  sufficient  in 
itself,  may  be  proved  without  producing  a  demand  in  writing 
made  at  the  same  time.5 

12.  Value^\ — Plaintiff  must  give  some  evidence  of  value, 
though  his  allegation  of  value"  be  not  denied.6  The  mode  of  prov- 
ing the  value  of  chattels  has  been  already  stated.7  As  to  the  value 
of  a  thing  in  action — such  as  a  promissory  note — opinions  of 
witnesses  are  not  competent.  The  proper  inquiry  is  as  to  the 
Bolvency  of  the  debtor.^  Evidence  of  the  neglect  or  refusal  of 
the  debtor,  being  a  business  man,  to  pay  it  according  to  its  terms, 
is  competent,  as  tending  to  show  inability  to  pay.®  Defendant 
may  show  the  true  value,  though  he  has  not  denied  plaintiff's 
allegation  of  value.10 

Where  there  is  ground  for  presuming  fraud,  defendant  may 
be  held  liable  in  the  highest  amount,  if  he  will  not  produce  the 
article  or  disclose  its  actual  value.11 

13.  Declarations  of  former  owner.'] — The  competency  of  evi- 
dence of  the  declarations  and  admissions  of  a  former  owner  of 
the  property  is  stated  in  the  chapter  on  actions  by  and  against 
assignees.13 

14.  Title  in  defense.] — "When  title  and  right  of  possession  in 
plaintiff  are  in  issue,  defendant  may  show  them  to  have  been  in  a 
third  person.13     Otherwise,  in  an  action  for  forcible  and  wrongful 
taking  f rom  plaintiff's  possession.14    The  burden  is  on  defendant 
to  show  such  title  in  the  person  through  whom  he  claims,  as  will 


1  Holbrook  v.  Wight  (above) ;  Hagar  v.  Randall,  62  Me.  439-. 

1  Gillet  v.  Roberts,  BY  N.  Y.  33. 

1  Laverty  v.  Snethen,  68  N.  Y.  622 ;  Dudley  v.  Hawley,  40  Barb.  397,  affi'd  as 
Spraights  v.  Hawley,  39  N.  Y.  441 ;  Boyce  v.  Brockway,  31  N.  Y.  490,  and  cases 
cited. 

4  Si-riser  v.  Cowan,  56  Barb.  395 ;  and  see  Fullerton  v.  Dalton,  58  Barb.  236. 

*  Smith  v.  Young,  1  Campb.  439. 

6  Connors  v.  Meir,  2  E.  D.  Smith,  314. 

'  Pages  306-12  of  this  vol. 

8  Pottt-r  v.  Merchants'  Bank,  28  N.  Y.  641.  Compare  Outhouse  v.  Outhouse,  13 
Hun,  180,  132. 

»  Booth  v.  Powers,  56  N.  Y.  22,rev'g  Flint  v.  Craig,  59  Barb.  819. 

10  Chicago,  <fec.  R.  R.  Co.  v.  Northwestern  Union  Packet  Co.  88  Iowa,  377,  382. 

11  Armory  v.  Dclamire,  1  Sm.  L.  Cas.  163 ;  and  see  10  H.  L.  Cas.  589 ;  and  Free- 
ton  v.  Leighton,  6  Md.  88. 

18Pa;je  11  of  this  vol. 

13  Davis  v.  Hopnock,  6  Duer,  254;  Jackson  v.  Pixley,  9  Cush.  490. 

14  Kissam  v.  Roberts,  6  Bosw.  154. 


ACTIONS  FOR  CONVERSION. 

sustain  his  defense.1  A  general  denial  admits  any  evidence  going 
to  controvert  the  facts  which  plaintiff  is  bound  to  establish.2  A 
subsequently  derived  title,  if  relied  on  as  a  bar,8  must  be  specially 
pleaded.4 

15.  Title  derived  through  wrong-doer.~\ — If  the  true  owner,  bv 
his  own  act  and  consent,  has  given  to  another  the  written  evi- 
dence or  indicia5  of  ownership,  and  the  apparent  right  of  disposal 
of  the  property,  a  bona  Jide  purchaser  from  the  apparent  owner, 
or  one  who  advances  money,  or  incurs  responsibility  on  the  faith 
of  the  title,  will  be  protected.6    But  if  the  party  dealing  with  the 
apparent  owner,  had  actual  notice  of  the  rights  of  the  true  owner, 
he  acquires  no  better  title  than  the  transferor  or  apparent  owner 
could  lawfully  convey.7     In  the  case  of  securities,  the  word 
"  trustee  "  or  its  equivalent,  on  the  face  of  the  paper,  is  notice  of 
the  trust.8    Evidence  of  oral  notice  to  the  defendant,  that  the 
wrong-doer  was  acting  as  agent,  lets  in  evidence  of  his  actual  au- 
thority.9   When  plaintiff's  title  and  an  original  tortious  taking  is 
shown,  the  burden  is  on  the  purchaser  to  show  that  he  is  free 
from  fault,  and  lawfully  came  to  the  possession  in  good  faith.10 

16.  Illegality, .] — Evidence  that  defendant  received  possession 
from  plaintiff  under  an  illegal  contract,  does  not  necessarily  de- 
feat the  action,  for  it  is  not  founded  on  the  contract.11    Illegality 
in  the  contract  set  up  by  defendant  as  a  justification  of  his  de-; 
tention,  may  be  proved  by  plaintiff  in  rebuttal,  though  not  al- 
leged in  pleading,13  unless  the  contract  is  pleaded  as  a  counter- 
claim. 

17.  Mitigation  of  damages.'] — A  general  denial  admits  any 
matter  competent  in  reduction  of  damages.13  An  agreement  giving 
defendant  a  lien,  if  proved  without  objection  may  avail,  though 
not  alleged.14 

1  Brower  v.  Peabody,  13  N.  Y.  121,  s.  c.  2  Abb.  Pr.  211,  11  How.  Pr.  492. 

*  Andrews  v.  Bond,  16  Barb.  633,  642. 

8  Jacobs  v.  Remsen,  12  Abb.  Pr.  890,  s.  c.  85  Barb.  884. 

4  Wehle  v.  Butler,  12  Abb.  Pr.  N.  S.  139.   And  see  Bryant  v.  Bryant,  2  Robt.  612. 

'  Mere  possession  is  not  enough.    Penfield  v.  Dunbar,  64  Barb.  239. 

6  Bay  v.  Coddington,  6  Johns.  Ch.  64;  Porter  v.  Parks,  49  N.  Y.  664,  and  cas.  cit. 

7  Porter  v.  Parks  (above). 

8  Shaw  v.  Spencer,  100  Mass.  382  ;  1  Am.  R.  115  ;  Duncan  v.  Jaudon,  15  Wall.  175. 
One  who  purchases  public  stocks  from  an  agent,  under  a  mere  general  power  to  do 
and  transact  all  manner  of  business,  must  prove,  as  against  the  principal,  that  he 
bought  in  good  faith  and  paid  a  fair  consideration.     Hodge  v.  Combs,  1  Black,  192. 

»  Merchants  Bank  v.  Livingston,  74  N.  Y.  223. 

10  Cormier  v.  Batty,  41  Super.  Ct.  (J.  <fe  S.)  79;  except  in  case  of  negotiable 
paper,  2  Pars,  on  Pr.  N.  264. 

"  Frost  v.  Plumb,  40  Conn.  Ill,  s.  o.  16  Am.  R.  18;  Woodman  v.  Hubbard,  25  N. 
H.  67  ;  Hall  v.  Corcoran,  107  Mass.  251,  s.  c.  9  Am.  R.  30.  Contra,  Smith  v.  Rollins, 
11  R.  I.  464,  s.  o.  23  Am.  R.  609,  610,  615,  and  cases  cited;  and  60  Me.  528,  s.  o.  11 
Am.  R.  210. 

1S  Williams  v.  Tilt,  36  N.  Y.  819. 

13  Booth  v.  Powers,  56  N.  Y.  22.  rev'g  Flint  v.  Craig,  69  Barb.  819. 

M  Townsend  v.  Bargy,  67  N.  Y.  666. 


CHAPTER  XXXVI. 

ACTIONS  FOR  TRESPASS  TO  PERSONAL  PROPERTY. 

1.  Plaintiff's  title  or  possession.  6.  Action  for  wrongful  levy. 

2.  The  act  of  trespass.  7.  —  defendant's  sanction. 

3.  Value  and  damages.  8.  — justification. 

4.  Admissions  and  declarations.  9.  —  exemption  from  execution. 
8.  Character.  10.  Justification  by  tax  collector. 

1.  Plaintiff's  title  or  possession."] — If  plaintiff  shows  that  he 
had  actual  possession,  and  defendant's  forcible  taking,  plaintiff 
need  not  prove  his  title,1  even  though  it  be  in  issue.2    If  he  does 
not  prove  possession,  actual  or  constructive,  he  must  prove  title.3 
If  he  relies  on  title  under  an  execution  sale,  he  must  give  prima 
facie  evidence  of  the  validity  of  the  sale.4    The  mode  of  proof  of 
title  or  possession  is  stated  in  the  last  chapter. 

2.  The  act  of  trespass."} — Evidence  of  any  unlawful  interfer- 
ence with  plaintiff's  personal  property,  or  exercise  of  dominion 
over  it,  by  which  plaintiff  is  damnified — such  as  a  wrongful  levj^ 
— though  without  sale  or  removal,  is  enough.5    Evidence  of  mere 
non-feasance  does  not  make  a  trespasser  db  initio.     There  must 
be  a  positive  act,  such  as  if  done  without  authority  would  be  a 
trespass.8 

3.  Value  and  damages.] — The  value  of  the  property  destroyed 
need  not  be  proven  in  order  to  sustain  the  action  ; 7  but  must  be, 
to  sustain  a  verdict  for  substantial  damages  for  the  destruction.8 
Defendant  may  controvert  the  value  although  he  has  not  denied 
it  in  pleading.*    The  mode  of  proving  value  and  damage  has  al- 
ready been  stated.10 

Willful  wrong  or  malice  may  be  shown  as  a  ground  for  ex- 
emplary damages,11  even  though  actual  damage  was  nominal.13 


1  Hoyt  v.  Van  Alstyne,  15  Barb.  568  ;  Hurd  v.  West,  7  Cow.  752. 

1  Ki^sam  v.  Roberts,  6  Bosw.  124,  and  cases  cited. 

8  Carter  v.  Simpson,  7  Johns.  535.     Compare  Bas  v.  Steele,  3  Wash.  C.  Ct.  881. 

4  Id. 

5  Stewart  v.  "Wells,  6  Barb.  79,  and  cases  cited. 

«  Averell  v.  Smith,  17  Wall.  82  ;  Spencer's  Case,  1  Smith's  L.  Caa.  187,  221. 
"Whether  a  criminal  act  requires  proof  beyond  a  reasonable  doubt,  is  not  fully  settled. 
See  p.  495  of  this  vol.,  and  Thayer  v.  Boyle,  80  Me.  475  ;  Paul  v.  Currier,  63  Id.  626 
(deemed  overruled  in  Ellis  v.  Buzzell,  60  Id.  209) ;  Wells  v.  Head,  17  111.  204. 

1  Brent' v.  Kimball,  60  111.  85,  s.  c.  14  Am.  R.  35. 

8  Kenny  v.  Planer,  S  Daly,  131. 

'  Dunlap  v.  Snyder,  17  Barb.  661. 

10  Pages  306,  348  and  698  of  this  vol. ;  Nellis  v.  McCarn,  35  Barb.  116,  118. 

11  See  Lewis  v.  Hulkley,  4  Daly,  156. 
"  Allabach  v.  Ult,  61  N.  Y.  651. 

[629J 


630         ACTIONS  FOR  TRESPASS  TO  PERSONAL  PROPERTY". 

Express  or  actual  malice  may  be  inferred  from  a  mischievous  in- 
tent, or  inexcusable  recklessness.1  But  malicious  intent  is  not 
conclusively  inferred  from  the  act.2  It  is  only  a  presumption 
that  one  intends  the  ordinary  and  probable  consequences  of  his 
act,  and  this  presumption  may  be  rebutted  by  competent  evi- 
dence.8 When  competent  to  show  malice  in  an  officer's  act,  a 
witness  may  testify  that  it  was  done  in  an  offensive  and  insulting 
manner.4  Proof  or  admission  that  defendant  acted  without 
malice,  precludes  exemplary  damages;  and  evidence,  in  the 
nature  of  a  justification,  is  admissible  in  mitigation.5 

4.  Admissions  and  declarations^] — In  corroboration  of  cir- 
cumstantial evidence  that  defendant  or  his  agent  did  the  act,  ev- 
idence of  his  previous  declarations  of  intent  to  do  it  is  competent.8 
A  proposal  from  defendant  for  settlement  is  competent,  leaving 
it  to  the  jury,  if  ambiguous,  to  determine  whether  it  was  an  ad- 
mission of  trespass,  or  a  proposition  to  buy  peace.7     The  party 
against  whom  an  admission  is  proved  may  prove,  on  his  part,  the 
whole  of  the  conversation  at  that  time,  so  far  as  it  qualifies  the 
admission,  but  no  further.      His  declarations  at  the  time,  upon 
the  general  merits  of  the  case,  cannot  be  proved  in  his  favor.8 
"Where  a  combination  of  design  is  shown,  the  acts  and  declarations 
of  either  of  those  engaged  in  it  are  competent  against  the  others, 
within  limits  already  stated.9 

5.  Character.'} — Though  willful  injury  be  alleged,  character  is 
not  in  issue.10 

6.  Action  for  wrongful  levy.11] — In  an  action  for  a  wrongful 
levy,  the  plaintiff  proves  the  act  of  taking,  &c.,  and  the  damage, 
and  rests.     Defendant  then  proves  his  allegations  w  that  he,  or  one 
of  several  defendants,  was  a  public  officer,13  and  that  he  acted  un- 
der process,14  or  under  process  and  judgment.15    Plaintiff  may  then 
prove  whatever  new  matter  he  relies  on  in  avoidance — such  as 
exemption — although  not  pleaded.16 


1  Etchberry  v.  Levielle,  2  Hilt.  40,  and  cas.  cit.;  Stater.  Hessencamp,  17  Iowa,  25. 

«  Filkins  v.  People,  <frc.  of  N.  Y.  69  N.  Y.  106,  rev'g  1  Buffalo  Super.  Ct.  (Shel- 
don), 504. 

8  Id. 

4  Raisler  v.  Springer,  38  Ala.  703.  Compare  cases  cited  in  note  10  on  p.  699  of 
this  vol. 

6  Gelston  v.  Hoyt,  13  Johns.  561,  affi'g  Id.  141. 

6  See  Dodge  v.  Bache,  57  Penn.  St.  421 ;  Smith  v.  Causey,  28  Ala.  655. 

1  Prussel  v.  Knowles,  6  Miss.  (4  How.)  90. 

8  Garey  v.  Nicholson,  24  Wend.  350 ;  Rouse  v.  Whited,  25  N.  Y.  170. 

•  Page  190  of  this  vol. ;  Colt  v.  Eves,  12  Conn.  243. 

10  Thayer  v.  Boyle,  30  Me.  475. 

11  Justification  mast  be  alleged.     Graham  v.  Hanover,  18  How.  Pr.  144 ;  Root  v. 
Chandler,  10  Wend.  110. 

11  See,  also,  page  193  of  this  vol. 

"  Page  198. 

14  Page  201 ;  Werner  v.  Waters,  55  Barb.  591. 

16  Page  535. 

14  Dennis  v.  Snell,  54  Barb.  415. 


ACTIONS  FOR  TRESPASS  TO  PERSONAL  PROPERTY.     631 

7.  —  defendants  sanction^ — For  the  purpose  of  charging  the 
creditor  in  process  against  a  third  person,  with  trespass  by  its 
wrongful  levy  on  plaintiff's  property,  there  is  no  presumption 
that  he  authorized  such  levy,1  and  evidence  that  his  attorney  did 
so  is  not  alone  enough  against  him.2     But  evidence  that  he  referred 
the  officer  to  his  attorney  for  instructions,  and  the  latter  sanc- 
tioned the  levy,  to  the  knowledge  of  defendant ; 3  or  that  after  the 
taking  he  induced  the  officer  to  detain  and  sell  the  property ; 4  or 
evidence  that  he  received  the  proceeds,  together  with  evidence 
that  he  admitted  he  had  attached  the  goods,*  or  that  on  learning 
the  facts  he  affirmed  his  claim,6  or  even  omitted  to  repudiate  the 
trespass,7  is  enough.     Evidence  that  one  partner  directed  a  levy 
of  an  execution  for  a  partnership  debt,  raises  a  presumption  that 
the  other  partners  assented.8    Corporate  authority  is  not  pre- 
sumed.9    If  defendant's  instructions  are  relied  on,  and  they  were 
exclusively  in  writing,  they  should  be  produced  or  accounted  for 
as  the  best  evidence.1" 

Defendant's  responsibility  for  the  officer's  act  being  thus 
shown,  the  officer's  declarations  in  following  the  instructions  are 
competent  against  him.11 

8.  — justification.'] — Justification  is  not  admissible  under  a 
general  denial,12  except  by  a  public  officer,  or  one  acting  under 
statute,  in  a  case  within  the  Revised  Statutes.13    Justification  by 
proof  of  ownership  in  a  third  person,  cannot  be  proved  unless 
the  answer  not  only  alleges  such  property  in  the  third  person, 
but  also  connects  defendant  with  such  owner  by  averring  that 
the  taking  was  by  his  authority,  or  by  virtue  of  process  or  right 
against  such  owner.14    If  defendant  acted  under  authority  of  a 
court,  the  record  appointing  him  is  competent,  though  made  in  a 
proceeding  in  which  the  parties  were  not  the  same.15    The  general 
rules  as  to  official  justification  have  been  already  stated.16    Evi- 


1  The  law  will  not  presume  any  one  to  be  a  wrong-doer.  Averill  v.  Williams, 
1  Den.  501.  Contra,  Newberry  v.  Lee,  3  Hill,  523 ;  compare  Copley  v.  Rose,  2  N.  Y. 
115. 

a  Averill  v.  Williams,  4  Den.  295.     Compare  Judson  v.  Cook,  11  Barb.  642. 

*  Armstrong  v.  Duboig,  1  Abb.  Ct.  App.  Dec.  8. 

4  Root  v.  Chandler,  10  Wend.  110. 

5  Halliday  v.  Hamilton,  11  Wall.  560,  566. 
8  Hen-man  v.  Gilbert,  8  Hun,  253. 

7  Murray  v.  Bininger,  3  Abb.  Ct.  App.  Dec.  336. 

8  Chambers  v.  Clearwater,  1  Abb.  Ct.  App.  Dec.  341,  affi'g  Schoonmaker  v.  Clear- 
water,  41  Barb.  200. 

»  Watson  v.  Bennett,  12  Barb.  196. 

10  Stebbins  v.  Cooper,  4  Den.  191. 

11  Raisler  v.  Springer,  38  Ala.  703. 

11  Root  v.  Chandler,  10  Wend.  110;  Butterworth  v.  Soper,  13  Johns.  443. 

13  Page  201  of  this  vol.     For  short  mode  of  pleading  in  action  for  doing  an  official 
act  or  an  act  by  statutory  authority,  see  2  N.  Y.  R.  S.  853  (3  Id.  6th  ed.  614),  §§  1«, 
17. 

14  Kissam  v.  Roberts,  6  Bosw.  154. 

16  State  v.  Hyde.  29  Conn.  664 ;  and  see  Plummer  v.  Harbut,  5  Iowa,  308. 
"  Pages  198-202  of  this  voL 


632         ACTIONS  FOR  TRESPASS  TO  PERSONAL  PROPERTY. 

dence  that  defendant  professed  at  the  time  of  the  alleged  trespass 
to  act  under  warrant,  does  not  raise  a  presumption  of  authority.1 

An  officer  sued  for  executing  regular  process  is  not  bound  to 
prove  the  judgment,2  except,  perhaps,  where  it  is  a  judgment  of 
a  justice's  court  or  like  inferior  jurisdiction,8  or  unless  he  relies 
on  facts  established  by  it,  as,  for  instance,  to  negative  a  claim  of 
exemption,4  or  as  a  foundation  for  impeaching  a  transfer  as  fraud- 
ulent?5 But  a  party  to  the  process  must  prove  not  only  the  exe- 
cution, but  also  the  judgment  on  which  it  issued  ;6  and  jurisdiction 
must  affirmatively  appear,7  if  not  presumable.8  If  the  levy  was 
under  attachment,  judgment  in  the  attachment  suit,  though 
recovered  after  the  present  action  had  been  brought,  is  conclusive 
evidence  of  the  debt.9 

Return  of  the  execution  need  not  be  shown ;  and  the  want  of 
an  indorsement  on  the  execution,  of  the  time  it  was  received  by 
the  officer,  does  not  aif ect  its  competency ;  and  the  time  of  receiv- 
ing it  may  be  shown  by  parol.10  The  want  of  a  return  may  be 
explained  by  parol.11  Formal  evidence  of  absolute  vacatur,  proves 
the  party,  but  not  the  officer,  to  be  a  trespasser  ab  initio.™ 

Evidence  of  plaintiff's  oral  admission  of  the  validity  of  the 
process,  &c.,  is  not  competent,13  unless  acted  on  so  as  to  raise  an 
estoppel.14 

Ii  the  thing  was  levied  on  while  in  possession  of  a  third  per- 
son, the  burden  of  proof  as  to  title  is  upon  the  officer.15  The 
inquisition  of  a  sheriff's  jury  against  the  plaintiff,  on  his  claim  to 
the  property  levied  on,  is  not  competent  evidence  in  the  plaintiff's 
favor  and  against  the  officer.16  Even  though  the  levy  was  under 
attachment  before  judgment,  defendant  may  show  that  plaintiff's 
claim  of  title  was  fraudulent  as  against  the  attaching  creditors ; n 


1  Brachett  v.  Hayden,  15  Me.  347 ;  and  see  pp.  198-202  of  this  vol. 
8  Sheldon  v.  Van  Buskirk,  2  N.  Y.  473;  Slmw  v.  Davis,  55  Barb.  389 ;  Holmes  v. 
Nuncaster,  12  Johns.  395.     Contra,  Underbill  v.  Reinor,  2  Hilt.  319. 

3  Cleveland  v.  Rogers,  6  Wend.  438. 

4  Dennis  v.  Snell,  54  Barb.  411. 

8  Sheldon  v.  Van  Buskirk,  2  N.  Y.  473. 

6  Newberry  v.  Lee,  8  Hill,  523,  s.  p.  Simpson  v.  Watrns,  Id.  619 ;  Gelhaar  v. 
ROBS,  1  Hilt.  117.- 

1  See  Walker  v.  Mosely,  6  Den.  102. 

8  See  page  644  of  this  vol. 

9  Rinchey  Y.  Stryker,  28  N.  Y.  45,  s.  c.  26  How.  Pr.  75 ;  and  less  fully,  31  N.  Y.  140. 

10  Bealls  v.  Guernsey,  8  Johns.  62. 

11  Bealls  v.  Guernsey,  8  Johns.  62  ;  Frost  v.  Shapleigh,  7  Greenl.  236.     Compare 
Gault  v.  Woodbridge,  4  McLean,  329. 

18  Kerr  v.  Mount,  28  N.  Y.  659.     Compare  Newberry  v.  Lee  3  Hill,  523. 
"Bush  v.  Hewett,  4  N.  Y.  Leg.  Obs.  384;  Moore  v.  Hitchcock,  4  Wend.  292. 
Compare  Smith  v.  Hill.  22  Barb.  656. 

14  Price  v.  Harwood,  3  Campb.  108. 

15  Merritt  v.  Lyon,  3  Barb.  110.     For  the  distinction  in  this  respect  between  pro- 
cess against  property  of  a  debtor,  generally,  and  that  against  specific  things,  sea 
Foster  v.  Peltibone,  20  Barb.  850 ;  Buck  v.  Colbath,  3  Wall.  343. 

14  Townsend  v.  Phillips,  10  Johns.  98  ;  Sheldon  v.  Loomis,  28  Cal.  122 
»  Rinchey  v.  Stryker,  28  N.  Y.  45 ;  e.  o.  26  How.  Pr.  75-;  Hall  v.  Stryker,  27  N. 
Y.  696,  rev'g  29  Barb.  105,  s.  c.  9  Abb.  Pr.  842;  Pierce  v.  Hill,  35  Mich.'l94. 


ACTIONS  FOR  TRESPASS  TO  PERSONAL  PROPERTY.    633 

and  this  he  may  show  under  an  issue  as  to  ownership,  without 
express  allegation  of  fraud.1 

9.  —  exemption  from  execution  J]  — Plaintiff  may  prove  his  prop- 
erty exempt  from  execution,  under  a  general  allegation  of  wrong- 
ful taking.2    One  claiming  an  exemption  must  show  the  facts 
making  it  out  ;3  the  necessity  of  the  articles  ;4  and  the  value,  in 
its  relation  to  the  statute  limit.5    The  fact  of  being  a  householder 
cannot  be  proved  by  general  reputation ; 6  but  a  witness  may  tes- . 
tify  directly  to  the  fact  in  the  first  instance,  subject  to  cross- 
examination  as  to  details ;  but  cannot  testify  to  his  opinion  on 
that  question  ; 7  nor  on  the  necessity  of  the  articles.8    The  evi- 
dence of  necessity  must  be  directed  to  the  character  of  the  prop- 
erty in  its  relation  to  the  vocation,  not  to  the  sufficiency  or  insuffi- 
ciency of  plaintiff's  other  property.9 

10.  Justification  by  tax  collector.'] — A  collector  of  taxes  sued 
for  a  levy  has  the  burden  of  showing  that  the  tax  was  exacted 
by  authority  of  law ; 10  but  proving  a  warrant  and  assessment  roll 
which  are  regular  on  their  face,  is  prima,  facie  enough,11  without 
proving  the  proceedings  by  which  the  tax  was  laid.12 


1  Deitsch  v.  Wiggins,  15  Wall.  539;  Adler  r.  Cole,  12  Wis.  188;  Chamberlain 
v.  Stern,  11  Nev.  268.     Contra,  see  Demick  v.  Chapman,  11  Johns.  132. 
8  Stevens  v.  Somerindyke,  4  E.  D.  Smith,  418. 

3  Griffin  v.  Sutherland,  14  Barb.  456  ;  Carnrick  v.  Myers,  Id.  9 ;  Clapp  v.  Thomas, 
6  Allen,  158. 

4  Van  Sickler  v.  Jacobs,  14  Johns.  434. 

*  Chambers  v.  Halstead,  Hill  &  D.  Supp.  384. 
6  Eastman  v.  Caswell,  8  How.  Pr.  75. 
1  See  pages  103-7  of  this  vol. 

8  Whitmarsh  v.  Angle,  3  Code  R.  53,  s.  c.  3  Mo.  Law  R.  N.  S.  595 

9  Wilcox  v.  Hawley,  31  N.  Y.  648  ;  Smith  v.  Slade.  57  Barb.  637;  Whitmarsh  v. 
Angle,  3  CoJe  R.  53,  8.  c.  8  Mo.  Law  R.  N.  S.  595.     As  to  what  shows  professional 
vocation,  see  Sutton  v.  Facey,  1  Mich.  243,  247. 

10  Wilkinson  v.  Greely,  1  Curt.  C.  Ct.  439. 

11  Johnson  v.  Learn,  30  Barb.  616. 

"  Sheldon  v.  Van  Boskirk,  2  N.  Y.  473. 


CHAPTER   XXXVII. 

ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY. 

1.  Plaintiff's  title.  6.  Defense  ;  Disproof  of  the  trespass. 

2.  Possession.  7.  Justification. 

8.  Acts  of  trespass.  8.  Defendant's  title  and  possession. 

4.  The  purpose  of  an  act.  9.  Easements,  ways,  <tc. 

6.  Damages.  10.  License. 

1.  Plaintiff's  titleJ] — The  usual  mode  of  proving  plaintiff's 
title  is  to  produce  and  prove  the  deed  *  or  will,2  or  other  instru- 
ment under  which  plaintiff  holds  (or  that  under  which  his  ancestor 
held,  coupled  with  proof  of  inheritance),  and  to  give  oral  evidence 
of  his  possession  under  it.  It  is  enough  for  either  party  to  show 
title  to  that  part  where  the  trespass  was  committed.3  Paper 
title  is  not  enough,  without  any  evidence  that  plaintiff,  or  those 
under  whom  he  derives  such  title,  have  ever  had  possession.4 
Possession  in  fact,5  or  legal  right  to  immediate  possession,6  must 
be  shown,  or  else  a  right  in  reversion  or  remainder,7  coupled  with 
injury  to  the  inheritance.8  A  title  alleged,  which  the  answer 
does  not  deny,9  or  expressly  admits  and  claims  under,10  plaintiff 
need  not  prove,  even  though  the  possession  be  vacant.11  Evidence 
of  usage  is  competent  in  aid  of  the  interpretation  of  a  deed,  if  it 
be  ambiguous ;  ^  but  not  if  it  be  unambiguous.13  Bare  possession, 
if  exclusive  and  peaceable,  is  enough  to  show  title,14  if  no  para- 


1  See  Chapter  XXVII.     A  breach  of  condition  in  plaintiff's  deed  does  not  avail 
a  defendant  who  is  a  stranger  to  the  title.    Robie  v.  Sedgwick,  4  Abb.  Ct.  App.  Dec.  73. 
*  See  Chapter  V. 

3  King  v.  Dunn,  21  Wend.  253  ;  Rich  v.  Rich,  16  Id.  663. 

4  Gardner  v.  Heartt,  1  N.  Y.  528,  rev'g  2  Barb.  166. 
6  Frost  v.  Duncan,  19  Barb.  560,  and  cases  cited. 

6  Adams  v.  Farr,  2  Hun,  473,  B.  c.  5  Supm.  Ot.  (T.  <fe  C.)  69;  and  see  Starr  y. 
Jackson,  )  1  Mass.  674,  and  cases  cited. 

1  For  this  purpose  bare  possession  by  the  tenant  is  not  enough.  "Wickham  v. 
Freeman,  12  Johns.  183. 

8  1  N.  Y.  R.  S.  750,  §  8 ;  Van  Deusen  v.  Young,  29  N.  Y.  9 ;  29  Barb.  9 ;  Wood 
v.  City  of  Williamsburgh,  46  Id.  601. 

»  O'Reilly  v.  Davies,  4  Sandf.  722. 

10  McBurney  v.  Cutler,  18  Barb.  203. 

11  O'Reilly  v.  Davies  (above). 

14  Livingston  v.  Ten  Broeck,  16  Johns.  14. 

11  Parsons  v.  Miller,  16  Wend.  561.    On  this  subject,  see  pp.  294-7  of  this  vol. 

14  1  Sedgw.  on  Dam.  7th  ed.  270;  Palmer  v.  Aldridge,  16  Barb.  131 ;  Bogert  v. 
Haight,  20  Barb.  251 ;  and  see  Jones  v.  Williams,  2  Mees.  <fc  W.  326 ;  Corporation 
of  Hastings  v.  Ivall,  L.  R.  19  Eq.  Cas.  668,  s.  c.  13  Moak's  Eng.  R.  601.  Proof  that 
the  wife  put  her  husband  in  possession,  and  that  he  built  and  occupied  with  her,  is 
sufficient  evidence  of  possession  in  him  as  against  a  third  person.  Alexander  v. 
Hard,  64  N.  Y.  228.  Compare  Chapter  VL 

[634] 


ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY.      635 

mount  possession  or  other  right  appears.1  Even  if  it  appear  that 
plaintiff  holds  under  a  written  instrument,  such  as  a  lease,  the 
instrument  need  not  be  produced  as  against  a  stranger  and  wrong- 
doer.2 If  objected  to,  a  witness  should  not  be  allowed  to  testify 
that  one  person  was  a  tenant  of  another ;  but  should  state  the 
facts.3  Oral  evidence  is  competent  to  show  whether  certain  parts 
are  or  are  not  parcel  of  the  premises  ambiguously  described  in 
the  instrument.* 

2.  Possession."] — Possession  may  be  shown  by  acts  of  owner- 
ship ;5  and  evidence  of  these  is  not  ordinarily  confined  to  the  pre- 
cise spot  on  which  the  alleged  trespass  may  have  been  committed ; 
acts  done  on  other  parts  o?  the  same  holding  or  inclosure,  may 
be  shown  if  the  common  character  of  locality  raises  a  reasonable 
inference  that  the  place  in  dispute  belonged  to  the  plaintiff  if  the 
other  parts  did.6    A  witness  having  testified  to  acts  of  ownership 
on  the  part  of  one  party,  may  be  asked  if  the  other  directed  him 
to  do  them.7    A  witness  may  testify  directly  to  the  fact  of  pos- 
session, if  he  can  do  so  positively  and  not  as  matter  of  opinion  or 
inference ;  but  subject,  of  course,  to  cross-examination  as  to  de- 
tails.8 

If  plaintiff  does  not  show  title,  and  relies  on  a  possession 
which  is  constructive  as  to  a  part  of  the  premises,  he  should 
prove  that  he  claimed  title  to  the  whole  lot  under  a  written  in- 
strument purporting  to  give  him  title  to  the  whole,  and  hence 
sufficient  to  give  color  of  title  to  the  whole,  and  that  he  was  in 
actual  possession  of  a  part.9 

3.  Acts  of  trespass.'] — The  allegation  of  unlawful  entry  on  the 
premises,  and  of  unlawful  removal  or  injury  of  property  there, 
are  to  be  distinguished ;  and  an  allegation  of  one  of  these  facts 
only,  will  not  admit  evidence  of  the  other.10    If  both  are  alleged, 
taking  issue  as  to  one  only,  admits  the  other ; u  but  if  both  are  in 


I  Kellogg  v.  Vollentine,  21  How.  Pr.  226. 

s  Walker  v.  Wilson,  8  Bosw.  580  ;  Althouse  v.  Rice,  4  E.  D.  Smith,  347.  But  a 
bald  allegation  that  plaintiff,  by  virtue  of  a  contract  with  one  A.,  was  entitled  to  the 
exclusive  possession  of  the  premises,  without  any  facts  to  support  the  conclusion,  is 
not  enough.  Garner  v.  McCullough,  48  Mo.  318. 

8  Parker  v.  Haggerty,  1  Ala.  632,  634. 

4  Cary  v.  Thompson,  1  Daly,  85 ;  Crawfdfrd  v.  Morris,  5  Gratt.  90 ;  and  see 
p.  527  of  this  vol. 

6  Such  as  paying  rents.  Arden  v.  Kermit,  Anth.  N.  P.  112;  cutting  wood,  Stan- 
ley v.  White,  14  East,  832  ;  or  giving  leave  to  cut  wood,  Hager  v.  Hager,  88  Barb.  92. 

6  Jones  v.  Williams,  2  Mees.  <fe  W.  826  ;  1  Tayl.  Ev.  §  803  ;  1  Whart.  Ev.  69,  §  45. 
The  making  of  payments  of  taxes,  rents,  and  the  like,  as  acts  of  ownership,  may  be 
proved  by  parol,  without  producing  or  accounting  for  the  payee's  receipts.     Ilinch- 
man  v.  Whetstone,  23  111.  185,  187  ;  Dennett  v.  Crocker,  8  Me.  239. 

7  Houghtaling  v.  Houghtaling,  56  Barb.  194. 

8  HarJenbur^h  V.  Crury,  50  Barb.  82 ;  nnd  see  p.   623  of  this  vol.     Compare 
Jones  v.  Merrimack  River  Lumber  Co.  31  N.  H.  381,  385. 

9  Edwards  v.  Noyes,  65  N.  Y.  125.     Compare  Bynum  v.  Thompson,  3  Ired.  N.  C. 
(L.)  578,  681. 

»  Kenny  v.  Planer,  8  Daly,  131 ;  Turner  v.  McCarthy,  4  E.  D.  Smith,  247. 

II  Knapp  v.  Slocomb,  9  Gray,  73. 


636  ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY. 

issne,  failure  to  prove  either  is  a  variance,1  though  not  necessarily 
fatal.3 

Plaintiff  is  not  obliged  to  prove  trespass  on  the  whole  of  the 
close  alleged,  but  he  may  prove  one  on  anv  part.3  Evidence  of 
a  wrongful  intrusion,  however  slight,  is  evidence  of  a  trespass.* 

Under  an  allegation  of  a  trespass  on  a  day  named,  and  on 
divers  other  times  oetween  it  and  another  day,  plaintiff  may  prove 
any  number  of  trespasses  committed  between  the  times  specified  ;5 
and  he  may  properly  be  allowed  to  prove  another  act  anterior  to 
the  earlier  day,  if  it  does  not  appear  that  defendant  is  misled.6 

Against  a  co-tenant  in  common,  it  is  necessary  to  prove  a  case 
of  ouster.7 

4.  The  purpose  of  an  act?\ — The  purpose  of  an  act,  if  rele- 
vant, may  be  shown  by  proving  declarations  characterizing  the 
act,9  if  made  at  the  time.10    A  question  calling  for  mere  intention 
uncommunicated  may  be  objectionable,  when  a  question  as  to  the 
act  accomplished,  the  manner,  &c.,  would  be  proper.11 

5.  Damages^] — To  entitle  to  nominal  damages,  it  is  enough  to 
prove  an  unlawful  entry.12    Plaintiff  may  recover  on  proving  his 
right  to  single  damages,  although  his  complaint  be  framed  by  ref- 
erence to  the  statute  giving  treble  damages.13    In  an  action  by 
the  reversioner  or  remainder-man,  injury  to  the  inheritance  sus- 
tains the  action,  although  an  allegation  of  disturbance  in  enjoy- 
ment be  unproved.14    Distinct  and  unconnected  acts  of  some  of 
several  joint  defendants  are  not  competent,  in  aggravation,  as 
against  the  others.15    On  questions  of  value  and  damage,  the  opin- 
ions of  witnesses  are  competent,  within  limits  already  stated.16    It 
is  not  ordinarily  allowable  to  prove  the  amount  of  damage  by  the 


1  Howe  v.  Willson,  1  Den.  181. 

s  Colton  v.  Jones,  7  Robt.  164.  As  to  trespass  for  forcible  disseizin,  2  N.  T.  R.  S. 
338(3  Id.  6th  ed.  602),  |  4;  see  Willard  v.  Warren,  17  Wend.  257. 

8  Rich  v.  Rich,  16  Wend.  674 ;  Stewart  v.  Wallis,  30  Barb.  344. 

4  Ellis  v.  Loftus  Iron  Co.  L.  R.  10  C.  P.  10,  8.  c.  11  Moak's  Eng.  214.  In  deter- 
mining  the  question  of  trespass  or  no  trespass,  the  court  cannot  measure  the  amount  of 
the  alleged  trespass;  if  the  defendant  place  a  part  of  his  foot  on  the  plaintiffs  land 
unlawfully,  it  is  in  law  as  much  a  trespass  as  if  he  had  walked  half  a  mile  on  it.  Id. 

6  Richardson  v.  Northrup,  66  Barb.  85. 

8  Duboia  v.  Beaver,  25  N.  Y.  123,  affi'g  Relyea  y.  Beaver,  34  Barb.  647.  Com- 
pare United  States  v.  Kennedy,  3  McLean,  175 ;  Joralimon  v.  Pierpont,  Anth.  N.  P.  59. 

7  Dubois  v.  Beaver  (above);  Jacobs  v.  Seward,  L.  R.  H.  of  L.  Cases,  464,  s.  c.  2 
Moak's  Eng.  496.    Compare  Wood  v.  Phillips,  43  N.  Y.  152,  overruling  King  v. 
Phillips,  1  Lans.  421. 

8  See,  on  this  queslion,  pages  618,  620  of  this  vol. 

9  Stephens  v.  McCloy,  36  Iowa,  659 ;  Welch  v.  Louis,  31  III  446 ;  Sears  v.  Hoyt, 
87  Conn.  406. 

10  See  Noyes  v.  Ward.  19  Conn.  250 ;  and  pp.  587-9,  and  648  of  this  voL 

11  Niles  v.  Patch,  13  Gray,  254,  258. 

18  Dixon  v.  Clow,  24  Wend.  190  ;  1  Sedgw.  on  Dam.  7th  ed.  266. 
18  Starkweather  v.  Quigley,  7  Hun,  26. 

14  Eno  v.  Del  Vecchio,  6  Duer,  17. 

15  Higby  v.  Williams,  16  Johns.  215. 

"  Honsee  v.  Hammond,  39  Barb.  89.     Pages  306-12  of  this  voL 


ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY.  637 

direct  statement  of  a  witness,  for  this  wonld  be  to  substitute  his 
conclusion  for  that  of  the  jury  ;x  but  a  qualified  witness  may  state 
the  value  of  property  before  the  injury  and  after  it ;  and,  if  he 
states  the  facts,  his  conclusion  as.  to  the  pecuniary  injury  to  a  spe- 
cific thing  having  a  market  value  is  competent,2  and  is  not  made 
incompetent  by  the  circumstance  that,  assuming  the  truth  of  his 
conclusion,  it  is  the  sum  for  which  the  jury  should  give  a  verdict.3 
A  qualified  witness  may  state  how  much  the  land  would  have 
produced  but  for  the  injury,  and  how  much  less  in  consequence 
of  the  injury,  and  the  like ;  and  the  market  value  of  the  crops 
had  they  not  been  injured.4  So  far  as  his  opinion  depends  on  an 
ordinary  computation  which  a  jury  may  as  well  make  as  the 
witness,  he  cannot  substitute  the  results  of  his  estimate  for  theirs.5 

6.  Defense  ;  Disproof  of  trespass.] — Under  a  denial,  the  de- 
fendant's evidence  in  disproof  of  trespass  need  only  be  directed 
to  the  part  of  the  close  to  which  plaintiffs  evidence  of  trespass 
was  directed.6 

7.  Justification.'] — Defendant  may  prove  title  to  a  part  of  the 
alleged  close,  and  show  that  the  alleged  trespass  was  committed 
there.     He  need  not  disprove  trespass  on  the  other  part.     The 
burden,  then,  is  thrown  on  plaintiff  to  show  that  trespass  was 
committed  on  the  part  not  covered  by  the  justification.7    A  de- 
fendant who  relies  on  necessity  as  a  justification  must  show  it 
clearly.8    Witnesses  having  no  special  or  peculiar  experience  or 
knowledge  of  the  subject  are  not  ordinarily  competent  to  express 
an  opinion  on  the  necessity.9 

8.  Defendant's  title  and  possession.] — Under  an  allegation  of 
title  in,  and  license  from,  a  third  person,  evidence  of  title  in  de- 
fendant is  not  admissible.10    If  plaintiff  relies  on  evidence  of  pos- 
session in  himself,  defendant  may,  under  a  denial,  prove  posses- 
sion, even  in  a  stranger  with  whom  defendant  shows  no  connec- 
tion.11 

As  to  the  mode  of  proving  defendant's  title  and  possession, 
the  same  rules  apply  as  in  proving  those  of  plaintiff.12    Defendant 


1  Richardson  v.  Northrup,  66  Barb.  85 ;  Dolittle  Y.  Eddy,  7  Barb.  74 ;  and  see 
cases  collected  iD  3  Abb.  N.  Y.  Dig.  new  ed.  pp.  79,  195. 

9  Id. 

8  Pages  306-12  of  this  vol. 

4  Armstrong  v.  Smith,  44  Barb.  120,  and  cases  cited.  Compare  Sfiamans  v.  Smith. 
46  Id.  320. 

6  Hollis  v.  Wagar,  1  Lans.  4. 

•  Rich  v.  Rich,  16  Wend.  674. 

7  Rich  v.  Rich,  16  Wend.  674.     In  other  words,  the  plaintiff  must  always  locate 
the  trespass,  in  order  to  show  it  wrongful  (CowEN,  J.).     Id. 

8  Hicks  v.  Dorn,  42  N.  Y.  47,  s.  o.  9  Abb.  Pr.  N.  ti.  47,  affi'g  1  Lans.  81,  &  c.  54 
Barb.  174. 

9  See  Mayor,  <fec.  of  N.  Y.  v.  Pentz,  24  "Wend.  668  ;  and  pages  178,  310  of  this  voL 

10  Coan  v.  O?good,  15  Barb.  588. 

11  Miller  v.  Decker,  40  Barb.  228,  and  cases  cited. 
19  Paragraphs  1  and  2. 


638  ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY. 

may  put  in  evidence  deeds,  to  show  possession  tinder  bona  fide 
claim  of  title.1  A  prescriptive  right,  it  relied  on,  should  be  plead- 
ed to  be  admissible  in  evidence.2  The  designation  of  land  taken 
by  a  railway  company,  filed  by  the  company  under  the  statute,  is 
conclusive  evidence  of  the  land  taken,  and  cannot  be  controlled 
by  extrinsic  evidence.3 

9.  Easements.'] — The  rules  for  proving  the  existence  of  an 
easement  in  justification,  are  the  same  as  those  stated  in  the  next 
chapter  for  proving  it  in  an  action  for  obstructing  its  enjoyment. 

10.  License.'] — License  must  be  pleaded  ;  it  is  not  admissible 
under  a  general  denial.4    An  oral  license,  acted  out  before  revo- 
cation, may  be  proved  notwithstanding  the  statute  of  frauds,5  and 
notwithstanding  a  written  agreement  of  the  parties  requiring  a 
writing.6    License  by  an  agent  cannot  be  proved  by  evidence  of 
the  subsequent  admissions  of  the  agent.7    A  license  may  be  in- 
ferred from  the  acts  of  the  parties  in  connection  with  the  silent 
acquiescence  of  the  plaintiff  ;  and  such  acquiescence  may  inure  as 
a  license8  by  estoppel,  when  the  other  requisites  to  create  an 
estoppel  in  pais  concur.9    A  license  to  enter  plaintiff's  premises 
is  not  necessarily  implied  from  the  fact  that  defendant's  goods, 
to  which  he  had  legal  right  of  immediate  possession,  were  there.10 

If  a  writing  is  apparently  a  mere  license,  the  burden  is  on 
defendant  to  show  that  it  was  part  of  a  contract,  and,  therefore, 
not  revocable,  if  he  relies  on  that  fact.11  An  intent  to  exclude 
the  grantor,  though  not  expressed  in  the  body  of  a  license,  may 
be  implied  from  the  nature  and  extent  of  the  consideration.18 


I  Wood  v.  Lafayette,  68  N.  Y.  181,  190. 

8  Sale  v.  Pratt,  19  Pick.  191 ;  and  see  Cortelyou  v.  Van  Brandt,  2  Johns.  357; 
Kent  v.  Waite,  10  Pick.  138.  Existence  for  sixty  years,  with  nothing  to  show  com- 
mencement,  is  admissible  under  an  allegation  of  existence  from  time  immemorial. 
Odiorne  v.  Wade,  5  Pick.  421. 

8  1  Redf.  Hy.  260  (6,  7). 

4  Haight  v.  Badgeley,  15  Barb.  499.     Except  where  the  action  is  not  for  an  ordi- 
nary trespass,  but  for  a  special  wrong — such  as  injury  to  the  highway  adjoining 

S'aintiff — when  a  highway  surveyor's  license  is  admissible  under  the  general  issue, 
unson  v.  Mallory,  36  Conn.  165. 

5  See  Babcock  v.  Utter,  1  Abb.  Ct,  App.  Dec.  27. 

6  Pierrepont  v.  Barnard,  6  N.  Y.  279,  rev'g  5  Barb.  364. 

7  Hubbard  v.  Elmer,  7  Wend.  446.  448,  s.  p.  2  Wheat.  360.     For  the  principle 
applicable  on  this  point,  see  page  44  of  this  vol. 

8  Martin  v.  Houghton,  1  Abb.  Pr.  N.  S.  339,  B.  c.  45  Barb.  258,  and  31  How.  Pr. 
82.     Compare  Babcock  v.  Utter  (above). 

9  Walter  v.  Post,  6  Duer,  363,  8.  c.  4  Abb.  Pr.  382. 
10  McLeod  v.  Jones,  105  Mass.  403. 

II  Tillotson  v.  Preston,  7  Johns.  285. 

12  Massot  v.  Moses,  3  S.  C.  168,  s.  c.  16  Am.  R.  697.  WILLAED,  J.,  says:  The 
proper  conclusion  from  the  cases  would  seem  to  be,  that  grants  of  a  right  to  enter 
the  lands  of  the  grantor,  and  sever  therefrom  and  appropriate  its  products  or  mineral 
contents,  are  subject  to  a  presumption,  not  applicable  to  the  case  of  a  sale  of  person- 
alty, that  the  grantor  did  not  intend  to  exclude  his  own  proprietary  right  to  a  con- 
current enjoyment  with  the  licensee  of  the  power  granted.  If  this  view  is  correct, 
any  words  evidencing  an  intent  on  the  part  of  the  grantor  to  part  with  his  proprie- 


ACTIONS  FOR  TRESPASS  TO  REAL  PROPERTY.      639 

Oral  evidence  to  explain  a  license  is  competent  within  general 
limits  already  stated. 


tary  rights  over  the  subject-matter  to  which  the  grant  relates,  would  tend  to  rebut 
such  presumption.  To  words  tending  to  evidence  an  intent  on  the  part  of  the 
grantor  to  exclude  himself  from  the  enjoyment  concurrently  with  the  grantee  of  the 
right  conferred,  the  same  force  in  respect  to  such  presumption  should  be  given  that 
would  be  given  had  the  subject-matter  been  other  than  realty.  The  presumption, 
indeed,  demands  some  positive  evidence  of  an  exclusive  intent,  but  does  not  influence 
the  force  of  the  evidence  of  such  intent.  Id. 

1  Pages  294-8,  483,  508,  524  and  525  of  this  vol.  And  see  Goodrich  v.  Long- 
ley,  4  Gray,  879,  383.  Thus,  under  a  license  to  defendants  to  take  "  all  the  stone  of 
whatever  description  they  may  require  in  the  enlargement  of  the  Old  Compensation 
Reservoir " :  extrinsic  evidence  is  competent  to  show  what  particular  scheme  of 
enlargement  was  contemplated  by  the  parties  at  the  date  of  the  contract,  but  not  to 
limit  the  quantity  which  might  be  taken  for  that  purpose.  Chadwick  v.  Burnley, 
12  W.  R.  1077. 


CHAPTEE  XXXVIII. 

ACTIONS  FOR  NUISANCE. 

1.  Plaintiffs  title  and  possession.  7.  Cause  and  effect. 

2.  Easements.  8.  Notice  and  request  to  abate. 
8.  Highway.  9.  Damages. 

4.  Defendant's  title.  10.  Former  abjudication. 

6.  The  nuisance.  11.  Defendant's  right  or  title. 

6.  The  injury.  12.  Reasonable  care,  etc. 

1.  Plaintiff's  title  and  possession.'] — The  mode  of  proving 
title  and  possession  of  land  have  been  stated  in  the  last  chapter.1 
Although  possession  may  be  prima  facie  evidence  of  title,  plaintiff 
cannot  recover  if  his  own  evidence  shows  the  paramount  title  to 
be  in  another.2 

2.  Easements. .] — An  allegation  of  prescriptive  right  is  not  sus- 
tained by  proof  of  a  conventional  right,8  but  is  sustained  by  proof 
of  adverse  user  for  sufficient  length  of  time,4  where  there-  is  no 
evidence  of  a  license  or  agreement.5 

The  grant  of  an  easement  with  real  property,  or  the  reserva- 
tion of  one  in  real  property  conveyed,  is  not  implied  from  its  exist- 
ence at  the  time  of  the  conveyance,  and  the  silence  of  the  parties, 
unless  it  is  necessary  to  the  enjoyment,  so  that  the  grant  or  reser- 
vation may  be  presumed  to  have  been  intended  by  the  parties.6 

To  establish  an  easement  by  presumption  of  a  grant  on  the 
ground  of  necessity,  the  claimant  must  show  that  without  it,  he 
will  be  subjected  to  an  expense  excessive  and  disproportioned  to 
the  value  of  his  estate,  or  that  his  estate  clearly  depends  on  it  for 
appropriate  enjoyment,  or  that  some  conclusive  indication  of  his 
grantor's  intention  exists  in  the  circumstances  of  his  estate.7 

Evidence  of  user  for  a  sufficient  period,8  if  continuous,  ad- 
verse, and  uninterrupted,  raises  a  presumption  of  a  lost  grant 
from  some  one  authorized  to  make  it.9  An  isolated  instance  of 


'Paragraphs  1,  2,  and  8.  See  also  Wilson  v.  Hinsley,  13  Md.  64;  Brown  v. 
Bowen,  80  N.  Y.  519. 

8  Morris  v.  McCarney,  9  Geo.  160. 

3  Rudd  v.  Williams,  43  111.  385.     But  the  word  "  ancient "  is  not  alone  enough  to 
exclude  all  but  prescriptive  right.    Ward  v.  Neal,  35  Ala.  602. 

4  Kent  v.  Waite,  10  Pick.  138. 

6  Steffy  v.  Carpenter,  37  Penn.  St.  41. 

6  See  the  conflicting  authorities  in  4  Am.  L.  Rev.  40;  Keats  v.  Hugo,  115  Mos& 
205,  s.  o.  15  Am.  R.  80;  Shipman  v.  Beers,  2  Abb.  New  Cas.  435. 

1  O'Rorke  v.  Smith,  11  R.  I.  259,  s.  c.  23  Am.  R.  440;  Powell  v.  Sims,  5  W.  Va. 
1,  s.  c.  13  Am.  R.  629. 

8  Varying  in  different  jurisdictions.     In  New  York,  twenty  years. 

9  Tyler  v.  Wilkinson,  4  Ma=s.  397 ;  compare  Connor  v.  Sullivan,  40  Conn.  26,  s.  a 
16  Am.  R.  10;  Vooght  v.  Winch,  2  B.  &  A.  662. 

[640J 


ACTIONS  FOR  NUISANCE.  641 

an  unsuccessful  attempt  at  interruption  is  not  enough  to  prevent 
a  finding  of  such  grant.1  In  the  absence  of  other  evidence,  the 
adverse  character  of  the  enjoyment,3  and  the  fact  that  it  was 
under  a  claim  of  right,3  may  be  inferred  from  evidence  that  it  was 
exclusive  and  uninterrupted.  The  acts  and  declarations  of  an 
occupant  or  tenant  are  not  competent  to  affect  the  title  of  the 
owner ;  but  on  the  question  whether  the  right  has  been  lost  or 
abandoned,  the  demand  of  it  by  plaintiff,  and  the  yielding  of  it 
by  the  occupant,  may  be  shown.4  The  easement  or  use  must  be 
shown  to  have  continued  substantially  the  same ; 5  but  slight 
variation  will  not  defeat  it 6  Evidence  of  a  private  way  does  not 
support  an  allegation  of  a  highway.7 

3.  niyhway.~] — To  prove  a  public  way,  plaintiff  must  estab- 
lish :   a  legal  dedication,  as  provided  by  statute,  if  any ;  or  con- 
demnation by  some  public  authority  competent  for  the  purpose  ; 
or  a  dedication  implied  from  acts  of  the  owner,  not  amounting  to 
a  statutory  dedication,  but  indicating  the  purpose  to  make  a  pub- 
lic way ;  or,  a  continuous  and  adverse  possession  and  user  on  the 
part  of  the  public  for  a  sufficient  period.8    Evidence  of  the  fact 
of  highway  at  a  given  time  raises  a  presumption,  that  it  con- 
tinued and  still  exists.9    Special  damage  must  be  proved ; 10  other- 
wise of  a  private  way.11 

4.  Defendant's  title."] — Evidence  that  defendant  was  in  pos- 
session,12 or  that  he  leased  the  premises  to  others,13  raises  a  pre- 
sumption against  him  that  he  was  owner. 

5.  The  nuisance.~\ — A  substantial  variance  between  the  evi- 
dence and  the  allegation  of  the  facts  constituting  the  nuisance  is 
material,  and  may  be  fatal.14     A  nuisance  is  presumed  created  by 
the  owner  of  the  premises  whence  it  proceeded.15     An  allegation 
that  defendant  constructed  the  nuisance,  admits  evidence  that  he 


1  Connor  v.  Sullivan  (above).    Nor  is  evidence  that  no  such  grant  was  ever  made, 
if  the  owner  were  capable  of  making  such  a  grant.     An^us  v.  Dalton,  27  Weekly 
R.  623  (BRETT,  J.,  dissented).    Nor  that  there  was  a  public  way  nearer  and  more  con- 
venient.    Blake  v.  Everett,  I  Allen,  248. 

2  Hart  v.  Vose,  19  Wend.  365. 

8  Hammond  v.  Zehner,  23  Barb.  473 ;  Polly  v.  McCall,  37  Ala.  20. 
4  Lindeman  v.  Lindsey,  69  Penn.  St.  93,  s.  c.  8  Am.  R.  219. 
*  Ball  v.  Hay,  L.  II.  8~Ch.  App.  467,  8.  c.  6  Moak's  Eng.  435. 
8  Harvey  v."Walters,  L.  R.  8  C.  P.  162,  s.  c.  4  Moak's  Eng.  392. 

7  Salchell  v.  Doram,  4  Ohio  St.  542. 

8  Satehell  v.  Doram,  4  Ohio  St.  542.    For  the  details  of  the  mode  of  proving  these 
facts,  seo  Grinnell  v.  Kirtland,  2  Abb.  New  Cas.  386,  400  n. 

9  Satehell  v.  Doram,  4  Ohio  St.  542. 

10  Lansing  v.  Wiswall,  5  Den.  213 ;  Winterbottom  v.  Lord  Derby,  Law  Rep.  2  Ex. 
316. 

11  Lansing  v.  Wiswall  (above). 

11  Blunt  v.  Aikin,  15  Wend.  522;  and  see  Waggoner  v.  Jermaine,  3  Den.  308. 

13  Conhocton  Stone  Road  Co.  v.  Buffalo,  N.  Y.  <fc  E.  R.  U.  Co.  3  Hun,  5:23. 

14  Hill  v.  Supervisor,  10  Ohio  St.  621 ;    Dickinson  v.  Ciby  of  Worcaster,  7  Allen, 
19  ;  Pickett  v.  Congdon,  18  Md.  412  ;  Brown  v.  Woodworth,  5  Barb.  560. 

16  Francis  v.  Schoellkopf,  53  N.  Y.  152. 
41 


642  ACTIONS  FOR  NUISANCE. 

merely  continued  it.1  The  determination  of  a  board  of  health 
that  a  nuisance  exists,  made  without  notice,  to  or  hearing  of  the 
person  on  whose  premises  it  is  alleged,  is  not  competent  evi- 
dence.2 -Evidence  of  negligence  is  not  usually  necessary.3  Evi- 
dence of  malice  is  not  necessary,  even  if  alleged.4  Malice  may  be 
inferred  from  acts ;  and  the  law  presumes  it  from  acts  designed 
to  injure  the  plaintiff.5 

6.  The  injury  ^\ — The  evidence  as  to  the  nature  of  the  injury 
should  substantially  correspond  with  the  allegation.6    But  if  the 
cause  is  truly  alleged,  details  of  the  mode  may  be  proved,  though 
not  alleged.1*    Evidence  of  like  injury  to  other  persons  not  con- 
nected with  plaintiff  is  not  competent,8  unless  for  the  purpose  of 
showing  the  relation  of  cause  and  effect,  under  the  same  condi- 
tions ;  but  for  this  purpose  general  similarity  of  the  conditions 
is  not  enough.9 

7.  Cause  and  effect.] — If  the  subject  is  one  not  familiar  to 
men  in  general,  and  the  jurors  cannot  be  presumed  familiar  with 
it,10  the  fact  that  the  injury  complained  of  resulted  from  thev con- 
duct of  defendant,  or  the  condition  of  his  property,  may  be 
shown  by  the  opinions  of  witnesses  shown  to  be  sufficiently  skilled 
in  the  subject  in  question,11  not  by  those  of  others.12    The  mode  of 
calling  for  the  opinion  of  skilled  witnesses  has  been  already  stated.13 

1  Conhocton  Stone  Road  Co.  v.  Buffalo,  N.  Y.  &  E.  R.  R.  Co.  3  Hun,  523 ;  com- 
pare Lansing  v.  Smith,  4  Wend.  24. 

*  Button  v.  City  of  Camden,  10  Vroom,  122  (39  N.  J.),  s.  c.  23  Am.  R.  203. 

*  Cahill  v.  Eastman,  18  Minn.  824,  s.  o.  10  Am.  R.  184. 

4  Panton  v.  Holland,  17  Johns.  92  ;  Timm  v.  Bear,  29  Wis.  254. 

6  McCord  v.  High,  24  Iowa,  336,  347.     See,  further,  page  629  of  this  volume. 

«  Ellicott  v.  Latnbourne,  2  Md.  131 ;  People  v.  Townsend,  3  Hill,  479;  Wilson  v. 
Hinsley,  13  Md.  64. 

1  Thus,  undtT  an  allegation  that  the  defendant  had  diverted  the  water,  and  pre- 
vented it  from  flowing  to  the  plaintiff's  mill,  evidence  that  the  trough  by  which  the 
defendant  conveyed  the  water  from  the  flume  to  his  mill  was  leaky,  and  wasted  the 
water;  and  that  his  water-wheel  was  out  of  repair,  and  required  more  water  than  it 
would  if  in  order,  is  admissible.  Wier  v.  Covell,  29  Conn.  197. 

So,  under  an  allegation  that  plaintiff's  house,  had  been  rendered  unhealthy  and 
incommodious  by  defendant's  horses  constantly  standing  by  his  door,  evidence  of  the 
bad  smells  from  the  staling  of  the  horses  is  admissible.  Benjamin  v.  Storr,  L.  R.  9 
Com.  PI.  400,  8.  c.  10  Moak's  Ecg.  R.  231. 

As  to  mode  of  proving  injury  by  noise,  see  Gaunt  v.  Fynney,  L.  R.  8  Ch.  App.  8, 
B.  o.  4  Moak's  Eng.  718;  Wesson  v.  Washburn  Iron  Co.  13  Allen,  95: — by  obstruction 
of  light,  see  City  of  London  Brewery  Co.  v.  Tennant,  L.  R.  9  Ch.  App.  212,  8.  c.  8 
Moak's  Eng.  827 ;  Aynsley  v.  Glover,  L.  R.  18  Eq.  Cas.  544,  8.  c.  11  Moak's  Eng.  521. 

Whether  the  annoyance  may  be  proved  by  evidence  of  declarations  made  by  per- 
sons when  suffering  therefrom,  compare  Kearney  v.  Farrell,  28  Conn.  317;  Wesson 
V.  Washburn  Iron  Co.  13  Allen,  95. 

8  Emerson  v.  Lowell  Gas-Light  Co.  6  Allen,  146;  Tyler  v.  Mather,  9  Gray,  177; 
Pettingill  v.  Porter,  3  Allen,  349,  8.  p.  Concord  R.  R.  Co.  v.  Greely,  3  Fost.  237. 

9  Hawks  v.  Inhabitants  of  Charlemont,  110  Mass.  110. 

10  Clinton  v.  Howard,  42  Conn.  294 ;   Concord  R.  R.  Co.  v.  Greely,  23  N.  H.  237; 
page  310  of  this  volume. 

11  Clark  v.  Willett,  35  Cal.  534. 

18  Emerson  v.  Lowell  Gas-Li^ht  Co.  6  Allen,  146.  See,  also,  on  this  subject,  pages 
586,  591  of  this  volume.  Benkard  v.  Babcock,  2  Robt.  175,  s.  c.  17  Abb.  Pr.  421; 
27  How.  Pr.  391. 

1JP:igell7  of  thia  volume;  Luning  v.  State,  1  ChandL  (Wis.)  178;  Hunt  7 
Lowell  Gas-Light  Co.  8  Allen,  169,  172. 


ACTIONS  FOR  NUISANCE.  643 

8.  Notice  and  request  to  abate.'] — As  against  the  mere  con- 
tinner  of  a  private  nuisance  created  by  a  previous  owner  before 
conveyance  to  defendant,  it  must  be  shown  that  before  the  com- 
mencement of  the  action  he  had  notice  or  knowledge  of  the 
existence  of  the  nuisance  ;  but  a  request  to  abate  it  need  not  be 
proved.1    If  no  question  arises  on  the  terms  of  the  notice,  oral 
evidence  is  competent  to  prove  notice  given  in  writing,  without 
producing  or  accounting  for  the  writing.* 

9.  Damages.] — If  unlawful  injury  to  plaintiff's  private  prop- 
erty be  shown,  special  damage  need  not  be  shown.3    Otherwise,  if 
it  be  to  his  enjoyment  of  a  public  or  common  right.      In  either 
case,  evidence  of  special  damage  not  alleged  may  be  excluded.4 
Evidence  of  rental  value  is  competent  under  allegations  that  the 
injury  interfered  with  the  letting.5 

The  rules  as  to  the  mode  of  proving  damages  have  been 
already  stated.6 

The  fact  that  part  of  the  injury  results  from  the  acts  of  one 
not  a  defendant,  is  available  to  defendant  on  the  question  of  dam- 
ages,7 but  not  otherwise.8 

10.  Former  adjudication.] — A  criminal  conviction  of  nuisance, 
founded  on  the  same  facts,9  or  a  judgment  in  an  action  of  tres- 
pass for  attempt  to  abate  the  same  nuisance,10  is  competent  against 
the  same  party  if  both  actions  involve  the  same  issues. 

11.  Defendant's  right  or  title.] — If  the  defendant  relies  upon 
a  prescriptive  right,  he  must  prove  affirmatively  its  enjoyment 
for  a  sufficient  length  of  time.11    In  justifying  under  statute 


1  Conhocton  Stone  Road  v.  B.,  N.  Y.  &  E.  R.  R.  Co.  5  N.  Y.  573,  reVg  52  Barb. 
890. 

2  Polly  T.  McCall,  37  Ala.  20,  s.  c.  1  Ala.  Sel.  Cas.  246. 

8  Plumleigh  v.  Dawson,  6  111.  544 ;  Blanchard  v.  Baker,  8  Me.  253  ;  Chatfield  v. 
Wilson,  27  Vt.  670. 

4  So  held  of  private  right.  McTavish  v.  Carroll,  13  Md.  429  ;  Solms  v.  Lias,  16 
Abb.  Pr.  311;  Hallock  v.  Belcher,  42  Barb.  199.  So  held  of  public  right.  See 
Wetmore  v.  Story,  22  Barb.  414,  s.  c.  3  Abb.  Pr.  262. 

6  Jutte  v.  Hughes,  67  N.  Y.  267,  rev'g  40  Super.  Ct.  (J,  <fc  S.)  126  ;   and  see 
Cropsey  v.  Murphy,  1  Hilt.  126. 

*  Page  30,  of  this  volume.     As  to  opinions  of  witnesses,  see  also  Fish  v.  Dodge,  4 
Den.  311,  318;  Sinclair  v.  Rorish,  14  Ind.  450;  contra,  Rochester  «fe  Syracuse  R.  R. 
Co.  v.  Budlong,  10  How.  Pr.  289,  s.  o.  12  N.  Y.  Leg.  Obs.  46;  Vaudine  v.  Burpee,  13 
Mete.  288 ;  Sedgw.  on  D.  591. 

7  Wallace  v.  Drew,  59  Barb.  413. 

8  Wheeler  v.  City  of  Worcester,  10  Allen,  591. 

*  Peck  v.  Elder,  3  Sandf.  126;  compare  Queen  v.  Fairie,  8  E.  «fc  B.  485,  s.  c.  8 
Cox  Cr.  C.  66. 

10  Bowyer  v.  Schofield,  1  Abb.  Ct.  App.  Dec.  177.     For  the  rules  applicable  to  a 
former  recovery  between  the  same  parties,  for  nuisance,  see  Richardson  v.  City  of 
Boston,  19  How.  U.  S.  263;   The  Same  v.  The  Same,  24  Id.  188;   Fowle  v.  New 
Haven  A  N.  Co.   107  Mass.  852 ;  Vooght  v.  Winch,  2  B.  <fc  A.  662 ;    Feversham 
v.  Emerson,  11  Ex.  391  ;  Plate  v.  N.  Y.  Central  R.  R.  Co.  37  N.  Y.  472;  Avon 
Manuf.  Co.  v.  Andrews,  30  Conn.  476 ;  Connery  v.  Brooke,  73  Penn.  St.  80;  Potter 
V.  Burden,  38  Ala.  651. 

11  Neale  v.  Seeley,  47  Barb.  314. 


644  ACTIONS  FOB  NUISANCE. 

authority,  the  burden  is  on  defendant  to  show  that  the  statute 
power  or  duty  could  not  reasonably  well  be  executed  without 
causing  the  annoyance  complained  of.1 

12.  Reasonable  care,  etc.'] — A  nuisance  being  shown,  it  is  not 
competent  for  defendant,  unless  exemplary  damages  are  claimed, 
to  show  that  the  work  or  structure  constituting  it  was  made  in 
the  best  and  most  careful  manner,2  nor  that  all  usual  precautions 
were  taken,3  nor  that  others  were  not  injured.4  "Where  reason- 
able use  is  the  measure  of  the  right  of  a  party,  evidence  of  the 
general  usage  of  the  country  in  similar  cases  is  competent.5 


1  Hull  T.  Managers  of  Metrop.  Asylnm  Dist.  40  Law  Times  R.  N.  S.  497. 

*  1  Sedgw.  on  Dam.  7  ed.  284. 

*  Temperance  Hall  Ass.  v.  Giles,  4  Vroom,  200.     See,  to  the  contrary,  Smith  r. 
Fletcher,  L.  R.  9  Ex.  64,  s.  o.  8  Moak's  Eng.  610,  re^g  3  Moats  Eng.  422. 

*  Temperance  Hall  Ass.  v.  Giles  (above;. 

1  Duroont  v.  Kellogg,  29  Mich.  420,  s.  o.  18  Am.  R.  102 ;  compare  Timm  r. 
Bear,  29  Wie.  254. 


CHAPTER    XXXIX. 

ACTIONS  FOB   INJURIES  BY  ANIMALS. 
1.  Wild  beasts.  2.  Dangerous  character.  3.  Notice  to  keeper. 

1.  Wild  beasts."] — Injury  to  a  person  or  personal  property  by  a 
wild  beast  of  a  nature  fierce  and  dangerous,1  or  any  injury  by  any 
animal  trespassing,2  is  sufficient  evidence  of  negligence. 

2.  Dangerous  character.'] — In  case  of  an  animal  not  trespass- 
ing, dangerous  character,  and  notice  of  it  to  defendant,  must  be 
shown.3    A    single  act,  though  not  resulting  in  injury,4  and 
though  not  known  to  defendant,6  may  go  to  the  jury  as  evidence 
of  vicious  character.     If  vicious  character  and  notice  are  proved, 
negligence  need  not  be.6    If  negligence  is,  a  vicious  act  need  not.7 

3.  Notice.'] — An  owner  is  presumed  to  know  the  generic  na- 
ture of  the  animal ;  but  to  charge  him  for  injury  resulting  from 
peculiar  characteristics  of  a  particular  domestic  animal,  some 
notice  of  them  must  be  shown.8    It  is  sufficient  if  he  has  seen  or 
heard  enough  to  convince  a  man  of  ordinary  prudence  of  its  dis- 
position to  commit  injuries  substantially  like  those  complained 
of.9    Proof  of  savage  and  ferocious  nature  proves  notice.1"    Evi- 
dence that  he  had  chained  it  and  warned  persons  of  it,11  or  pro- 
cured or  kept  it  to  guard  his  premises,12  is  competent  to  show 
notice.     General  bad  reputation  is  not  evidence  of  bad  character, 
but  may  be  admitted  with  other  circumstances  tending  to  show 
notice.1*    Notice  need  not  be  personal.    Notice  to  one  to  whom 
he  had  delegated  the  management  of  his  business,  or  the  cace  and 
control  of  the  animal,  and  who  was  for  this  purpose  put  in  de- 
fendant's place,  is  sufficient.14    Evidence  of  notice,  even  if  not 
necessary,  is  competent  in  aggravation.     So  is  reckless  conduct.15 

I  Scribner  v.  Kelly,  38  Barb.  14 ;  Spaulding  v.  Oakes,  42  Yt.  343. 

*  Shearm.  <fe  R.  §  186.    This  rule  is  subject  to  much  modification  by  statute. 

8  Van  Leuveu  v.  Lyke,  1  N.  Y.  615,  affi'g  4  Den.  127.  Previous  injury  to  others 
need  not.  Reider  v.  White,  65  N.  Y.  54 ;  Worth  v.  Gilling,  L.  R.  2  C.  P.  1.  The 
statutes  sometimes  dispense  with  notice.  61  N.  H.  110;  63  Penn.  St.  346;  49  Barb.  41. 

4  Cockerham  v.  Nixon,  11  Ired.  L.  270. 

8  See  Whittier  v.  Franklin,  46  N.  H.  26.  • 

9  Kelly  v.  Tilton,  2  Abb.  Ct.  App.  Dec.  495.    And  defendant's  care  is  no  bar.    Id. 
Bat  see  38  Wis.  800,  s.  o.  20  Am.  R.  6.     Nor  is  contributory  negligence,  unless  amount- 
ing to  voluntary  bringing  the  injury  upon  himself.     Lynch  v.  McNally,  73  N.  Y.  347. 

7  Dickson  v.  McCoy,  89  N.  Y.  400. 

8  Whart.  Neg.  §  922;  Shearm.  &  R.  §  188,  and  cases  cited. 

»  Shearm.  &  R.  §§  189,  190,  191.     Applebee  v.  Percy,  L.  R.  9  Com.  PL  647. 

10  Muller  v.  McKesson,  73  N.  Y.  195,  199. 

II  Reider  v.  White,  65  N.  Y.  64;  Kittredge  v.  Elliott,  16  N.  H.  80. 

19  Worth  v.  Gilling,  L.  R.  2  C.  P.  1 ;  see  Blackman  v.  Simmons,  3  Carr.  4  P.  138. 

13  Keenan  v.  Ilayden,  89  Wis.  658. 

14  Applebee  v.  Percy  (above) ;  Baldwin  v.  Casella,  L.  R.  7  Ex.  325,  B.  c.  3  Moak,  434, 
»  Swift  v.  Applebone,  23  Mich.  252. 

[645] 


A^Uur, 


I 


CHAPTEB   XL. 

ACTIONS  FOR  ASSAULT   AND  BATTERY. 

1.  Assault,  by  whom  committed.  9.  Requisite  cogency  of  evidence. 

2.  By  servant,  Ac.  10.  The  injury,  and  damages. 
8.  Manner  and  circumstances.  11.  Defense: — Justification. 
4.  Plaintiff  the  aggressor.  12.  Plaintiff  the  aggressor. 
6.  Intent  or  motive.  13.  Provocation. 

6.  The  res  gestce  of  an  assault.  14.  Character. 

7.  Criminal  conviction.  15.  Previous  punishment. 

8.  Admissions  and  declarations. 

1.  Assault,  Ity  whom  committed.'] — A  -witness  may  state  his 
belief  as  to  the  identity  of  a  person  lie  saw,  although  unable  to 
speak  positively,1  if  -his  belief  be  in  the  nature  of  an  impression 
of  the  fact,  not  an  inference  or  opinion.2    Evidence  of  declara- 
tions made  by  the  plaintiff  is  competent  for  the  purpose  of  show- 
ing who  did  the  act,  if  made  as  part  of  the  res  gestce,  within  the 
rule  below  stated ; 3  otherwise  not,4  even  though  there '  was  no 
witness  of  the  act,5  or  though  the  declarations  were  dying  dec- 
larations.6 

2.  By  servant,  <&c.~\ — To  charge  defendants  for  their  servant's 
assault,  it  is  enough  to  show  that  they  gave  the  servant  authority, 
or  made  it  his  duty,  to  act  in  respect  to  the  business  he  was  en- 
gaged in  when  the  wrong  was  committed,  and  that  the  act  com- 
plained of  was  done  in  the  course  of  his  employment ; 7  and  if 
this  be  shown,  it  is  not  material  that  the  servant's  act  was  will- 
ful.8   Without  such  evidence,  it  is  not  enough  to  show  approval 
by  their  general  agent.9    If  it  be  shown  that  it  was  necessary  for 
the  defendants  to  have  a  person  at  a  certain  place  to  act  in  case 
of  emergency, — for  instance,  the  station-master  of  a  railroad  com- 
pany,— the  fact  that  he  was  there,  acting  in  a  matter  which  the 
company  may  perform, — f or  instance,  in  ordering  the  arrest  of 

t  . 

1  Beverly  v.  Williams,  4  Dev.  <fe  B.  (N.  C.)  L.  236. 
*  2  Abb.  New  Cas.  232,  note. 
8  King  v.  Foster,  6  Carr.  <fe  P.  325 ;  paragraph  6. 

4  Morrissey  v.  Ingraham,  111  Mass.  63 ;   People  v.  Graham,  21  Cal.  261;  Denton 
v.  State,  1  Swan  (Tenn.),  279. 

6  State  v.  Davidson,  30  Vt.  377,  383. 

6  Spatz  v.  Lyons,  65  Barb.  476. 

7  Rounds  v.  Del.  Lack.  &  W.  R.  R.  Co.  64  N.  T.  129,  136. 

8  Mott  v.  Consumers'  Ice  Co.  73  N.  Y.  543 ;  Rounds  y.  Del.  Lack.  &  W.  R.  It.  Co. 
(above).     As  to  the  allegation  of  malice, — see  Shea  v.  Sixth  Ave.  R.  R.  Co.  62  N.  Y. 
180,  affi'g  5  Daly,  221. 

»  Vanderbilt  v.  Richmond  Turnpike  Co.  2  N.  Y.  479 ;    2  GreenL  Ev.  13th  ed.  56^ 
§68. 

[6461 


ACTIOKS  FOR  ASSAULT   AND  BATTERY.  C47 

one  charged  with  penal  offense  against  the  company, — as  if  he 
had  authority,  is  prima  facie  evidence  that  he  had  authority, 
and  the  presumption  must  be  overthrown  by  the  company.1  But 
if  the  act  was  one  which  the  company  had  no  power  to  perform, 
such  as  a  charge  of  what  was  no  offense, — the  presumption  does 
not  apply.2 

In  the  absence  of  direct  evidence  of  authority  to  interfere, 
slight  evidence  that  the  authority  was  exclusively  in  other  serv- 
ants is  sufficient  to  repel  the  inference  of  authority  in  the  one 
who  did  the  act.3 

3.  Manner  and  circumstances.'] — If  defendant  admits  the  in- 
jury to  have  been  inflicted  by  him,  it  is  presumed  to  have  been 
done  wrongfully,  and  the  burden  is  on  him  to  show  his  justifica- 
tion or  excuse.4 

If  the  wrong  was  the  use  of  excessive  force  in  an  act  other- 
wise lawful,  the  burden  of  proof  is  upon  plaintiff  to  show  that 
the  force  was  excessive.5 

Witnesses  may  describe  the  manner,  and  testify  to  the  tone  of 
voice,  language,  &c. ; 8  but  the  f eeling  or  expectation  aroused  in 
the  witness  is  not  generally  competent  on  direct  examination,  un- 
less as  explanatory  of  his  own  conduct  testified  to  by  him.7  Evi- 
dence of  declarations  of  the  injured  person  as  to  the  manner  in 
which,  or  the  means  with  which,  the  injury  was  done,  is  not  com- 
petent, unless  the  declarations  were  made  as  part  of  the  res  gestm* 
It  makes  no  difference  that  they  were  made  to  a  medical  attend- 
ant,9 or  as  dying  declarations.10  The  opinion  of  an  expert  as  to 
the  manner  or  mode  of  the  assault,  or  the  resulting  wounds,  is 
competent,11  but  only  so  far  as  the  question  requires  professional 
knowledge  or  special  skill.12 

4.  Plaintiff  the  aggressor.] — If  defendant  has  pleaded  that 
plaintiff  was  the  aggressor,  without  setting  up  a  counter-claim, 
and  without  requiring  a  reply,  plaintiff  may  prove  a  justification 
though  not  alleged.13    To  show  who  was  the  aggressor,  previous 
difficulties  and  ill  will  may  be  proved,  in  connection  with  threats.14 

1  Moore  v.  Metropolitan  Ry.  Co.  L.  R.  8  Q.  B.  36,  s.  c.  4  Moak's  Eng.  203.  Com- 
pare  Priest  v.  Hudson  River  R.  R.  Co.  65  N.  Y.  689. 

3  Poulton  v.  London,  <fec.  Ry.  Co.  L.  R.  2  Q.  B.  534,  and  cases  cited.  Compare 
p.  44  of  this  vol. 

3  Towanda  Coal  Co.  v.  Heeman,  86  Penn.  St.  418. 

4  Harvey  v.  Dunlop,  Hill  &  D.  Supp.  193. 
6  Henry  v.  Lowell,  16  Barb.  268. 

8  Kerner  v.  State,  18  Geo.  194,  218;  but,  according  to  Messner  v.  People  (45  N. 
Y.  1),  cannot  express  on  opinion  of  the  passions  expressed  in  outcries.  See  p.  699 
of  this  vol. 

1  Keener  v.  State,  18  Geo.  194,  218. 

8  Collins  v.  Waters,  54  111.  485. 

*  Collins  v.  Waters  (above). 

10  Denton  v.  State,  1  Swan  (Tenn.),  279. 

11  Fort  v.  Brown,  46  Barb.  866;  and  see  pages  694  and  699  of  this  vol. 

11  Cook  v.  State,  24  N.  J.  L.  ( t  Znhr.)  843,  852  ;  Cooper  v.  State,  23  Tex.  331. 
13  N.  Y.  Code  Civ.  Pro  §§  615,  622,  c  >mpaml  with  Brown  v.  Bennett,  5  Cow.  181 ; 
Collier  v.  Moulton,  7  Johns.  109  ;  \Vilmarth  v.  Babcock,  2  Hill,  194. 

'* Murphy  v.  Dart,  42  How.  Pr.   31 ;    Jewctt  v.  Banning,  21  N.  Y.  27,  affig  23 


648  ACTIONS  FOR  ASSAULT  AND  BATTERY. 

5.  Intent  or  motive.] — As  a  general  rule,  plaintiff  must  be 
prepared  with  evidence  either  that  the  intention  was  unlawful,  or 
that  defendant  was  in  fault.1    But  the  unlawfulness  may  have 
been  unknown  to  defendant.8    Declarations  by  the  one  who  com- 
mitted the  assault,  if  forming  part  of  the  res  gesto&,  are  competent 
for  this  purpose.8    So  are  his  previous  threats,4  but  subsequent 
threats  are  not  competent.5 

6.  The  res  gestce  of  an  assault."] — In  the  case  of  bodily  injury 
the  res  gestce  include  the  statements  of  the  cause  of  injury  made 
immediately  upon  and  in  view  of  its  occurrence,  and  the  suffer- 
er's expressions  of  feeling  made  while  the  consequences  were 
subsisting  and  in  progress.    Jt  is  not  essential  that  the  main  fact 
to  which  they  relate  should  be  instantly  contemporaneous  with 
the  declarations.     It  is  enough  that  the  two  were  so  intimate- 
ly connected  in  point  of  time  and  by  the  circumstances  of  mental 
excitement  or  bodily  suffering,  that  it  cannot  be  presumed  that 
the  speaker  had  time  to  contrive  or  devise  anything  for  his  own 
advantage.6 

On  the  other  hand,  if  there  has  been  lapse  of  time,7  or  change 
of  place  and  of  interlocutors,8  and  particularly  if  some  other  inci- 
dent has  intervened,9  subsequent  declarations,  though  connected 
in  subject  and  apparently  following  as  the  effect  upon  its  cause, 
are  not  competent,  except  as  against  the  declarant. 

Acts  and  declarations  of  bystanders  called  forth  by  the  prin- 
cipal fact  in  evidence,  are  competent,  upon  the  same  principle  and 
within  the  same  limits.10 


Barb.  13.  As  to  the  competency  of  evidence  of  previous  exhibitions  of  strength  by 
the  wrong-doer,  see  Darling  v.  Westmoreland,  52  N.  H.  401,  s.  c.  13  Am.  R.  65,  and 
cases  cited. 

1  BREESE,  J.,  Paxton  v.  Boyer,  67  HI.  132,  s.  c.  16  Am.  R.  615. 

8  See,  for  instance,  Elder  v.  Morrison,  10  Wend.  128. 

8  United  States  v.  Omeara,  1  Cranch  C.  Ct.  165. 

4  See  pp.  630,  535  of  this  vol. 

6  Newman  v.  Goddard,  3  Hun,  70;  Handy  v.  Johnson,  6  Md.  450,  463. 

6  As,  for  instance,  what  a  wife  said,  immediately  after  a  battery  and  wounding  of 
her.     Thompson  v.  Trevanion,  Skinner,  402.      Or  that  a  man  found  injured  and 
groaning  in  the  street,  said  he  had  just  been  run  over  by  a  cab  which  the  witness 
saw  driving  rapidly  away.     King  v.  Foster,  6  Carr.  &  P.  325.     Or  that  a  man  return- 
ing to  his  bed-room  at  night,  said  he  had  fallen  down  ptairs  when  alone.     Ins.  Co.  v. 
Mosley,  8  Wall.  405.     Or  that  a  wife  who  ran  from  her  room  in  the  night  wounded 
and  bleeding,  said,  on  taking  refuge  in  nnother  room,  that  her  husband  had  stabbed 
her.     Comm.  V.  Jl'Pike,  3  Gush.  181  ;  hherley  v.  Billings,  8  Bush,  147,  s.  c.  8  Am.  R. 
451  ;  Castner  v.  Siiker,  83  N.  J.  L.  95.     Otherwise  of  conversation  after  the  combat 
was  over.     Halloway  v.  Halloway,  1  Monr.  132.     For  other  illustrations,  see  Stone 
v.  Segur,  11  Allen,  568;    Norwich  Transportation  Co.  v.  Flint,  13  Wall.  3,  affi'g  7 
Blatchf.  536. 

7  As  where  a  night  has  intervened  ;  Spatz  v.  Lyons,  65  Barb.  476;  or  some  hours 
of  the  day-time.     Rosenbaum  v.  The  State,  33  Ala.  354,  361. 

8  Aa  where  after  an  assault,  and  after  obtaining  a  warrant,  plaintiff  met  witness 
to  whom  the  declarations  were  made  at  a  different  spot  from  that  of  assault,    Cberry 
T.  McCall,  23  Geo.  193.     Or  where  afi.er  the  assault  the  witness  followed  defendant 
from  the  room,  and  reproached  him  out  of  doors,  where  the  declarations  were  made. 
Handy  v.  Johnson,  5  Md.  450,  463. 


9  See  pages  538,  589  of  this  vol. 
10  Norwich  Transportation  Co.  v.  Flint,  13  WalL**  affi'g  V  Blatchf.  536. 


5 

** 


ACTIONS  FOR  ASSAULT  AND  BATTERY.  649 

But  in  admitting  declarations  nnder  the  rule  of  the  res  gresta, 
narratives  of  past  facts  are  excluded.1 

7.  Criminal  conviction.'] — The  conviction  of  defendant  on  a 
criminal  prosecution  for  the  same  assault,  if  founded  on  a  plea  of 
guilty,  is  competent  to  show  guilt.2    So  is  such  a  plea,  with  only 
the  indictment  to  which  it  was  pleaded.3    But  a  conviction  not 
founded  on  such  a  plea  is  not  competent.4 

8.  Admissions  and  declarations.'] — Defendant's  silence,  when 
charged  with  the  wrong,  is  competent  against  him.5    The  fact 
that  declarations  were  dying  declarations  is  not  ground  of  admit- 
ting them  in  a  civil  action.0 

The  rule  as  to  admitting  the  declarations  and  admissions  of  one 
wrong-doer,  as  evidence  against  another,  has  already  been  stated.7 

When  evidence  has  been  given  that  a  party  to  the  action  once 
attributed  the  injury  to  another  cause  than  that  to  which  he  has 
testified,  it  is  competent  to  show,  in  corroboration  of  his  testi- 
mony, that  no  such  other  cause  ever  existed.8 

9.  Requisite  cogency  of  evidenced] — The  weight  of  American 
authority  is  that  plaintiff  is  not  required  to  prove  the  charge 
beyond  a  reasonable  doubt.9    A  seaman  suing  his  officer  must 
make  out  a  clear  case,  by  credible  and  consistent  proof.10 

10.  The  injury  and  damages.'] — The  opinions  of  witnesses  as 
to  the  extent  of  the  injury  are  competent,  within  limits  already 
stated.11     So,  also,  of  the  declarations  of  the  plaintiff  as  to  suffer- 
ing.13 

If  exemplary  damages  are  claimed,  all  the  circumstances  im- 
mediately connected  with  the  transaction,  tending  to  exhibit  or 
explain  the  motive  of  the  defendant,  are  admissible  in  evidence.13 

Special  damages  should  be  alleged  in  order  to  be  proved,  and 


1  This  is  the  New  York  rule.  More  latitude  is  given  in  some  other  jurisdictions, 
upon  the  principle  that  what  characterizes  the  act  with  motive  and  purpose,  should 
not  be  excluded  merely  because  it  states  that  which  is  past. 

8  2  Whart.  Ev.  §  783 ;  Green  v.  Bedell,  48  N.  H.  546. 

8  Corwin  v.  Walton,  18  Mo.  71 ;  Birchard  v.  Booth,  4  Wig.  67. 

4  Rose.  N.  P.  221.  It  may  sometimes  be  admissible  as  evidence  of  reputation. 
Id.  221,  citing  Petrie  v.  Nuttall,  11  Exch.  669.  For  the  mode  of  proving  the  con- 
viction, see  Chapters  XXIX  and  XL1. 

6  Jewett  v.  Banning,  21  N.  Y.  27,  affi'g  23  Barb.  13;    Kelly  v.  People,  55  N.  Y. 
665.     Even  though  it  appear  that  on  a  previous  occasion  he  denied  it.     Jewett  v. 
Banning  (above). 

'  Spatz  v.  Lyons,  65  Barb.  476. 

7  Page  190  of  this  vol. 

'8  Melhuish  v.  Collier,  15  Q.  B.  878;  8.  p.  Wrege  v.  Westcott,  30  N.  J.  L.  212. 

9  Pago  495  of  this  voL  ;    Elliott  v.  Van  Buren,  33  Mich.  49,  s.  c.  20  ADO.  R.  668. 
Whether,  as  held  in  this  case,  a  preponderance  of  evidence  is  sufficient,  see  note  on 
p.  495  of  this  vol. 

10  Benton  v.  Whitney,  Crabbe,  417. 

11  Page  60i>  of  this  vol. ;  Anthony  y.  Smith,  4  Bosw.  C03. 

"  Page  599  of  this  vol.;  Elliott  v.  Van  Buren,  33  Mich.  49;  Towle  T.  Blake,  48 
N.  II.  92;  Earl  v.  Tupper,  45  Vt.  275  ;  Aveson  v.  Kinnaird,  6  East,  191,  approved 
in  8  Wall.  406.  As  to  mental  suffering,  compare  Ford  v.  Jones.  62  Barb.  484. 

"  Voltz  v.  Blackmar,  64  N.  Y.  440;  Sampson  v.  Henry,  11  Pick.  879. 


650  ACTIONS  FOR  ASSAULT  AND  BATTERY. 

are  not  admitted  by  failure  to  deny.1  Circumstances  of  aggra- 
vation known  to  defendant,  and  indicating  malice, — such  as  plaint- 
iff's illness  at  the  time, — are  competent  for  the  purpose  of  ag- 
gravating the  damages,  though  not  alleged  as  special  damages.8 

11.  Defense: — Justification.] — Justification  must  be  specially 
pleaded.8     In  justifying  under  a  reasonable  regulation  of  a  corpo- 
ration who  employed  defendant,  it  is  not  necessary  for  the  defend- 
ant to  give  positive  proof  that  the  regulation  was  made  by  the 
directors,  or  the  general  superintendent.     Proof  of  the  existence 
of  the  regulation  is  enough  in  the  first  instance.4     The  mode  of 
proving  possession  of  property,5  and  of   justifying  under  legal 
process,6  has  already  been  stated.     Plaintiffs  threats,  while  resist- 
ing the  execution  of  process,  are  competent  against  him.7 

12.  Plaintiff  the  aggressor.'] — The  fact  that  plaintiff  was  the 
aggressor  must  be  proved  by  the  defendant  if  relied  on  by  him.8 
The  fact  that  the  assault  was  committed  in  defending  himself  or 
his  property,  or  that  of  others  intrusted  to  him,  against  plaintiff  as 
a  trespasser  seeking  forcible  possession,  is  relevant,  both  -on  the 
question  of  intent  to  do  bodily  harm,  and  on  the  question  of  the 
degree  of  force  justifiable.9 

13.  Provocation.'] — Defendant  may  show,  in  mitigation  or  bar 
of  exemplary  damages,  but  not  in  bar  of  the  action,10  that  the 
plaintiff  provoked  the  assault ; u  but  not  unless  the  provocation 
was  so  recent,  or  continued  to  so  recent  a  time,12  or  had  so  re- 
cently come  to  defendant's  knowledge,18  as  to  induce  the  pre- 
sumption that  the  violence  was  committed  under  the  immediate 
influence  of  the  passion  thus  wrongfully  excited.14     The  fact  that 
plaintiff  and  defendant  fought  by  agreement,  or  mutual  consent, 
is  not  a  bar  to  the  action,  but  may  be  proved  in  mitigation.15    For 
the  same  purpose  defendant  may  show  that  he  acted  under  an 
honest  belief  that  he  was  justified  in  doing  the  act  complained  of, 
or  under  the  impulse  of  sudden  passion  or  alarm  excited  by  the 
conduct  of  the  plaintiff.18 


1  Molony  v.  Dows,  15  How.  Pr.  261,  and  cases  cited. 

*  Sampson  v.  Henry,  11  Pick.  379. 

8  Coats  v.  Darby,  2  N.  Y.  617;  Poland  v.  Johnson,  16  Abb.  Pr.  235. 

4  Vedder  v.  Fellows,  20  N.  Y.  126. 

6  Pages  623  and  635  of  this  vol. 

6  Page  631. 

7  Fulton  v.  Staats,  41  N.  Y.  498. 

8  Stevens  v.  Lloyd,  1  Cranch  C.  Ct.  124. 

9  Filkins  v.  People,  <fec.  of  N.  Y.  69  N.  Y.  101,  reVg  1  Buff.  Super.  Ct.  (Sheldon), 
605. 

10  CusHfaan  v.  Waddell,  Baldw.  58 ;  Prentiss  v.  Shaw,  56  Me.  427. 

11  Voltz  v.  Blackmar,  64  N.  Y.  440. 

"  Stetlar  v.  Nellis,  60  Barb.  524 ;  42  How.  Pr.  163. 

18  Willis  v.  Forrest,  2  Duer,  310.    Compare  Vedder  v.  Fellows,  20  N.  Y.  126. 

14  Corning  v.  Corning,  6  N.  Y.  97. 

15  Adams  v.  Waggoner,  33  Ind.  531,  s.  c.  5  Am.  R.  230. 
11  Voltz  v.  Blackmar,  64  N.  Y.  440. 


ACTIONS  FOR  ASSAULT  AND  BATTERY.  651 

14.  Character.'] — Evidence  as  to  the  plaintiff's  character  is  not 
admissible  either  in  aggravation  1  or  in  mitigation 2  of  damages, 
unless  in  cases  of  indecent  assault  or  attempt  to  ravish.3 

15.  Previous  punishment.] — The  criminal  conviction  and  pun- 
ishment of  defendant  cannot  be  proved  to  mitigate  damages.4 


1  Givens  v.  Bradley,  3  Bibb,  192,  195. 

*  Corning  v.  Corning,  6  N.  Y.  97.  So  of  his  intemperance,  unless  that  be  shown 
to  have  contributed  to  hia  injury.  1  Whart.  Ev.  62,  §  47,  citing  Drohn  v.  Brewer, 
77  III.  280. 

8  Grossman  v.  Bradley,  53  Barb.  125  :  Ford  v.  Jones,  62  Barb.  484. 

4  Cook  v.  Ellis,  6  Hill,  466 ;  Hoadley  v.  Watson,  45  Vt.  289,  s.  c.  12  Am.  R.  197. 
Contra,  Smithwick  v.  Ward,  7  Jonea  (N.  C.)  L.  64. 


CHAPTEE  XLI. 

ACTIONS  FOR  MALICIOUS  PROSECUTION. 

1.  Grounds  of  action.  8.  Termination  of  the  prosecution. 

2.  The  prosecution.  .  9.  Damages. 

8.  Defendant's  agency.  10.  Defense;  Truth  of  the  charge. 

4.  Several  co-defendants.  11.  Probable  cause. 

6. . Plaintiffs  innocence.  12.  Freedom  from  malice. 

6.  Want  of  probable  cause.  13.  Advice  of  counsel. 

7.  Malice. 

1.  Grounds  of  Action.1] — The  essential  facts  are  that  defend- 
ant maliciously,8  and  also  without  reasonable  or  probable  cause,3 
prosecuted  or  instigated4   an    unfounded5  proceeding    against 
plaintiff,  to  his  injury,  and  which  terminated  in  his  favor.6 

2.  The  prosecution.'] — Before  malice  or  want  of  cause  is  shown, 
plaintiff  should  prove  the  prosecution  complained  of-;  and  for 
this  purpose  the  record,  if  any,  of  the  proceeding  is  competent.7 
The  mode  of  proving  a  record  has  been  already  stated.8    If  the 
recor^  contain  improper  matter,  it  is  not  to  be  excluded  on  that 

f  round,  but  defendant  may  ask  the  court  to  instruct  the  jury  to 
isregard  such  matter.9  Where  the  parts  for  which  defendant 
may  be  responsible  are  separable, — as  in  case  of  a  witness  sued 
for  maliciously  promoting  an  unfounded  charge, — or  a  complain- 
ant who  made  one  of  several  affidavits  before  a  magistrate, — the 
other  parts  of  the  proceedings  are  not  evidence  in  favor  of  de- 
fendant.10 An  indictment,  if  the  final  record  has  not  been  made 
up,  may  be  proved  by  producing  the  original  and  calling  the 
clerk  to  prove  that  it  is  a  record  of  his  court.11  A  variance  be- 
tween the  allegation  and  the  proof  of  the  former  proceeding  is 


1  See,  generally,  Wheeler  v.  Nesbit,  24  How.  U.  S.  544.  For  the  distinction,  in 
pleading  and  evidence,  between  an  action  for  illegal  arrest  or  false  imprisonment,  and 
one  for  malicious  prosecution,  see  Burns  v.  Erben,  40  N.  Y.  463,  affi'g  1  Robt.  655. 
As  to  defamation,  see  Sheldon  v.  Carpenter,  4  N.  Y.  579;  Perkins  v.  Mitchell,  31 
Barb.  461. 

8  Blunt  v.  Little,  8  Mas.  102.  Equally  in  the  c<ise  of  a  civil  as  a  criminal  prose- 
cution. Stewart  v.  Sonneborn,  98  U.  S.  (8  Otto),  187. 

8  See  paragraphs  6,  11. 

4  See  Miller  v.  Milligan,  48  Barb.  30 ;  Thompson  v.  Lumley,  1  Abb.  New  Cas.  254. 

B  Paragraph  6. 

*  Moulfon  v.  Beecher,  1  Abb.  New  Cas.  193,  and  cases  cited.  Or,  that  such  ter- 
mination was  wrongfully  prevented  by  plaintiff.  Burt  v.  Place,  4  Wend.  591. 

1  Granger  v.  Warrington,  8  111.  (3  Gilm.)  299. 

8  See  Chapter  on  JUDGMENTS. 

'  Grander  v.  Warrington  (above). 

10  See  Burt  v.  Place,  4  Wend.  591 ;  Hankinson  v.  Giles,  17  Abb.  Pr,  251,  s.  o.  29 
How.  Pr.  478. 

11  Watta  v.  Clegg,  48  Ala.  N.  S.  561.    Compare  People  v.  Poyllon,  2  Cai.  202. 

[652] 


ACTIONS  FOR  MALICIOUS  PROSECUTION.  653 

not  to  be  regarded  unless  raising  a  strong  probability  that  the 
proceeding  is  not  the  same.1  To  show  how  far  the  prosecution 
was  pressed  by  defendant,  plaintiff  may  prove  acts  or  documents 
proceeding  from  third  persons,  though  wholly  unconnected  with 
defendant,  to  have  been  the  occasion  of  its  termination,  and  for 
this  purpose  a  writing — for  instance,  a  letter  to  the  magistrate — • 
may  be  proved  by  parol. 

3.  Defendants  agency.] — Slight  evidence  that  defendant  was 
the  instigator  is  sufficient  to  go  to  the  jury.2    If  the  prosecution 
was  instituted  by  defendants'  officer  or  agent,  plaintiff  should 
show  that  it  was  an  act  within  the  general  or  special  authority  of 
the  agent  or  officer.     A  general  authority  to  prosecute  may  be 
inferred  from  the  nature  of  the  employment,  and  the  usual  course 
of  business.3 

4.  Several  co-defendants.] — Separate  acts  and  declarations  of 
one  defendant  ought  not  to  be  admitted  in  evidence,  to  charge 
another,  not  present,  unless  there  is  independent  proof  of  a  con- 
spiracy.4 

5.  Plaintiff"' 's  innocence.'] — There  must  be  other  evidence  of 
the  unfounded  nature  of  the  charge,  than  the  plaintiff's  acquittal.5 
For  this  purpose  a  judgment  in  another  civil  action  between  the 
parties,  determining  the  very  point  in  issue, — such  as  replevin  for 
a  thing  charged  to  have  been  stolen, — is  competent.6 

6.  Want  of  probable  cause.] — The  question  of  probable  cause 
depends  on  evidence  of  the  facts  appearing  to  defendant,7  or 
which  he  ought  to  have  ascertained,®  at  the  time  he  acted ;  and 
want  of  probable  cause  cannot  be  shown  by  facts  not  appearing 
till  subsequently.9    Slighter  evidence  will  suffice  to  prove  want 
of  probable  cause  than  is  necessary  to  prove  an  affirmative ; 10  but 
it  must  be  substantially  shown.11    It  can  not  be  inferred  from  evi- 
dence even  of  express  malice,12  nor  from  the  mere  fact  of  the  un- 
successful termination  of  the  proceeding.13 

1  Leidig  v.  Rawson,  2  111.  2*72 ;  and  see  Mills  v.  McCoy,  4  Cow.  406. 
»  Miller  v.  Milligan,  48  Barb.  30. 

*  Bank  of  New  South  Wales  v.  Owston,  40  L.  T.  R.  N.  S.  600;  Walker  v.  East, 
era  Counties  Ry.  Co.  L.  R.  6  C.  P.  640 ;  pages  44,  647  of  this  vol. 

4  Carpenter  v.  Shelden,  6  Sandf.  77 ;  Snydacker  v.  Brosse,  61  111.  857.  Compare 
page  190  of  this  vol. 

4  Skidmore  v.  Bricker,  77  111.  164.  The  prosecution  complained  of  being  an 
arrest  for  assault,  if  plaintiff  gives  evidence  that  defendant  was  the  aggressor,  defend- 
ant may  show  the  nature  of  the  difficulty,  and  plaintiff's  threats.  Carpenter  v.  Hal- 
gey,  57  N.  Y.  657,  affi'g,  it  seems,  60  Barb.  45. 

*  Ewing  v.  Sandford,  21  Ala.  157,  165.     As  to  evidence  of  compounding  the  fel- 
ony prosecuted  for,  see  Pagan  v.  Knox,  1  Abb  New.  Cas.  246,  e.  o.  66  N.Y.  625 ;  Van 
Vorhes  v.  Leonard,  1  Supm.  Ct.  (T.  A  C.)  148. 

7  Stewart  v.  Sonneborn,  98  U.  S.  (8  Otto),  187. 

8  Grinnell  v.  Stewart,  32  Barb.  544,  B.  c.  'l2  Abb.  Pr.  220,  20  How.  Pr.  478. 

9  Stewart  v.  Sonneborn  (above). 

10  Haupt  v.  Pohlmann,  1  Robt.  121,  8.  c.  16  Abb.  Pr.  301. 

11  Gorton  v.  De  Angelis,  6  Wend.  418 ;  Murray  v.  Long,  1  Id.  140. 

"  Stewart  v.  Sonneborn,  98  U.  S.  (8  Otto),  187,  and  cases  cited ;  Besson  v.  South- 
•rd,  10  N.  Y.  236. 

IS  Stewart  v.  Sonneborn  (above) ;  Gordon  v.  Upham,  4  E.  D.  Smith,  9 ;  Baboo 


654:  ACTIONS  FOR  MALICIOUS  PROSECUTION. 

If  the  prosecution  was  a  criminal  charge,  80  that  character 
would  have  been  relevant  to  the  issue,  plaintiff's  good  character, 
with  defendant's  knowledge  of  it,  are  competent  as  tending  to 
show  want  of  probable  cause.1 

7.  Malice.'} — Actual  malice  must  be  shown,2  but  it  is  not  nec- 
essary to  show  angry  feeling  or  vindictive  motive.8    It  may  he 
shown  by  circumstances  not  alleged.4    It  may  be  inferred  by  the 
jury,5  but  is  not  presumed  by  the  law,6  from  want  of  probable 
cause.     It  cannot  be  proved  by  the  mere  fact  of  the  unsuccessful 
termination  of  the  prosecution,7  nor  from  mere  omission  to  prose- 
cute ;  but  a  voluntary  discontinuance  is  prima  facie  sufficient 
evidence  of  it.8    It  may  be  inferred  from  an  intention  to  use 
crimiDal  process  as  a  means  of  extorting  payment  of  a  debt.9 

8.  Termination  of  the  proceeding.'] — A  record  showing  ac- 
quittal10 is  sufficient  evidence  of  termination  favorable  to  plaint- 
iff.11   If  a  formal  record  has  not  been  made  up,  the  acquittal  may 
be  proved  by  reading  the  minute  entry,  with  testimony  of  the 
clerk  to  its  being  a  record  of  his  court." 

It  is  not  enough  to  show  a  compromise,13  nor  that  the  prose- 
cuting officer  refused  to  proceed  to  trial.14  Evidence  that  the 
jury  hesitated  by  reason  of  doubt  as  to  guilt  is  not  competent.15 

9.  Damages.'] — The  process  and  proceedings  thereon  by  which 
the  injury  to  plaintiff  and  his  property  and  repute  were  done,  are 
competent  for  the  purpose  of  showing  the  damages.16    The  offi- 
cer's return,  that  the  process  was  not  levied,  is  not  conclusive 
against  plaintiff.17    Special  damages  cannot  be  proved  unless 


Gnnesh  Dntt  v.  Mugneeram  Chowdry,  11  Beng.  L.  R.  321.  Compare  Palmer  v. 
Avery,  41  Barb.  290 ;  Scott  v.  Simpson,  1  Sandf.  601 ;  Vanderbilt  v.  Mathis,  5  Duer, 
804;  Wlritfield  v.  Westbrook,  40  Miss.  311. 

1  Blizzard  v.  Hays,  46  Ind.  166,  s.  c.  15  Am.  R.  291 ;  Israel  v.  Brooks,  23  111.  575. 

2  Bulkeley  v.  Smith,  2  Duer,  261,  s.  c.  11  S.  Y.  Leg.  Obs.  300 ;  and  see  Farnam 
V.  Feeley,  56  N.  Y.  451. 

3  (BROXSON,  J.)  Burhans  v.  Sanford,  19  "Wend.  417. 

4  Solis  v.  Manning,  37  How.  Pr.  13. 

6  Blunt  v.  Little,  3  Mas.  102,  and  cases  cited. 

6  Stewart  v.  Sonneborn,  98  U.  S.  (8  Otto),  187,  and  cases  cited;  Jennings  v.  David- 
eon,  13  Hun,  393. 

7  Stewart  v.  Sonneborn,  98  U.  S.  (8  Otto),  187. 

8  Burhans  v.  Sanford,  19  Wend.  417,  and  cases  cited ;  Garrison  T.  Pearce,  3  E.  D. 
Smith,  255. 

»  Grinnell  v.  Stewart,  32  Barb.  544,  s.  c.  12  Abb.  Pr.  220,  20  How.  Pr.  478. 
Arrest  in  an  action  on  one  side  of  an  account  only,  by  one  having  knowledge  of  the 
other  side,  is  presumptive  evidence  of  malice.  (SHAW,  Ch.  J.)  Briggs  v.  Richmond, 
10  Pick.  391,395. 

10  Mills  v.  McCoy,  4  Cow.  406. 

11  That  it  is  conclusive,  see  Steph.  Ev.  48,  citing  Leggatt  v.  Tollervey,  14  Ex.  301; 
and  see  Caddy  v.  Barlow,  1  Man.  &  Ry.  277. 

13  Watts  v.  Clegg,  48  Ala.  N.  S.  561. 
18  McCormick  v.  Sisson,  7  Cow.  715. 

14  Thomason  v.  Demotte,  9  Abb.  Pr.  242,  s.  c.  18  How.  Pr.  629. 

15  Scott  v.  Sheelor,  28  Gratt.  891. 

16  Donnell  v.  Jones,  13  Ala.  490;  IT  Id.  689. 
"  Mott  v.  Smith,  2  Cranch  C.  Ct.  33. 


ACTIONS  FOR  MALICIOUS  PROSECUTION".  655 

alleged.1  Opinions  of  witnesses  are  not  competent  directly  to 
the  amount  of  damage  to  credit  or  business  standing.2  Evidence 
of  defendant's  wealth  is  competent  to  enhance  damages.8 

10.  Defense;  Truth  of  the  charge^ — Truth  is  a  justification 
without  denial  of  malice.4 

11.  Probable  cause.] — Probable  cause  may  be  shown  under  a 
general  denial.5    Belief  of  probable  cause  does  not  alone  amount 
to  probable  cause ;  reasonable  grounds  for  belief  must  be  shown.6 
The  fact  that  the  prosecution  terminated  in  convicting  plaintiif, 
is  conclusive  evidence  of  probable  cause,  and  is  only  rebutted  by 
evidence  that  his  conviction  was  fraudulently  procured  by  de- 
fendant by  means  which  prevented  plaintiff  from  setting  up  his 
defense.7    A  decision  or  order  against  him  pendente  lite  is  com- 
petent,8 but  not  conclusive.9    Evidence  that  defendant  acted  in 
good  faith  is  competent,  but  not  alone  enough  to  show  probable 
cause.10    Plaintiff's  bad  character  is  not  primarily  competent  as 
evidence  of  probable  cause,11  though  it  may  be  shown,  if  plaintiff 
has  given  evidence  to  the  contrary.13    It  may  also  be  shown  in 
mitigation  of  damages.13 

12.  Freedom  from  malice.'] — To  disprove  malice  in  making  a 
criminal  charge,  defendant  may  be  asked,  as  a  witness  in  his  own 
behalf,  whether,  when  he  made  the  charge,  he  believed  that 
plaintiff  had  been  guilty  of  the  offense.14    The  declarations  of  the 
defendant,  made  as  part  of  the  res  ycstts,  of  an  act  in  the  proceed- 
ings alleged  to  be  malicious,  are  competent  in  his  own  favor  to 
negative  malice.15    But  the  declarations  of  his  agent  or  attorney, 
unless  brought  home  to  him,  are  not.16 

13.  Advice  of  counsel.] — The  fact  that  defendant  acted  under 
advice  of  counsel  is  relevant,  both  to  show  probable  cause 17  and 


1  Strang  v.  Whitehead,  12  Wend.  64  ;  Vanderslice  v.  Newton,  4  N.  Y.  130.    Com- 
pare L.iwrence  v.  Hagerman,  56  111.  68,  s.  c.  8  Am.  R.  674. 

4  Donnell  v.  Jones,  13  Ala.  490.     Compare  p.  616  of  this  vol. 

3  Whitfield  v.  Westbrook,  40  Miss.  311. 

4  Bank  of  British  North  America  v.  Strong,  L.  R.  1  App.  Cas.  307,  317,  s.  o.  16 
Moak'a  Eng.  24,  33. 

8  Simpson  v.  Me  Arthur,  16  Abb.  PP.  302,  note. 

6  Whitfield  v.  Westbrook,  40  Miss.  311. 

7  Miller  v.  Deere,  2  Abb.  Pr.  1 ;  Burt  v.  Place.  4  Wend.  591. 

8  Zantzinger  v.  Wei^htman,  2  Cranch  C.  Ct.  478. 

.      •  Haupt  v.  Pohlmann,  1  Robt.  121,  s.  o.  16  Abb.  Pr.  301. 

10  Shafer  v.  Loucks,  58  Barb.  426. 

11  1  Whnrt.  Ev.  62,  §  47 ;  and  see  Hickman  v.  Jones,  9  "Wall  197. 

12  See  Paragraph  6. 

13  1  Whart.  (above). 

14  McKown  v.  Hunter,  30  N.  Y.  625.     And  see  Goodman  v.  Stroheim,  86  Super. 
Ct.  (4  J.  &  S.)  216.    That  he  cannot  be  asked  if  he  acted  without  malice,  see  Lawyer 
V.  Loomis,  3  Supm.  Ct.  (T.  <fe  C.)  893.     Compare  p.  620  of  this  voL 

15  Wood  v.  Barker,  37  Ala.  CO. 
"Floyd  v.  Hamilton,  33  Ala.  238. 
11  Hall  v.  Suydam,  6  Barb.  63. 


656  ACTIONS  FOR  MALICIOUS  PROSECUTION. 

absence  of  malice.1  To  render  the  opinion  or  advice  competent, 
it  must  appear  that  it  was  given  before  defendant  proceeded,2  and 
the  statement  of  facts  was  which  was  laid  before  the  attorney  or 
counsel  must  be  shown.3  Defendant  need  not  show  the  ability  or 
learning  of  the  attorney,  as  this  is  presumed  from  evidence  that 
he  was  a  duly  licensed  practitioner.4  If  defendant  shows  a  full 
and  fair  statement  made  by  him  to  a  respectable  attorney,  and 
that  he  acted  on  his  advice,  strong  evidence  that  defendant  did 
not  believe  there  was  probable  cause  is  necessary.5 


1  Jackson  v.  Mather,  7  Cow.  301. 

9  Blunt  v.  Little,  3  Mas.  102. 

8  Id. ;  and  see  Laird  v.  Taylor,  66  Barb.  139. 

«•  Home  v.  Sullivan,  83  111.  32. 

•  Skidmore  v.  Bricker,  77  I1L  164. 


OHAPTEE  XLII. 

ACTIONS  FOR  FALSE  IMPRISONMENT. 

1.  General  rules.  4.  Damages. 

2.  Grounds  of  action.  5.  Justification. 
8.  Legal  process,  Ac. 

1.  General  rules.] — The  reader  should   consult  the  fuller 
statement  of  the  rules  applicable  to  the  mode  of  proof,  given  in 
the  chapters  on  ASSAULT  AND  BATTEET  and  MALICIOUS  FBOSECU- 
TION. 

2.  Grounds  of  action.1] — Evidence  of  malice  is  not  essential;2 
want  of  probable  cause  is.3 

3.  Legal  process,  <&c.~] — The  appropriate  recitals  in  process 
put  in  evidence  by  plaintiff  as  the  instrument  of  his  arrest,  are 
prima  facie  evidence  against  him,  of  the  facts  recited.4    If  plaint- 
iff relies  upon  the  failure  of  the  judgment  to  support  the  process 
against  him,  he  must  show  that  the  process  by  defendant  was 
issued  on  the  particular  judgment ;  also  the  defect  or  vacatur  re- 
lied on.5    The  police  records,  if  not  kept  pursuant  to  a  require- 
ment of  law,  are  not  competent  as  evidence  of  the  injury  and 
indignity  to  plaintiff  resulting  from  defendant's  charge  against 
him,  unless  it  be  shown  that  defendant  knew  that  it  was  the  cus- 
tom to  make  such  a  record.' 

4.  Damages. ,] — Matters  of  aggravation,7  as  distinguished  from 
grounds  of  special  damages,  may  be  proved  though  not  pleaded. 

5.  Justification  and  mitigation.'] — Under  a  denial  of  an  alle- 
gation that  the  imprisonment  was  without  warrant,  defendant 
may  justify  under  legal  process.8    A  justification  which  is  not  in 
issue  is  not  admissible  in  bar  under  a  denial,9  unless  the  facts  may 


1  For  the  distinction  between  this  action  and  malicious  prosecution,  see  Chapter 
XLI,  and  Sleight  v.  Ogle,  4  E.  D.  Smith,  445  ;  Ackroyd  v.  Ackroyd.  3  Daly,  38 ;  Von 
Latham  v.  Libby,  38  Barb.  339,  s.  o.  17  Abb.  Pr.  237  ;  Brown  v.  Chadsey,  89  Barb.  253. 

s  Platt  v.  Miles,  1  Edna.  230. 

*  Id. ;  Hawley  v.  Butler,  64  Barb.  490,  disapproving  a  previous  decision  in  48 
Id.  101 ;  and  see  Carl  v.  Ayres,  53  N.  Y.  14  ;  Farnham  v.  Fceley,  56  N.  Y.  451. 

4(WALwoRTH,  Chan.)  Bradstreet  v.  Furgeson,  23  Wend.  638,  affi'g  17  Id.  181, 
and  cases  cited;  Scott  v.  Ely,  4  Wend.  656. 

6  See  Brown  v.  Demont,  9  Cow.  263  ;  Barhydt  v.  Valk,  12  Wend.  145. 
6  Garvey  v.  Wayson,  42  Md.  178,  187  ;  1  Whart.  Ev.  §  639. 

*  Stanton  v.  Seymour,  5  McLean,  267. 

8  Boynton  v.  Tidwell,  19  Tex.  118. 

9  Brown  v.  Chadsey,  39  Barb.  263. 

43  [657] 


658  ACTIONS  FOR  FALSE  IMPRISONMENT. 

be  available  if  offered  solely  in  mitigation  of  damages.  In  justi 
fying  under  process,  a  defendant  other  than  the  officer  who  exe- 
cuted it  need  not  prove  its  return.1  Evidence  that  a  party  mean- 
ing to  influence  the  other's  conduct,  made  representations  or  ad- 
missions (even  as  to  the  nature  or  contents  of  a  record)  having 
that  effect,  will  estop  him  from  showing  the  contrary  to  the 
prejudice  of  the  latter.2 

To  show  good  faith  in  his  conduct  defendant  may  give  in  evi- 
dence any  communication  actually  made  to  him  before  he  acted, 
and  which  influenced  his  action ;  but  not  so  even  of  a  record  which 
was  not  communicated  to  him,  and  to  which  plaintiff  was  neither 
party  nor  privy.3 


1  Plummer  v.  Dennett,  6  Greenl.  (Me.)  421. 

9  Howard  v.  Hudson,  2  Ell.  <fe  B.  1;    Compare  McMasters  v.  Ins.  Co.  of  N. 
55  N.  Y.  222,  227. 

*  Thomas  v.  Russell,  9  Ex.  764. 


CHAPTEE  XLIII. 

ACTIONS  FOR  SLANDER  OR  LIBEL. 

1.  Order  of  proof.  14.  Malice. 

2.  Inducement.  16.  Action  on  privileged  communication. 
8.  Plaintiff's  vocation,  Ac.  16.  Slander  of  title. 

4.  Good  repute.  17.  Damages. 

6.  Slander.  18.  Defense.     Explaining  the  words. 

6.  —  its  utterance.  19.  Privileged  communication. 

V.  Publication  of  libel.  20.  Justification. 

8.  —  its  place  and  time.  21.  Former  recovery. 

9.  —  contents.  22.  Mitigation. 

10.  Meaning  of  the  words.  23.  Plaintiff's  character, 

11.  Their  application  to  the  plaintiff.  24.  Mode  of  proving  character. 

12.  Circulation.  25.  Rebuttal. 

13.  Falsity. 

1.  Order  of  proof.'] — The  usual  order  of  proof  is  :  1.  Plaint' 
iff  s  vocation,  if  involved  ;  2.  Other  extrinsic  facts  in  the  induce- 
ment, if  any  are  material ;  3.  The  utterance  or  publication ;  4. 
Facts  essential  to  the  colloquium  or  innuendoes ;  5.  Extrinsic 
evidence  of  malice ;  6.  Damages. 

2.  Inducement.'} — Matter  alleged  by  way  of  inducement,  if 
not  material  to  the  cause  of  action,  is  not  in  issue,  and  is  not  ad- 
mitted by  failure  to  deny,  nor  need  it  be  proved  if  denied ;  but  if 
material,  it  ia  admitted  or  must  be  proved.1    Matter  of  induce- 
ment wholly  collateral  to  the  issue,  may  be  proved  by  parol, 
without  producing  existing  record  evidence.2 

3.  Plaintiff's  vocation,  (fccJ] — Plaintiffs  vocation  or  official 
character  need  not  be  proved,  even  though  alleged,3  if  the  words 
are  actionable  apart  from  that ;  but  it  may  be  proved,  even  though 
not  alleged,  if  the  words  directly  tend  to  injure  him  in  it.4    If  the 
actionableness  of  the  words  depends  upon  injury  in  vocation5 
(and  the  vocation  is  in  issue),  plaintiff  must  prove    that  he  was 
in  the  vocation  alleged 8  at  the  time  of  the  publication ; 7  but  evi- 


1  Coleman  v.  Southwick,  9  Johns.  45,  s.  c.  6  Am.  Dec.  253  ;  May  v.  Brown,  3  B. 
<t  C.  122 ;  Folk.  Stark.  556,  §  625 ;  Towns.  653,  §  385 ;  Kinney  v.  Nash,  3  N.  Y. 
177. 

*  Pouthwick  v.  Stevens,  10  Johns.  443, 
1  Lewis  v.  Walter,  3  B.  &  C.  138. 

*  Sanderson  v.  Caldwell,  45  N.  Y.  398. 

*  See  Miller  v.  David,  L.  R.  9  C.  P.  118,  s.  o.  8  Moak*s  Eng.  434;  Tobias  v.  Har- 
iand,  4  Wend.  637. 

4  Manning  v.  Clement,  7  Bing.  362. 

'  Harris  v.  Burlev,  8  N.  H.  216;  Forward  v.  Adams,  7  Wend.  204.  Compare 
Cramer  v.  Riggs,  17  Id.  209. 

[659] 


660  ACTIONS  FOR  SLANDER  OR  LIBEL. 

dence  of  appointment  just  before  may  be  sufficient  prima  facie 
evidence  of  continuance.1 

The  defamatory  matter  itself,  if  it  admits  that  defendant  had 
a  particular  official  character  or  vocation,  is  prima facie  evidence 
for  plaintiff  on  that  point.8  The  holding  an  office  which  is  not 
matter  of  documentary  appointment,  may  be  shown  by  evidence 
of  acting  in  it.3  If  documentary,  the  original  appointment  should 
be  proved,  or  its  absence  accounted  for  and  secondary  evidence 
given.4  If  the  business  is  one  for  which  a  license  is  required  by 
law,  plaintiff  need  not  prove  a  license,5  unless  the  imputation  of 
pursuing  it  without  a  license  is  involved  in  the  defamation.6 

4.  Good  repute.'] — Plaintiff  need  not,  in  the  first  instance,  give 
any  evidence  of  his  good  name.7 

5.  Slander.'] — Although  plaintiff's    allegation  sets  forth  the 
words  of  the  alleged  slander  (as  the  rules  of  pleading  now  usually 
require),  he  need  not  prove  the  utterance  of  those  precise  words,8 
nor  necessarily  all  of  them,  even  in  substance ;  *"  but  he  must 
prove  the  utterance  of  substantially  the  words  alleged,10  or  of  a 
sufficient  part  of  them  to  sustain  an  action.11    Substantially  differ- 
ent words,  though  imputing  the  same  charge,  are  not  enough;12 


1  Rose.  N.  P.  86. 

1  Yrisarri  v.  Clement,  3  Bing.  432 ;  2  Whart.  Ev.  §  1153. 

8  Cannell  v.  Curtis,  2  Bing.  N.  C.  228 ;  2  Stark.  Ev.  3  ed.  627 ;  and  see  page  193 
of  this  vol. ;  Brown  v.  Mima,  2  M:ll's  Const.  (S.  C.)  235. 

4  Folk.  Stark.  552  [41 1],  §  520.  Otherwise,  where  the  office  5s  not  material  to  the 
cause  of  action. 

6  Fry  v.  Bennett,  28  N.  T.  324,  affi'g  3  Bosw,  200.   Compare  pp.  287,  358  of  this  TO!. 

6  See  Pickford  v.  Gutch,  8  T.  R.  305,  n. ;  Collins  v.  Carnegie,  1  Ad.  &  E.  695. 

7  Cox  v.  Thomason,  2  C.  <fe  J.  861.     Whether  he  may  do  so  before  it  has  been 
impugned  by  defendant's  evidence  is  disputed.     For  the  affirmative,  see  Williams  v. 
Greenwade,  3  Dana,  432;  Bennett  v.  Hyde,  6  Conn.  24,  27  ;  King  v.  Waring,  5  Esp. 
14.     For  the  negative,  see  Cornwall  v.  Richardson,  R.  &  M.  305  ;  Inman  v.  Foster,  8 
Wend.  602;  Shipman  v.  Burrows,  1  Hall,  399,  and  cases  cited. 

8  Desmond  v.  Brown,  29  Iowa,  53,  s.c.  4  Am.  R.  194 ;  Hersh  v.Ringwalt,  3  Yates 
(Pa.),  508.  s.  c.  2  Am  Dec.  392.    CWra,  Towns.  622,  §  365.    "There  is  nothing  more 
difficult  than  for  a  witness  to  recollect  the  exact  language  used  by  another ;  and  to  re- 
quire this  would  be  to  defeat  the  recoveries  in  actions  for  verbal  slander,  in  almost  every 
instance."    CHURCH,  Ch.  J.,  \Villiams  v.  Miner,  18  Conn.  464, 4*74.   If  the  precise  words 
are  important,  and  the  witness,  though  con6dent,  is  not  positive  in  his  testimony,  the 
jury  may  find  the  words  not  proved.     Harding  v.  Brooks,  5  Pick.  244,  249.     See  3 
Abb.  New  Cas.  283,  n.   The  rules  as  to  a  witness  refreshing  his  memory  by  memoranda, 
have  been  already  stated,  page  320  of  this  vol. 

9  Purple  v.  Ilorton,  13  Wend.  9;    Nestle  v.  Van  Slyck,  2  Hill,  282 ;    Olmsted  v. 
Brown,  12  Barb.  657.     Even  though  the  words  unproved  qualify  those  proved.    Folk. 
Stark.  461,  §  429.     Contra,  Towns.  622,  §  365. 

10  Estes  v.  Antrobus,  1  Mo.  197,  s.  c.  13  Am.  Dec.  496,  and  n.  cit. ;  Bundy  v.  Hart, 
46  Mo.  460,  s.  c.  2  Am.  R.  625.  And  in  the  tongue  or  language  alleged.  Keenholts 
V.  Becker,  3  Den.  846 ;  Wormouth  v.  Cramer,  3  Wend.  394.  But  a  variance  in  this 
respect,' as  in  others,  may  be  cured  by  amendment.  Lettman  v.  Ritz,  3  Sandf.  734. 

"  Hume  v.  Arrasmith,  1  Bibb  (Ky.),  165,  s.  c.  4  Am.  Dec.  626. 

IS  Wheeler  v.  Robb,  1  Blackf.  330,  s.  c.  12  Am.  Dec.  245.  and  n.  Contra,  Williams 
v.  Miner,  1 8  Conn.  464,  474,  and  cases  cited.  The  object  of  this  rule  is  to  give  notice 
to  defendant,  not  merely  of  the  nature  of  the  charge,  but  the  language  in  which  it  was 
uttered.  Doherty  v.  Brown,  10  Gray,  250. 


ACTIONS  FOR  SLANDER  OR  LIBEL.  661 

but  substantially  the  same  words,  though  varying  in  form  of  ex- 
pression,  are  admissible.1  If  the  charge  alleged  was  a  specific  one, 
evidence  that  defendant  made  a  general  charge  is  a  variance.2 

Under  the  new  procedure,  a  variance  that  has  not  misled  de- 
fendant to  his  prejudice,  may  be  cured  by  amendment  or  disre- 
garded.8 

If  the  pleading  states  only  the  substance  (where  this  is  allowed), 
it  is  enough  to  prove  the  substance.4 

Words  alleged,  though  not  slanderous,  may  be  proved  by 
plaintiff,to  show  the  intent  with  which  slanderous  words,  alleged 
in  the  same  count,  were  spoken.5 

Utterances  not  included  in  those  alleged,6  cannot  be  proved  as 
a  cause  of  action;  but  may  be  proved  to  show  meaning  and  in- 
tent, within  limits  stated  below. 

The  result  of  the  rules  on  this  point,  shortly  stated,  is  that : 
Where  the  allegation  and  proof  vary  as  to'  the  words,  it  is  enough 
if  plaintiff  proves  that  a  distinct  slanderous  charge  alleged,  which 
is  separable  from  any  other  unproven  words  alleged,  was  uttered 
in  substantially  the  words  alleged,  it  not  appearing  to  have  been 
materially  qualified  by  other  words  not  alleged. 

6.  —  its  utterance."] — Utterance  of  the  words  denied  in  one 
plea  or  defense,  may  be  proved  by  a  plea  or  defense  confessing 
utterance,7  but  not  by  one  avoiding  without  confessing.  The  ut- 
terance may  be  proved  by  plaintiff's  testimony,  though  other 
persons  not  produced  as  witnesses  were  present. 

There  must  be  some  evidence  that  the  words  were  heard  and 
understood  by  some  person  other  than  plaintiff,  to  whom  they 
were  addressed.8 


1  Smith  v.  Hollister,  82  Vt  695. 

8  Aldrich  v.  Brown,  11  Wend.  596;  Emery  v.  Miller,  1  Den.  208;  Coons  v.  Rob- 
inson, 3  Barb.  625.  As  a  general  rale,  the  evidence  substantially  varies  from  the  al- 
legation, when  it  proves  a  charge  of  an  offense  not  identically  the  same  with  that 
alleged,  though  of  the  same  species.  Payson  v.  Macomber,  3  Allen,  69,  72. 

8  N.  Y.  Code  Civ.  Pro.  $  539 ;  Coleman  v.  Playsted,  36  Barb.  26. 

4  Nye  v.  Otis,  8  Mass.  121,  s.  c.  5  Am.  Dec.  79 ;  Whiting  r.  Smith,  13  Pick.  364. 
Or  even  equivocal  or  apparently  innocuous  words,  with  extrinsic  evidence  of  manner, 
circumstances,  <fcc.,  giving  them  the  meaning  of  the  general  allegation.  Pond  v.  Hart- 
well,  1 7  Tick.  269,  270,  SHAW,  C.  J. 

6  Dioyt  v.  Tanner,  20  Wend.  190. 

6  Whether  those  of  defendant  (Camfield  v.  Bird,  3  Carr.  <fe  K.  66);  or  those  of  an- 
other person,  alleged  to  have  been  adopted  by  defendant  (Blessing  v.  Davis,  24  Wend. 
lOu). 

*  Alderman  v.  French,  1  Pick.  1,  s.  c.  11  Am.  Dec.  114.  Omtra,  Wheeler  v.  Robb, 
1  Blaokf.  (Ind.),  330,  s.  c.  12  Am.  Dec.  245.  Under  the  new  procedure,  which  allows 
the  joining  of  defenses  not  necessarily  inconsistent,  the  question  is,  whether  the  spe- 
cial pU'a  or  answer  expressly,  or  by  necessary  implication,  admits  or  does  not  admit 
the  publication.  A  justification  may  or  may  not.  Under  proper  pleadings,  a  defend- 
ant may  show  both  that  he  never  published  the  defamatory  matter,  and  that,  whoever 
may  have  done  so,  it  was  true.  Denial  of  publication,  and  avcrnipnt  of  truth,  are  not 
inconsistent ;  (Payson  v.  Mac  :mber,  8  Allen,  69,  73  ;)  unless  pleaded  in  such  a  way 
as  to  be  inconsistent.  Jackson  v.  Stetson,  15  Mass.  48,  62. 

8  Brodt-rick  v.  James,  3  Daly,  481 ;   Haile  v.  Fuller,  2  Hun,  519.     Compare  Phil- 


662  •  ACTIONS  FOR  SLANDER  OR  LIBEL. 

A  variance  as  to  the  person  is  not  necessarily  fatal.1  The 
moral  or  intellectual  character  of  the  hearer  is  not  relevant.3 
The  time  of  utterance  must  be  proved  to  have  been  before  ac- 
tion ;  and  if  the  only  witness  cannot  swear  to  this,  his  testimony 
is  irrelevant.8  But  a  variance  in  respect  to  the  time  is  imma- 
terial.4 

7.  Publication  of  libel.'} — Publication  by  defendant  should  be 
proved  before  reading  the  contents.5  An  allegation  of  publica- 
tion by  defendant  admits  proof  of  publication  by  his  authorized 
agent  or  servant.6  If  joint  publication  is  alleged,  it  must  be 
proved  to  have  been  joint.7  Under  either  an  allegation  of  print- 
ing or  one  of  writing,  the  other  form  of  publication  may  be 
proved,  unless  defendant  is  misled.8  The  rules  for  proving  hand- 
writing have  been  already  stated.9 

Publication  may  be  proved  by  plaintiff's  testimony ;  but  not 
by  that  of  defendant,  if  he  claims  his  privilege.  It  may  be  proved 
by  evidence  of  defendant's  declarations  and  admissions  out  of 
court,10  and  if  his  admission  was  qualified  by  suggesting  that  there 
were  errors  in  the  printing,  the  burden  is  on  him  to  show  mate- 
rial errors.11  It  may  be  proved  by  the  one  who  read  it,  notwith- 
standing he  did  it  under  a  pledge  of  secrecy.12 

Proof  that  a  newspaper  or  periodical  came  from  defendant's  of- 
fice, and  was  one  copy  of  an  edition  of  the  same  date,  and  alleging 
on  its  face  that  he  is  the  proprietor,  is  evidence  of  publication  by 
defendant.13  One  proved  to  have  been  proprietor  of  a  journal  two 
or  three  years  previously,  may  be  presumed  to  have  continued  pro- 
prietor." Evidence  of  delivery  by  defendant,  whether  in  way  of 
circulation  among  readers,15  or  by  way  of  deposit  in  a  public  office,18 


lips  v.  Barber,  7  Wend.  439.  "Words  spoken  in  a  foreign  language  must  be  proved  to 
have  been  spoken  in  the  hearing  of  one  who  understood  them.  Bac.  Abr.  Slander 
(D.  3). 

1  Goodrich  v.  Warner,  21  Conn.  432,  443. 

*  Sheffill  v.  Van  Deusen,  15  Gray,  485. 

3  Scovell  v.  Kingsley,  7  Conn.  284. 

4  Potter  v.  Thompson,  22  Barb.  87.     Even  though  the  evidence  is  of  an  utterance 
more  than  two  years  before  suit  (Birchett  v.  Davis,  21  Pick.  404);  in  which  case, 
however,  defendant  should  be  allowed  to  amend  by  pleading  the  statute  of  limitations. 
Id. 

5  Folk.  Stark.  656.  8  626. 

«  Folk.  Stark.  571  [427],  §  538. 

1  Johnson  v.  Hudson,  7  Ad.  &  E.  233,  n. 

8  Trumbull  v.  Gibbons,  3  City  H.  Rec.  97. 

9  Pages  392  to  398  of  this  vol. ;    and  see  Cochrane  v.  Butterfield,  18  K  H.  115. 
Compare  U.  S.  v.  Chamberlain,  12  Blatchf.  390. 

10  Lewis  v.  Few,  5  Johns.  1,  33  ;  Burt  v.  McBain,  29  Mich.  260.  As  to  allegation 
of  truth,  coupled  with  admissions,  see  Rice  v.  Withers,  9  Wend.  138 ;  Rouse  v.  White, 
25  N.  Y.  170. 

"  Rex  v.  Hall,  1  Str.  416. 

18  Towns.  650,  §  384. 

13  Towns.  644,  §  379. 

14  Fry  v.  Bennett,  28  N.  Y.  324,  affi'g  3  Bosw.  200. 

15  Respublica  v.  Davis,  3  Yates  (Pa.),  128,  s.  o.  2  Am.  Deo,  866. 

16  King  v.Amphlit,  4  B.  <fc  C.  35. 


ACTIONS  FOR  SLANDER  OR  LIBEL.  663 

% 

is  prima  facie  evidence  of  publication.  Sale  by  a  clerk  or  agent 
in  a  Bhop,  in  the  usual  Sourse  of  business,  is  prima  facie  evidence 
of  publication  by  the  principal.1  Evidence  of  sale  of  a  single 
copy,  though  to  plaintiff's  agent,  shows  publication.2 

An  open  libel,  with  proof  that  it  is  written  or  signed  in  the 
hand  of  defendant,  is  prima  facie  evidence  of  publication  by 
him.3  Evidence  that  a  manuscript  in  defendant's  handwriting 
was  printed  and  published,  is  evidence  from  which  the  jury  may 
infer  printing  and  publication  by  direction  of  defendant.4  Pub- 
lication of  a  handbill  or  affiche  is  prima  facie  shown  by  evidence 
that  it  was  posted,  so  that  it  might  have  been  seen  and  read,  with- 
out anything  to  indicate  that  it  was  not.5 

Publication  of  a  letter  addressed  to  a  third  person  is  prima 
facie  shown  by  the  fact  that  it  passed  through  the  mail,  in  course, 
and  is  produced  unsealed  on  the  trial.6  Publication  of  a  letter 
addressed  to  plaintiff  himself  may  be  prima  facie  shown  by  evi- 
dence that  defendant  read  it  to  another.7 

8.  Place  and  time  of  publication.} — Designation  of  a  place,  in 
the  date  of  a  libellous  writing,  is  prima  facie  evidence  that  it  was 
written  there,  as  against  the  writer.    Publication  by  defendant  in 
a  journal,  wherever  printed,  and  circulation  at  a  place  within  the 
State,  is  evidence  of  publication  at  the  latter  place.8    A  variance 
in  the  date  of  publication  is  not  material,9  if  defendant  is  not 
misled.  g 

9.  —  contents."] — The  libellous  document  must  be  produced,  as 
the  primary  evidence  of  its  contents.     If  it  has  been  lost  or  de- 
stroyed, without  the  plaintiffs  fault,  it  may  be  accounted  for,  and 
secondary  evidence  of  the  contents  given,10  unless  it  was  a  privi- 
leged communication.11 

Publication  in  a  book  or  newspaper  having  been  brought  home 
to  defendant,  any  copy  of  the  impression  may  be  read  in  evidence ; 
it  is  not  necessary  to  produce  or  account  for  the  identical  copy 
referred  to  in  the  evidence  of  publication.18  As  against  one  liable 
merely  as  the  writer  of  an  article  printed,  the  original  copy  must 
be  produced  or  accounted  for.13 

1  Folk.  Stark.  573  [429],  §  638. 
8  Duke  of  Brunswick  v.  Harmer,  14  Q.  B.  185. 
1  Folk.  Stark.  559  [417],  §  530. 

«  Folk.  Stark.  560  [418],  §  531 ;  Tarpley  v.  Blabey,  2  Bing.  New  Gas.  437. 
5  Towns.  639,  §  872.     And  see  Rice  v.  Withers,  9  Wend.  138. 
«  Warren  v.  Warren,  1  Cr.,  M.  &  R.  250;    Towns.  639.  §  874.      See  page  291  of 
this  vol. ;  Shipley  v.  Todhunter,  7  Carr.  <fe  P.  680. 

7  McCoorabs  v.  Tuttle,  5  Blackf.  (Ind.)  431. 

8  Commonwealth  v.  Blanding,  3  Pick.  304. 
»  Gates  v.  Bowker,  18  Vt.  23. 

10  Gates  v.  Bowker,  18  Vt.  23,  26 ;  Rainy  v.  Bravo,  L.  R.  4  P.  C.  287,  a.  c.  8  Moatfa 
Eng.  194. 

"  Dawkina  v.  Rokeby,  L.  R.  8  Q.  B.  255. 

11  See  Southwick  v.  Stevens,  10  Johns.  443  ;  Huff  v.  Bennett,  4  Sandf.  120,  afffd 
in  6  N.  Y.  337  ;  Mnimons  v.  Holster,  13  Minn.  249. 

13  Adams  v.  Kelly,  Ry.  &  M.  157.     So  of  one  who  published  by  reading  or  singing 
the  particular  copy.    Johnson  v.  Hudson,  7  Ad.  <t  E.  238. 


664  ACTIONS  FOR  SLANDER  OR  LIBEL. 

Secondary  evidence  must  reproduce  the  words.  The  witness* 
conception  of  their  effect,  or  the  substance  of  the  charge,  is  not 
sufficient.1  But  the  witness  may  state  the  substance  of  the  words, 
as  far  as  he  can  recollect  them.3  If  a  copy  is  produced,  evidence 
reasonably  identifying  it  as  corresponding  to  the  one  brought 
home  to  defendant,  and  published  by  him,  is  enough.3 

Plaintiff  may,  either  orally  or  in  writing,  abandon  at  the  tria) 
part  of  the  libellous  matter,  provided  the  part  remaining  is  ac- 
tionable ; 4  and  may  read  the  part  remaining  to  show  the  meaning 
of  the  part  relied  on.5 

Where  only  part  of  the  libel  is  alleged,  the  fact  that  the  part 
not  alleged  materially  qualifies  that  alleged,  although  as  qualified 
it  is  still  libellous,  is  a  variance.8 

10.  Meaning  of  ambiguous  words."] — Unless  the  court  holds 
that  the  words  are  not  capable  of  bearing  the  meaning  assigned, 
extrinsic  evidence  is  competent,  and  necessary,  to  show  that  on  the 
occasion  in  question  they  did  bear  that  meaning.7  Plaintiff  must 
satisfy  the  jury  either  that,  under  the  circumstances,  the  words 
themselves  fairly  bore  that  meaning,  or  that  the  speaker  intended, 
and  the  hearers  understood,  that  meaning  to  be  conveyed.  For 
this  purpose  dictionaries  and  other  such  books  of  authority  may  be 
used;8  evidence  of  defendant's  known  usages  of  speech'*  may  be 
given ;  the  sense  commonly  attached  to  foreign,  or  cant,  or  slang 
phrases  may  be  shown  by  the  testimony  of  witnesses ; 10  papers  re- 
ferred to  in  the  words  proved  may  be  read ; u  and,  in  the  case  of 
slander,  all  the  conversation  of  the  party  at  the  time  is  admis- 
sible.12 

1  Rainy  v.  Bravo  (above). 

8  Id.  It  will  be  for  the  jury  to  say  whether  his  recollection  can  be  trusted.  Id. ; 
eee  paragraph  8.  The  rules  as  to  refreshing  memory  have  already  been  stated. 
Page  320  of  this  vol. ;  Huff  v.  Bennett,  6  N.  Y,  337. 

3  Johnson  v.  Hudson,  7  Ad.  &  E.  233  ;   and  see  Southwick  v.  Stevens,  10  Johns. 
443. 

4  Genet  v.  Mitchell,  7  Johns.  120;    Gould  v.  Weed,  12  Wend.  12;    Stow  v.  Con, 
verse,  4  Conn.  17,  28.     According  to  some  authorities,  this  cannot  be  done  if  the  ad- 
ditional words  change  the  meaning  of  those  alleged.     Towns,  622,  §  366 ;  Rutherford 
V,  Evans,  6  Bing.  458. 

8  Genet  v.  Mitchell  (above). 

8  Rainy  v.  Bravo,  L.  R.  4  P.  C.  287,  8.  o.  3  Moat's  Eng.  194. 

7  Rose.  N.  P.  829,  and  cases  cited.     And  see  Wolcott  v.  Goodrich,  5  Cow.  714  ; 
Bollock  v.  Koon,  9  Id.  30 ;  Sanderson  v.  Caldwell,  45  N.  Y.  398. 

The  court  is  not  bound  to  take  notice  whether  words  spoken  in  a  foreign  country 
are  slanderous  there.  Plaintiff  should  be  prepared  to  prove  the  foreign  law.  Langdon 
v.  Young,  33  Vt.  136;  Bundy  v.  Hart,  46  Mo.  460,  s.  c.  2  Am.  R.  625. 

8  Pow.  Ev.  105. 

'  See,  on  this  subject,  page  132  of  thia  voL 

10  Wachter  v.  Qnenzer,  29  N.  Y.  547. 

11  Nash  v.  Benedict,  26  Wend.  645. 

»  Coleman  v.  Playsted,  36  Barb.  26.  See  Smith  v.  Miles,  16  Vt.  245,  249.  The 
better  opinion  under  the  free  rules  of  evidence  now  followed  is,  that  a  witness  who 
heard  the  conversation,  and  whq  testifies  to  all  the  circumstances,  may,  in  case  of 
ambiguous  words,  be  permitted  to  state  the  impression  they  made  upon  his  mind  at 
the  time  he  heard  them ;  but  this  impression  is  not  sufficient  to  determine  their  mean- 


ACTIONS  FOR  SLANDER  OR  LIBEL:  665 

If  plaintiff  relies  on  extrinsic  circumstances  as  putting  the 
sting  of  a  charge  of  crime  into  words  not  necessarily  actionable 
in  themselves,  he  must  prove  sufficient  of  those  circumstances  to 
raise  a  fair  presumption  that  the  conduct  imputed  might  have 
been  a  criminal  offense ;  but  he  need  not  show  that  it  necessarily 
would  have  been.1 

11.  Their  application  to  the  plaintiff.'] — If  the  defamatory 
matter  does  not  name  plaintiff,  extrinsic  evidence  is  competent  '* 
and  necessary3  to  supply  the  designation.     For  this  purpose  a 
subsequent  publication  by  the  defendant,  in  which  the  plaintiff's 
name  is  mentioned,  may  be  shown.4 

12.  Circulation.'] — Production  and  proof  of  one  copy  of  a 
publication  is  not  necessarily  evidence  that  others  were  circu- 
lated.5   But  plaintiff  may  prove  the  circulation 6  or  degree  of 
notoriety  given  to  defendant's  print.7     The  fact  of  circulation  of 
the  report  may  be  proved  by  producing  a  writing,  or  a  publication 
of  it  made  by  a  third  person,  provided  there  is  evidence  compe- 
tent against  defendant  to  connect  him  with  it ;  otherwise  not.8 

13.  Falsity.] — If  defendant  relies  on  justification,   plaintiff 
may  show  all  the  circumstances  of  the  transaction  charged,  rele- 
vant to  the  question  of  his  innocence  ; 9  including  his  own  declara- 
tions made  as  part  of  the  res  gestce.™    The  record  of  plaintiff's 
acquittal  on  a  criminal  prosecution  for  the  same  charge  is  not 
competent  against  defendant,  if  he  was  not  privy  to  the  prosecu- 
tion.11   

ing,  unless  the  iury  find  that  defendant  intended  them  to  be  so  understood.  Compare 
Towns.  650,  §  384;  note  in  3  Ahb.  New  Gas.  233;  Smith  v.  Mile?,  15  Vt.  245,  249, 
REDFIELD,  J.  Contra,  Pow.  Ev.  100 ;  Duke  of  Brunswick  v.  Harmer,  3  Carr.  <fe  K.  10; 
Weed  v.  Bibbins,  32  Barb.  315,  and  cases  cited. 

1  See,  fir  instance,  Wilbur  v.  Ostrom,  1  Abb.  Pr.  N.  S.  275  ;  Case  v.  Buckley,  15 
Wend.  327  :  Alexander  v.  Alexander,  9  Id.  141. 

5  Mix  v.  Woodward,  12  Conn.  262,  287;    Parker  v.  Raymond,  3  Abb.  Pr.  N.  S. 
343;  N.  Y.  Code  Civ.  Pro.  §  535. 

3  Id. ;  Miller  v.  Maxwell,  16  Wend.  9.     Whether  this  may  be  done  by  the  testi- 
mony of  those  to  whose  knowledge  it  came,  that  they  at  the  time  understood  defend- 
ant to  be  meant,  is  disputed.     For  the  negative,  see  Gibson  v.  Williams,  4  Wend.  320; 
Van  Vechten  v.  Hopkins,  5  Johns.  211,  s.  c.  4  Am.  Dec.  339,  and  n. ;    Maynard  v. 
Beardsley,  7  Wend.  560.     For  the  affirmative,  see  Russell  v.  Kelly,  44  Cal.  641,  s.  c. 
13  Am.  K.  109;    2  Whart.  Ev.   §975.      Compare  paragraph  10,  note.     Where  tho 
publication  was  a  picture  proved  by  secondary  evidence,  the  declarations  of  specta- 
tors made  wl.ile  looking  at  it,  were  held  admissible  to  show  whose  portrait  it  was, 
Du  Bost  v.  Beresford,  2  Camp.  611. 

4  Russell  v.  Kelly,  44  Cal.  641,  e.  c.  13  Am.  R.  169. 
B  Watts  v.  Fraser,  7  Ad.  <fe  E.  223. 

6  Fry  v.  Bennett,  28  N.  Y.  324,  affi'g  3  Bosw.  200.     And  nn  article  in  defendant's 
paper  stating  its  average  circulation,  is  competent  against  him.    Fry  v.  Bennett,  1  Abb. 
Pr.  289,  s.  c.  4  Duer,  247,  661. 

1  Rice  v.  Withers,  9  Wend.  188. 

8  Schwartz  v.  Thomas,  1  Am.  Dec.  479,  s.  c.  2  Wash.  167;  Robertson  v.  Bennett, 
JA  Super.  Ct.  (J.  <fe  S.)  66,  71. 

9  JSee  Palmer  v.  Haight,  2  Barb.  210. 

10  Gandy  v.  Humphries.  35  Ala.  C17 ;  2  Whart.  Ev.  §  1102. 

11  Corbley  v.  Wilson,  71  111  209,  s.  c.  22  Am.  R.  98. 


666  ACTIONS  FOR  SLANDER  OR  LIBEL.^ 

14.  Malice^] — The  difference  between  what  is  called  express 
or  actual  malice,  and  implied  malice,  is  only  a  distinction  of  evi- 
dence. "  Express  malice  "  is  malice  shown  by  some  affirmative 
proof  beyond  that  afforded  bv  the  falsity  of  defamatory  words  ; 
"  implied  malice "  is  that  which  is  naturally  inferred  as  a  pre- 
sumption of  fact  drawn  by  the  law  from  the  proof  of  the  falsity 
of  defamatory  words  uttered  without  privilege.1  Where  there  is 
no  privilege,  this  presumption  conclusively  dispenses  with  the 
necessity  of  extrinsic  evidence  of  malice  to  sustain  the  action.2 
But  evidence  of  express  malice  is  competent,  whether  the  com- 
munication be  privileged  or  not.3  For  this  purpose  any  act  or 
language  of  the  defendant  (before  suit  brought),  tending  to  prove 
mance  on  his  part,  in  respect  to  the  particular  publication  com- 
plained of,  as  distinguished  from  general  ill  will,  is  competent.4 
The  fact  that  the  false  charges  were  published  as  true  of  defend- 
ant's own  knowledge,  is  evidence  of  malice.5  Animosity  by  or 
against  a  parent  or  guardian,  or  next  friend,  is  not  alone  compe- 
tent to  show  malice  by  or  against  the-  child  or  ward.6 

To  show  malice  evidence  is  competent 7  that  defendant  repeat- 
ed substantially  the  same  charge,  to  any  person  8  and  at  any  time 
before  suit  brought,  even  though  statute  barred  by  the  lapse  of 
time  ; 9  but  not  evidence  of  actionable  words,10  not  statute  barred,11 
imputing  a  substantially  different  charge  w  (unless  they  BO  refer 
to  the  charge  in  suit  as  to  express  direct  evidence  of  the  meaning 
and  malice  of  defendant  in  making  it);13  nor  of  any  words  after 
suit  brought.14  A  charge  proved  under  this  rule  is  not  available 


1  Hnson  v.  Dale,  19  Mich.  17,  s.  c.  2  Am.  R.  66 ;  Viele  v.  Gray,  10  Abb.  Pr.  1,  8. 
c.  18  How.  Pr.  650. 

8  King  v.  Root,  4  "Wend.  113 ;  Klinck  v.  Colby,  46  N.  Y.  427,  431 ;  White  v. 
Nichols,  3  How.  U.  S.  266 ;  Fry  v.  Bennett,  5  Sandf.  54,  s.  c.  9  N.  Y.  Leg.  Obs.  330. 
Malice  in  publishing  a  newspaper  report  of  judicial,  legislative,  or  other  official  pro- 
ceedings, is  in  no  case  implied  from  the  fact  of  publication.  N.  Y.  L.  1854,  p.  314, 
c.  180,  §1. 

3  Fry  v.  Bennett,  28  N.  Y.  324. 

4  Id.;  Rose.  N.  P.  832;  Littlejohn  v.  Greeley,  13  Abb.  Pr.  41 ;  further  decisions, 
Id.  311,  B.  c.  22  How.  Pr.  345. 

*  Rose.  N.  P.  830. 

6  York  v.  Pease,  2  Gray,  282,  284.  So,  a  city  editor's  refusal  to  publish  a  retrac- 
tion is  not  evidence  of  malice  on'  the  part  of  the  proprietors.  Edsall  v.  Brooks,  2 
Robt.  414,  s.  c.  33  How.  Pr.  191. 

1  This  I  understand  to  be  the  present  rule  in  the  courts  of  New  York,  and  one  well 
sustained  by  the  object  of  all  the  rules  that  have  been  asserted  on  this  subject,  when 
wo  make  due  allowance  for  the  new  canons  of  pleading.  But  the  authorities  are  very 
conflicting,  the  line  of  decision  has  constantly  wavered,  and  well  considered  decisions 
may  be  found  to  the  contrary  of  almost  every  clause  in  the  rule  ptnted  in  the  text. 

8  Root  v.  Lowndes,  6  Hill,  519 ;  Bassell  v.  Elmore,  48  N.  Y.  561 ;  affi'g  65  Barb. 
627. 

9  Titus  v.  Sumner,  44  N.  Y.  266;  Distin  v.  Rose,  69  N.  Y.  }22,  124. 

10  Rundell  v.  Butler,  7  Barb.  260. 

11  Root  v.  Lowndes  (above). 

14  Howard  v.  Sexton,  4  N.  Y.  157,  161 ;  Titus  v.  Sumner,  44  Id.  2C6,  270;  Distin 
V.  Rose,  69  Id.  122,  124 ;  Taylor  v.  Kneeland,  1  Dougl.  (Mich.)  67,  76. 

13  Finnerty  v.  Tipper,  2  Camp.  72.     For  instance,  a  subsequent  publication  which 
identifies  plaintiff.     Mix  v.  Woodward,  12  Conn.  262,  287. 

14  Frazier  v.  McCloskey,  60  N.  Y.  337,  rev'g  2  Supm.  Ct.  (T.  &  C.)  266;  Distin  v. 


ACTIONS  FOB  SLANDER  OR  LIBEL.  667 

as  a  ground  of  recovery,  any  further  than,  by  showing  malice,  it 
enhances  exemplary  damages  for  the  publication  alleged.1 

Insulting  acts,  preceding  or  accompanying  a  defamatory  pub- 
lication, are  competent  on  the  question,  and  can  be  put  in  evidence 
of  motive.2  So  are  subsequent  insulting  acts  relating  to  the  same 
charge.3 

A  communication  of  the  defamation  to  a  third  person,  made 
by  the  hearer,  if  the  natural  and  probably  intended  consequence- 
of  defendant's  act,  is  competent  to  show  the  injury  ;  and  with  it 
the  damage  caused  by  it  may  be  shown.4 

An  answer  of  justification,  though  withdrawn,5  or  unsustained 
by  proof,  is  not  evidence  of  malice  unless  bad  faith  is  shown.6 

15.  Action  on  privileged  communication. ~\ — Where  the  com- 
munication, if  made  in  good  faith,  is  privileged,  the  burden  is  on 
plaintiff  to  show  express  malice,  that  is,  actual  wrongful  motive. 
To  carry  this  question  to  the  jury  it  is  not  enougli  that  the  rep- 
resentations are  consistent  with  malice  ; 7  the  evidence  must  raise 
a  probability  of  malice  ;  and  be  more  consistent  with  it  than  with 
the  non-existence  of  it.8  But  slight  evidence  is  sufficient.9  It  is 
not  necessary  to  prove  it  by  extrinsic  evidence.  It  may  be  in- 
ferred from  the  relation  of  the  parties,  the  circumstances  attend- 
ing the  publication,  and  even  from  the  terms  of  the  publication 
itself.10  It  cannot  be  inferred  from  its  mere  falsity,11  unless  there 
is  evidence  that  defendant  knew  it  to  be  false.12  Nor  is  it  neces- 
sarily inferred  from  severe  denunciation  in  the  words  ;13  nor  from 
circulating  to  obtain  privileged  signatures.14 

If  the  privileged  communication  was  a  charge  preferred  for 
official  action  of  a  judicial  nature,  before  any  municipal,  parochial, 

Rose,  69  N.  Y.  122,  124.  Contra,  Miller  v.  Kerr,  2  McCord  (S.  C.)  285,  s.  o.  13 
Am.  Dec.  722;  Johnson  v.  Brown,  67  Barb.  118;  1  Whart.  Ev.  44,  §  32. 

1  Williams  v.  Miner,  18  Conn.  464,  472,  and  cases  cited. 

9  1  Whart.  Ev.  44,  §  32;  Bond  v.  Douglas,  7  C.  &  P.  626  ;  Kean  v.  McLaughlin,  2 
S.  &  R,  469.  See  C.  v.  A.  B.  2  Weekly  Notes,  291. 

8  Tate  v.  Humphrey,  2  Campb.  73  n. ;  1  Whart.  Ev.  43,  §  32. 

4  Fowlea  v.  Bowen,  30  N.  Y.  20.     And  see  paragraphs  3  and  17. 

8  Wilson  v.  Robinson,  7  Q.  B.  (Ad.  <fe  E.  N.  S.)  68. 

6  Klinck  v.  Colby,  46  N.  Y.  427,  437  ;  69  Id.  127.     Otherwise  at  common  law. 

7  Hart  v.  Gumpach,  L.  R.  4  P.  C.  439,  460,  s.  o.  4  Moak's  Eng.  138,  156. 

8  Laughton  v.  Bishop  of  Sodor  and  Man,  L.  R.  4  P.  C.  495,  8.  c.  4  Moak's  Eng.  162, 
174,  nnd  cases  cited. 

9  Fowles  v.  Bowen,  30  N.  Y.  20. 

10  Gassett  v.  Gilbert,  6  Gray  (Mass.),  94,  98. 

11  Lewis  v.  Chapman,  16  N.  Y.  369,  rev'g  19  Barb.  252. 
15  Fowles  v.  Bowen,  30  N.  Y.  20. 

13  Klinck  v.  Colby,  46  N.  Y.  427.  Nor  from  the  act  of  sending  a  report  to  a  news- 
paper of  a  privileged  communication  elsewhere  delivered,  as  a  public  reply  made  in 
pood  faith  to  a  public  attack.  Laughton  v.  Bishop,  <fec.  L.  R.  4  C.  P.  495,  510,  s.  c.  4 
Moak's  Eng.  162,  175,  and  cases  cited.  If  there  were  other  evidence  of  malice,  it 
would  be  proper  to  submit  to  the  jury  the  question,  whether  somlina:  the  report  to 
the  papers  was  in  good  faith  or  malicious.  Id.  Nor  from  defendant's  advocate  ob- 
jecting at  the  trial  to  plaintiff  proving  facts  material  to  him ;  nor  from  endeavoring 
to  prove  plaintiff's  misconduct.  Id. 

f*  Vanderzee  v.  M'Gregor,  12  Wend.  545 ;  Streety  v.  Wood,  15  Barb.  105. 


668  ACTIONS  FOR  SLANDER  OR  LIBEL. 

professional  or  other  public  body,1  having  authority  to  act  upon 
the  application,8  plaintiff  must  show  want  of  probable  cause  as 
well  as  malice.8 

16.  Slander  of  title. ~\ — To  sustain  an  action  for  slander  of  title, 
whether  of  real 4  or  personal 5  property,  express  malice  must  be 
shown.     This  is  not  proved  by  the  falsity  of  injurious  state- 
ments ; 6  but  there  need  not  be  direct  proof  of  intention  to  injure. 
The  intention  may  be  inferred  by  the  jury,  from  false  statements, 
exceeding  the  limits  of  fair  and  reasonable  criticism,  and  reck- 
lessly uttered  in  disregard  of  the  rights  of  those  who  might  be 
affected  by  them.7    If  the  words  were  used  in  the  course  of  assert- 
ing defendant's  claim  of  title,  it  is  competent  for  him  to  show 
advice  of  counsel,  as  in  case  of  an  action  for  malicious  prosecu- 
tion.8 

Special  damage  must  be  proved,9  and  must  be  alleged  to  be 
admissible.10 

17.  Damages.'] — A  witness  cannot  be  asked  whether  plaintiff 
has  not  sustained  a  general  loss  of  reputation  and  suffered  mate- 
rial injury  in  credit,  in  consequence  or  the  words  complained  of.11 
Injury  to  feelings  is  a  proper  subject  of  consideration  if  other 
damages  have  been  shown.1^    Alone  it  will  not  sustain  an  action.13 

Actual  damage  need  not  be  shown  to  sustain  a  verdict  for  ex- 
emplary damages.14 

In  aggravation  of  actual  damages,  plaintiff  may  give  in  evi- 
dence his  own  rank  and  condition  in  life,  if  in  issue  ;15  and  for 
actual  or  exemplary  damages,  defendant's  wealth  and  standing.16 
An  unsuccessful  plea  of  justification  is  not  competent  in  aggrava- 
tion, unless  shown  to  have  been  made  in  bad  faith  ; "  nor  is  an  un- 


1  Barrows  v.  Bell,  7  Gray,  301,  313 ;  Remington  v.  Congdon,  2  Pick.  310,  s.  o.  13 
Am.  Dec.  431,  and  note. 

*  Hosmer  v.  Lov eland,  19  Barb.  111. 

8  Howard  v.  Thompson,  21  Wend.  319 ;  Viele  v.  Gray,  10  Abb.  Pr.  1, 11,  s.  c.  18 
How.  Pr.  650  ;  Streety  v.  Wood,  15  Barb.  106. 

4  Kendall  v.  Stone,  5  N.  Y.  14. 

8  Like  v.  McKinstry,  3  Abb.  Ct.  App.  Dec.  62,  s.  c.  4  Keyes,  397,  affi'g  41  Barb. 
186. 

•  Like  v.  McKinstry  (above). 

1  Gott  v.  Pulsifer,  122  Mass.  235,  8.  o.  23  Am.  R.  322,  825. 

8  See  Like  v.  McKinstry  (above) ;  Bailey  v.  Dean,  6  Barb.  297. 

9  Kendall  v.  Stone,  6  N.  Y.  14,  rev'g  2  Sandf.  269 ;  Bailey  v.  Dean,  6  Barb.  297. 

10  Gott  v.  Pulsifer,  122  Mass.  235,  s.  c.  23  Am.  R.  322. 

11  Herrick  v.  Lapham,  10  Johns.  281.     And  see  p.  655  of  this  vol. 

12  Hamilton  v.  Eno.  16  Hun,  599,  601. 

13  Samuels  v.  Evening  Mail  As-ociation,  6  Hun,  5. 

14  Fry  v.  Bennett,  9  Abb.  Pr.  45,  affi'd  in  28  N.  Y.  324. 

15  Lamed  v.  Buffinton,  3  Mass.  646,  s.  c.  3  Am.  Dec.  185.     And  see  Eastland  v. 
Caidwell,  2  Bibb  (Ky.),  21,  s.  c.  4  Am.  Dec.  668. 

16  Hayner  v.  Cowden,  27  Ohio  St.  292,  s.  c.  22  Am.  R.  303  ;  Bennett  v.  Hyde,  6 
Conn.  24,  27;  Lewis  v.  Chapman,  19  Barb.  252,  rev'd,  on  other  grounds,  in  16  N.  Y. 
869.    Whether  i  he  evidence  of  wealth,  Ac.,  is  to  be  directed  to  the  time  of  the  wrong 
or  the  time  of  the  trial  may,  perhaps,  depend  on  whether  the  true  ground  of  allowing 
Buch  evidence  is  punilory,  or  because  of  the  influence  supposed  to  attach  to  the  utter- 
ance.    See  Bennett  v.  Hyde,  6  Conn.  24,  28. 

11  Distin  v.  Rose,  69  N.  Y.  122,  affi'g  7  Hun,  83.  Compare  Fero  v.  Ruscoe,  4  N. 
Y.  162. 


ACTIONS  FOR  SLANDER  OR  LIBEL.  669 

successful  effort  to  procure  testimony  in    justification,  unless 
shown  to  have  been  done  in  a  manner  aggravating  the  wrong.1 

Special  damage  should  be  alleged  in  order  to  be  proved  ;2  and  " 
must  be  proved  in  case  the  words  are  not  actionable  per  se?  The 
effect  of  the  defamation  on  the  conduct  of  a  third  person,  maybe 
proved  by  his  own  testimony,4  but  not  by  evidence  of  his  declar- 
ations of  his  reason  for  an  act,  though  made  at  the  time.5  The 
report  causing  special  damage,  must  be  connected  with  defendant 
by  other  evidence  than  its  mere  identity  in  substance  with  that 
which  he  published.6 

18.  Defense  :  Explaining  the  words.'] — Defendant  is  entitled 
to  have  the  whole  of  the  alleged  conversation  or  article  put  in  ev- 
idence, and  any  document  referred  to  in  it.7  If  the  article  is  in  a 
newspaper,  he  is  entitled  to  have  read  (as  part  of  plaintiff's  case) 
another  part  of  the  same  newspaper,  referred  to  in  the  article.8 
So  defendant  may  show  that,  after  uttering  the  words,  he  retract- 
ed or  explained  tnem  in  the  same  conversation,  so  as  not  to  amount 
to  slander,  or  that  he  adopted  explanations  made  by  another  per- 
son, having  the  same  effect.9  If  an  apparent  slander  expressly 
refers  to  circumstances  which  show  that  no  charge  of  crime  was 
intended,  defendant  may  prove  those  facts  as  giving  the  true  im- 
port of  the  words  as  they  were  or  ought  to  have  been  understood 
by  the  hearers ; 10  but  if  the  words  were  unequivocal,  and  intended 
and  received  as  a  charge  of  crime,  evidence  of  facts  which  deprive 
the  charge  of  that  character,  but  which  do  not  appear  to  have 
been  known  to  the  hearers,  is  not  competent,11  A  previous  arti- 
cle of  plaintiff's,  to  which  the  matter  complained  of  was  an  an- 

1  Ormsby  v.  Douglass,  37  N.  Y.  477. 

s  Backus  v.  Richardson,  5  Johns.  476 ;  Tobias  v.  Harland,  4  Wend.  637 ;  Rose. 
N.  P.  832. 

8  Brooker  v.  Coffin,  6  Johns.  188 ;  Miller  v.  David,  L.  R.  9  C.  P.  1 18,  8.  c.  43  L.  J. 
C.  P.  84  ;  Shipman  v.  Burrows,  1  Hall,  399  ;  Hallock  v.  Miller,  2  r'arb.  630.  And  in 
that  case  must  be  shown  to  have  occurred  before  suit  brought.  Keenholts  v.  Beck- 
er, 3  Den.  346. 

*  Law  v.  Scott,  5  Harr.  A  J.  (Md.)  438. 

«  Ashley  v.  Harrison,  1  Esp.  48  ;  Tilk  v.  Parsons,  2  C.  <fc  P.  201  (BEST,  C.  J.). 
Whether  loss  of  custom  may  be  proved  by  general  evidence  of  a  falling  off,  without 
proof  of  loss  of  particular  customers,  compare  Backus  v.  Richardson,  5  Johns.  476; 
Hartley  v.  Herring,  8  T.  R.  130 ;  Hallock  v.  Miller,  2  Barb.  630 ;  Riding  v.  Smith,  L. 
R.  1  Exch.  Div.  91,  95,  B.  c.  16  Moak's  Eng.  647. 

6  Sewall  v.  Catlin,  3  Wend.  291 ;  1  Seclgw.  on  D.  7th  ed.  148.  See  Miller  v. 
David,  L.  R.  9  C.  P.  118,  8.  o.  43  L.  J.  C.  P.  84. 

1  Folk.  Stark.  720  [548],  §  725 ;  Morehead  v.  Jones,  2  B.  Monr.  210. 

8  Folk.  Stark.  720  [648],  §  725.  It  is  a  rule  of  law  essential  to  the  liberty  of  the 
press,  that  in  all  actions  for  libel,  every  part  of  the  paper  must  be  read  in  order  to 
collect  its  meaning.  BEST,  C.  J.,  Yrisarri  v.  Clement,  3  Bing.  432, 440. 

•  Trabue  v.  Mays,  8  Dana,  138. 

i°  Williams  v.  Miner,  18  Conn.  464,  473  ;  Smith  v.  Miles,  16  Vt.  245,  RTOFUXD,  J. 
Compare  Dorland  v.  Patterson,  23  Wend.  422.  But  he  must  show  that  the  facts  could 
not  have  amounted  to  a  crime.  It  is  not  enough  to  show  a  doubt  Laine  v.  Wells, 
7  Wend.  175 ;  Case  v.  Buckley,  16  Id.  327. 

"  Williams  v.  Miner  (above);  Dempsey  v.  Paige,  4  E.  D.  Smith,  218;  Van  Akin 
V.  Caler,  48  Barb.  58 ;  Stone  v.  Clark,  21  Pick,  61,  64, 


670  ACTIONS  FOR  SLANDER  OR  LIBEL. 

ewer,  may  be  put  in  evidence  as  explanatory  of  the  subject,  occa. 
sion,  and  intent  of  defendant's  publication,  although  it  be  not 
legally  a  provocation  or  justification.1 

19.  Privileged  communication.'] — The  relations  between  the 
parties  to  the  communication  may  be  shown  by  testimony  or  by 
their  written  contract,  as  most  appropriate,  without  calling  them 
as  witnesses.2    The  manner  as  well  as  the  occasion  of  the  publica- 
tion is  admissible.8    Where  the  privilege  depends  on  the  fairness 
of  a  report,4  or  relevancy  of  the  communication  to  the  proceed- 
ing,5 the  burden  to  show  these  facts  is  on  defendant.     If  belief  is 
relevant,  defendant  may  testify  to  what  was  his  belief  at  the 
time",6  and  to  the  communication  previously  made  to  him,7  or  to 
the  conduct  of  plaintiff  known  to  him,8  which  induced  belief. 

20.  Justification.'] — Truth  is  a  complete  bar,9  but  to  be  ad- 
missible as  a  bar,  it  must  be  pleaded  in  some  form,10  so  that  plaint- 
iff may  have  notice  of  what  he  has  to  meet ;  if  not  pleaded,  truth 
is  admissible,  if  at  all,  only  in  mitigation,  as  repelling  the  infer- 
ence of  malice.11 

If  plaintiff  has  proved  only  a  part  of  the  words  alleged,  de- 
fendant may,  if  he  choose,12  confine  his  justification  to  such  part,13 
but  he  may  read  the  part  abandoned  by  plaintiff  to  show  the 
meaning  of  the  part  relied  on.14 

The  justification  must  establish  the  substance  of  the  charge 
justified,15  though  it  need  not  be  identical  in  letter  and 


1  Hotchkiss  v.  Lathrop,  1  Johns.  286. 
s  See  Ormeby  v.  Douglass,  37  N.  Y.  477. 
»  Folk.  Stark.  684  [522],  §  686. 
4  1  Whart.  Ev.  330,  §  369. 

B  Marsh  v.  Ellsworth,  36  How.  Pr.  632,  s.  c.  1  Sweeny,  62.  And  see  Marsh  v. 
Ellsworth,  50  N.  Y.  309,  nffi'g  2  Sweeny,  589;  Spooner  v.  Keeler,  61  N.  Y.  621 

6  See  cases  on  page  620  of  this  vol. 

7  Lawlcr  v.  Earle,  6  Allen,  22. 

8  Bradley  v.  Heath,  12  Pick.  (Mass.)  163. 

'  George  v.  Jennings,  4  Hun,  66.     Otherwise,  at  common  law,  except  in  case  of 

Siblic  officer  or  candidate.     Commonwealth  v.  Morris,  1  Va.  Cas.  175,  s.  c.  5  Am. 
ec.  515. 

10  Huson  v.  Dale,  19  Mich.  17,  s.  c.  2  Am.  R.  66;  N.  Y.  Code  Civ.  Pro.  §  636 ; 
Baker  v.  Wilkins,  3  Barb.  220. 

11  Huson  v.  Dale  (above).     For  the  conflicting  views  on  this  question,  see  Treat  v. 
Browning,  4  Conn.  408,  s.  c.  10  Am.  Dec.  156,  and  cas.  cit. ;  Alderman  v.  French,  1 
Pick.  1,  s.  c.  11  Am.  Dec.  114,  127,  and  n. 

1J  According  to  Palmer  v.  Haight,  2  Barb.  210,  he  must.  If  plaintiff  has  proved 
other  words  not  alleged,  defendant  may  justify  those.  Warne  v.  Chadwell,  2  Stark. 
467. 

13  Stow  v.  Converse,  4  Conn.  ]  7,  28. 

14  Gould  v.  We,-d,  12  Wend.  12.     See  paragraphs  9  and  10. 

15  Whether  proof  beyond  a  reasonable  doubt  is  required  to  justify  a  charge  of 
crime  is  disputed :    see  cases  collected  on  p.  495  of  this  vol.     Also  in  the  affirmative, 
Woodbeck  v.  KeUrr,  6  Cow.  118;  Chalmers  v.  Shackell,  6  Carr.  &  P.  475;  Dwinella 
V.  Aikin,  2  Ty.  Vt.  75  ;  MX  v.  Woodward,  12  Conn.  262,  288  ;  Lanter  v.  M'Ewen, 
8  Blackf.  find.)  495 ;  Tucker  v.  Call,  45  Ind.  31.     The  just  rule  in  cases  of  justifica- 
tion of  ordinary  charges  of  crime  is  that  thirdly  stated  on  p.  495.     Greater  cogency 
of  proof  is  requisite  to  justify  punishment  than  to  justify  accusation,  unless  the  accu- 


ACTIONS  FOR  SLANDER  OR  LIBEL.  671 

form.1  The  justification  must  be  as  broad  as  the  charge, 
and  if  a  statement  of  facts  of  aggravation2  as  distinguished 
from  matter  of  opinion,  is  part  of  the  charge,3  the  justification 
must  include  them.  If  a  slander  charged  that  an  act  was 
done  in  another  jurisdiction,  which  is  not  a  crime  at  common 
law,  defendant  should  be  prepared  with  evidence  of  the  laws 
of  the  place  where  it  was  done.* 

The  record  of  plaintiffs  conviction  for  the  crime  charged, 
if  not  appearing  to  be  based  at  all  on  defendant's  testimony,  is 
presumptive  evidence  in  support  of  a  justification,5  but  not  con- 
clusive. Evidence  of  plaintiffs  declarations  tending  to  show  his 
disposition  to  an  offense  of  a  particular  kind  is  not  competent 
to  show  that  a  specific  offense  of  that  kind  was  committed. 

In  justifying  a  charge  of  perjury,  the  proceedings,  if  matter 
of  record,  must  be  proved  by  producing  the  record.8  A  variance 
in  the  date  is  not  material.9  The  fact  that  the  witness  testified  is 
prima  facie  evidence  that  he  was  sworn.10  Materiality  of  the  tes- 
timony may  be  presumed  where  the  charge  implied  it  and  was  so 
understood.11  •  The  allegation  of  knowledge  of  falsity  is  material.18 

To  justify  a  charge  merely  of  bad  repute,  it  is  not  necessary 
to  prove  the  existence  of  grounds  for  such  repute.13 

21.  Former  adjudication.'] — A  judgment  in  malicious  prose- 
cution is  admissible  as  a  bar  to  an  action  for  defamation  in  the 


sation  was  made  with  actual  malice,  or  was  accompanied  with  a  declaration  of  hav- 
ing proof.  But,  in  thos3  courts  where  proof  beyond  reasonable  doubt  is  required, 
evidence  falling  short  of  that  will  avail  in  mitigation. 

I  Andrews  v.  Vanduzer,  11  Johns.  38  ;  Stow  v.  Converse,  4  Conn.  17,  33.     Thus, 
under  a  charge  of  stealing  a  thing  specified,  evidence  of  stealing  an  entirely  differ- 
ent article  is  not  admissible.     Eaatland  v.  Caldwell,  2  Bibb,  21.     But  a  charge  of 
stealing  "  hogs"  is  justified  by  proof  of  stealing  a  hog,  for  here  would  be  no  surprise. 
Barr  v.  Gaines,  3  Dana,  258.     Adultery  with  A.  cannot  be  proved  under  justifica- 
tion alleging  adultery  with  B.  (Mathews  v.  Davis,  4  Bibb,  173);  and  illicit  inter- 
course with  a  lover  before  marriage  cannot  be  proved  tinder  justification  of  charge 
of  being  a  "whore."     Sheehey  v.  Cokley,  43  Iowa,  183,  s.  c.  22  Am.  R.  236.     So 
evidence  of  an  attempt  to  commit  a  crime  is  not  competent  in  proof  of  justification 
alleging  the  committing  of  the  crime.     Chapman  v.  Ordway,  5  Allen,  593 ;  Fero  v. 
Ruscoe,  4  N.  Y.  162. 

1  Ilelsham  v.  Blackwood,  11  C.  B.  111. 
8  See  Baker  v.  Wi'.kins,  3  Barb.  220. 

4  Bundy  v.  Hart,  46  Mo.  460,  s.  c.  2  Am.  R.  625.     Compare  Langdon  v.  Young, 
83  Vt.  136 ;  Van  Anken  v.  Westfall,  14  Johns.  233. 
6  Maybee  v.  Avery,  18  Johns.  352. 
•Id. 
1  Gillis  v.  Peck,  20  Conn.  228  ;  and  see  Barthelemy  y.  People,  2  Hill,  248. 

8  Dwinells  v.  Aiken,  2  Tyler  (Vt.),  75.     As  to  the  mode  of  proof,  see  chapter 
XXIX.    If  before  arbitrators,  the  submission  is  the  best  evidence  of  the  jurisdiction 
of  tho  arbitrators.     Bullock  v.  Koon,  9  Cow.  30. 

9  Brooks  v.  Bemiss,  8  Johns.  455. 
10  Cass  v.  Anderson,  S3  Vt.  182. 

II  Butterfield  v.  Buffum,  9  N.  II.  156,  163. 

19  Spooncr  v.  Keelrr,  51  N.  Y.  527.     As  to  proof  of  the  corrupt  intent,  BOO  M'Kin- 
ly  V.  Rub,  20  Johns.  851 ;  Hopkins  v.  Smith,  3  Barb.  599. 

13  Cooper  v.  Greeley,  1  Den,  347 ;  compare  Stone  v.  Cooper,  2  Id.  293. 


672  ACTIONS  FOR  SLANDER  OR  LIBEL. 

same  making  of  the  charge,1  but  not  to  an  action  for  repeating  it 
after  the  termination  of  the  prosecution.8 

22.  Mitigation.'] — Under  the  new  procedure,  defendant  may 
prove,  in  mitigation,  facts  which  tend  to  disprove  malice,  although 
they  do  tend  to  prove  the  truth  of  the  charge,  and  although  he 
has  not  alleged  the  truth  of  the  charge  in  his  answer.3  Circum- 
stances in  mitigation  must  be  pleaded  in  order  to  be  admissible.4 
Facts  and  circumstances  which  induced  defendant  to  suppose  the 
charge  true  when  he  made  it,  he  may  prove  for  the  purpose  of 
showing  the  absence  of  actual  malice,  provided  they  were  actual- 
ly known  to  him  when  he  made  the  charge,5  otherwise  not.6  The 
terms  and  conditions  on  which  defendant  directed  the  libellous 
matter  to  be  published,  are  admissible  in  evidence  on  his  behalf, 
as  part  of  the  res  gestce,  showing  his  motives.7  But  evidence  of 
confidential  publication,  though  thus  admissible,  in  mitigation, 
does  not  repel  the  legal  presumption  of  malice.8 

If  the  defamation  only  purported  to  be  a  publication  of 
rumors,  defendant  may  show  in  mitigation  that  such  rumors  really 
existed.9  It  is  competent  to  show  in  mitigation,  that  the  article 
complained  of  was  copied,  and  published  as  copied,  from  another 


1  Sheldon  v.  Carpenter,  4  N.  Y.  579. 

8  Rockwell  v.  Brown,  36  N.  Y.  207.     See,  also,  page  652  of  this  vol. 

8  Bush  v.  Prosser,  11  N.  Y.  347,  rev'g  13  Barb.  221 ;  Bisbey  v.  Shaw,  12  N.  Y. 
67.  This  is  the  New  York  Rule.  N.  Y.  Code  Civ.  Pro.  §  535.  In  some  other  juris- 
dictions the  rule  formerly  contended  for  by  part  of  the  authorities  is  still  followed, 
•viz.,  that  where  a  defendant  does  not  justify  he  may  mitigate  damages  in  two  ways 
only ;  first,  by  showing  the  general  bad  character  of  the  plaintiff;  and,  second,  by 
showing  any  circumstances  which  tend  to  disprove  malice,  but  do  not  tend  to  prove 
the  truth  of  the  charge.  Sheahan  v.  Collins,  20  111.  3^5,  328. 

4  Willover  v.  Hill,  72  N.  Y.  36,  38.     Compare  Hotchkiss  v.  Porter,  30  Conn.  414, 
420. 

5  Even  though  not  legal  evidence  of  its  truth.     Oilman  v.  Lowell,  8  Wend.  573. 

6  King  v.  Root,  4  Wend.  113,  affi'g  7  Cow.  613.    Notoriety  can  raise  a  presump- 
tion that  he  knew  them.     Per  LEARNED,  P.  J.     Hatfield  v.  Lasher,  17  Hun,  23,  27. 

1  Taylor  v.  Church,  8  N.  Y.  (4  Seld.)  452.  So  of  his  declarations  to  bystanders 
accompanying  an  act  of  defamation.  Mezzara's  Case,  2  City  H.  Rec.  113. 

8  Mason  v.  Mason,  4  N.  H.  110. 

•  Skinner  ads.  Powers,  1  "Wend.  451 ;  Richards  v.  Richards,  2  M.  <fr  Rob.  657. 
But  this  does  not  repel  the  legal  presumption  of  malice.  Mason  v.  Mason,  4  N.  H. 
110. 

For  a  convenient  clue  to  the  conflicting  authorities  on  the  admissibility  of  evi- 
dence of  the  previous  existence  of  common  report  to  the  same  effect  as  oral  slander, 
see,  in  the  Negative,  Mapes  v.  Weeks,  4  Wend.  659;  Graham  v.  Stone,  6  How.  Pr. 
15 ;  Brown  v.  Orvis,  Id.  376;  Anthony  v.  Stephens,  1  Mo.  254,  s.  c.  13  Am.  Dec.  497, 
and  see  note ;  Pease  v.  Shippen,  80  Penn.  St.  513,  s.  c.  21  Am.  R.  1 16,  and  cas.  cit. ; 
Affirmative,  Case  v.  Marks,  20  Conn.  248,  251 ;  Cook  v.  Barkley,  1  Pennington  (N.  J.), 
169,  s.  c.  2  Am.  Dec.  343;  Calloway  v.  Middleton,  2  A.  K.  Marsh  (Ky.),  372. 

The  admissibility  of  such  evidence  under  these  rulings,  will  often  depend  on 
whether  it  is  offered  to  repel  the  legal  implication  of  malice,  or  to  rebut  plaintiffs 
evidence  of  actual  malice ;  whether  it  is  offered  in  connection  with  other  evidence 
tending  to  show  that  defendant  in  good  faith  published  that  which,  upon  reasonable 
grounds,  he  believed  to  be  true;  or  whether  it  is  offered  on  the  issue  of  character; 
and  whether  the  fact  was  specially  pleaded,  or  the  evidence  offered  under  the  general 
issue.  In  any  case  the  evidence  should  show  that  this  circulation  was  before  de- 
fendant commenced  the  wrong.  See  Bailey  v.  Hyde,  3  Conn.  463,  466;  Thompson  v. 
Nye,  16  Q.  B.  176. 


ACTIONS  FOR  SLANDER  OR  LIBEL.  673 

paper,1  or  that  defendant,  before  publication,  had  seen  substantial- 
ly the  same  matter  in  other  newspapers,  he  believing  it  to  be  true ; * 
but  not  another  publication  which  did  not  influence  his,8  nor 
that  plaintiff  had  recovered  against  another.4 

Plaintiff's  general  character  in  the  respect  in  which  it  was  im- 
pugned by  the  charge,  may  be  sjiown  in  mitigation  of  damages.5 
But  if  the  words  are  actionable  per  se,  and  there  is  no  attempt  to 
prove  special  damage,  it  is  not  competent  to  show  that  plaintiff's 
reputation  was  not  injured.6 

When  good  faith  is  material,  defendant  may  testify  in  his  own 
behalf,  to  his  knowledge  or  belief  at  the  time,7  and  his  intent  in 
making  the  communication.8 

The  fact  that  slanderous  words  were  spoken  in  the  heat  of 
passion,  which  was  provoked  by  plaintiff,  may  be  shown  in  mitiga- 
tion,9 but  not  in  bar.10  Neither  the  fact  of  defendant's  enmity  to 
plaintiff,11  nor  words  and  acts  between  one  party  and  the  father 
or  guardian  of  the  other,  are  alone  competent  evidence  of  provo- 
cation.12 

A  retraction,  as  distinguished  from  an  attempt  merely  to  con- 
strue in  a  different  sense  irom  that  fairly  imputable,  is  admissible 
in  mitigation.13 

23.  Plaintiff's  character^ — Defendant  (although  he  may  have 
pleaded14  and  given  evidence  in15  justification)  may  show  in  miti- 
gation,16 that  at  and  before  the  time  of  the  defamation,17  plaintiffs* 


1  McDonaM  v.  Woodruff,  2  Dill.  C.  Ct.  244 ;  and  the  other  paper  will  be  admis- 
sible. Mullett  v.  Ilulton,  4  Esp.  248. 

4  Hewett  v.  Pioneer-Press  Company,  23  Minn.  178,  s.  c.  23  Am.  R.  680.  Compare 
Coloman  v.  ^outhwick,  9  Johns.  45,  s.  c.  6  Am.  Dec.  253. 

*  Saundurs  v.  M.lls,  6  Bing.  213.     Compare  Talbutt  v.  Clark,  2  M.  <fc  Rob.  312. 

4  Creevy  v.  Carr,  7.  Carr.  cfe  P.  64. 

5  Anthony  v.  Stephens,  1  Mo.  254,  8.  c.  13  Am.  Dec.  497,  and  n. 

•  Titus  v.  Sumner,  44  N.  Y.  266. 

1  Goodman  v.  Stroheim,  36  Super.  Ct.  (4  J.  <fc  S.)  216,  s.  P.  30  N.  Y.  625.  Contra, 
Lawyer  v.  Loomis,  3  Supra,  Ct.  (T.  <fe  C.)  393 ;  (see  3  Id.  412). 

8  Compare  pages  618,  620,  655  of  this  vol. 

9  Jauch  v.  Jauch,  CO  Ind.  135,  s.  c.  19  Am.  R.  699;  Sheffill  v.  Van  Deusen,    15 
Gray,  485.     For  which  see  page  650  of  this  vol.     For  provocation  of  libel,  see  Child 
T.   Homer,  13  Pick.  503;  Laughton  v.  Bishop  of  Sodor,  <fec.  L.  R.  4  P.  C.  495,  a  c. 
4  Moak's  En?.  162;  Finnerty  v.  Tipper,  2  Camp.  72;  Maynard  v.  Beardsley,  7 
Wend.  560,  affi'g  4  Id.  336. 

10  Mouskr  v.  Harding,  33  Ind.  176,  s.  c.  5  Am.  R.  195.     The  limits  of  evidence  of 
provocation  are  the  same  as  in  case  of  assault. 

11  Craig  v.  Catlet,  5  Dana,  323. 

11  Underbill  v.  Taylor,  2  Barb.  348. 
18  Ilotchkiss  v.  Oliphant,  2  mil,  510. 

14  N.  Y.  Code  Civ.  Pro.  §  535. 

15  Id. ;  Hamer  v.  McFarlin,  4  Den.  509. 

16  Whether  this  may  be  done  unless  bad  character  is  pleaded,  see  negative,   1 
Whart.  Ev.  67,  §  63 ;   Willover  v.  Hill,  72  N.  Y.  36,  38 ;  affirmative,  Anon.  8  How. 
Pr.  434;  Parkhurst  v.  Ketchum,  6  Allen,  406. 

The  value,  with  the  jury,  of  evidence  of  plaintiff's  bad  character  is  generally  in 
its  tending  (with  evidence  indicating  defendant's  good  faith),  to  show  the  absence  of 
malice,  rather  than  in  tending  to  show  that  plaintiff  has  not  been  injured. 

11  Hamer  v.  McFarlin  (above). 

43 


674  ACTIONS  FOR  SLANDER  OR  LIBEL. 

character  was  generally  bad,1  or  was  bad  in  respect  to  the  general 
nature  and  subject-matter  of  the  offense  charged.2 

24.  Mode    of  proving  character.] — The    legal    meaning  of 
"character,"  as  used  in  the  law  of  defamation,  is  reputation.     It 
is  proved  by  a  witness,  who  testifies  (1)  to  a  residence  in  the  com- 
munity or  neighborhood  of  plaintiff,  such  as  to  satisfy  the  court 
that  he  has  reasonable  means  of  knowing  plaintiffs  character; 
(2)  that  ho  knows  the  general  character  01  the  plaintiff,3  or  that  he 
knows  his  character  in  respect  to  the  subject-matter  involved; 
and  (3)  that  such  character  is  bad. 

For  this  purpose  neither  particular  reports,4  nor  the  particu- 
lars giving  rise  to  bad  reputation, — such  as  a  specific  offense,6  or 
consorting  with  criminals,6 — are  admissible  except  as  brought  out 
by  cross-examination  as  showing  foundation  of  bad  character.7 
Bad  character,  subsequent  to  the  defamation,  is  inadmissible.8 

Character  many  years 9  before  the  time  in  question  is  not  irrel- 
evant, for  shown  once  to  exist  it  is  presumed  to  continue  ;10  but 
where  the  period  is  very  remote,  it  is  in  the  discretion  of  the 
court  to  require  some  connection  to  be  shown  between  the  pres- 
ent and  former  character.11  The  mode  of  proving  business  credit 
has  already  been  stated.12 

25.  Rebuttal.]  — If  defendant  has  given  evidence  of  plaintiff's 
bad  character,13  plaintiff  may  rebut  with  contrary  evidence.14    Evi- 


I  Hamer  v.  McFarlin,  4  Den.  509;  Paddock  v.  Salisbury,  2  Cow.  811;  Eastland 
v.  Caldwell,  2  Bibb  (Ky.).  21. 

*  Treat  v.  Browning.  4  Conn.  408,  s.  c.  10  Am.  Dec.  156,  and  cas.  ctt,. ;  Clark  v. 
Brown,  116  Mass.  504;  REDFIELD,  J.  in  1  Am.  L.  Reg.  N.  S.  171,  note.     Contra,  Hat- 
field  v.  Lasher,  N.  Y.  Ct.  of  App.  June,  1880.     It  is  not  necessary  to  show  reputation 
of  having  committed  the  precise  legal  offense.     Bridgman  v.  Hopkins,  34  Vt.  532.  s. 
o.  1  Am.  L.  Reg.  N.  S.  168. 

8  See  People  v.  Mather,  4  Wen'd.  229.  The  omission  of  this  preliminary  question 
is  not  fatal  if  objection  is  not  made.  Senter  v.  Carr,  15  X.  H.  351.  It  is  character 
in  the  neighborhood  where  the  person  resides.  Conkey  v.  People,  1  Abb.  Ct.  App. 
Dec.  418. 

4  Wolcott  v.  Hall,  6  .Mass.  514,  s.  c.  4  Am.  Dec.  173. 

8  A  party  must  defend  his  reputation  in  general,  but  not  in  detail ;  he  cannot  be 
expected  to  try  particular  facts  not  in  issue.  Peterson  T.  Morgan,  116  Mass.  350. 

6  Lamos  T.  Snell,  6  N.  H.  413. 

7  Sawyer  v.  Eifert,  2  Nott  &  McCord  (S.  C.),  511,  8.  c.  10  Am.  Dec.  633. 

8  Even  though  it  could  not  have  been  caused  by  a  belief  of  the  charge  made  by  de- 
fendant.    Douglass  v.  Tousey,  2  Wend.  352. 

*  So  held  of  tha  lapse  of  ten  years.     Parkhurst  v.  Ketchum,  6  Allen,  406.     So 
held  of  twelve  years.     Tompkins  v.  Wadley,  3  Supm.  Ct.  (T.  &  C.)  424,  428. 

10  See  Graham  v.  Chrystal,  2  Abb.  Ct.  App.  Dec.  263. 

II  Tompkins  v.  Wadley  (above) ;  Lake  v.  People,  1  Park.  Cr.  495. 

12  P.  6 17  of  this  vol. 

13  Inman  v.  Foster,  8  Wend.  602. 

14  According  tj  some  authorities  he  may  do  this  when  defendant,  without  giving 
evidence  as  to  character,  has  given  evidence  of  the  truth  of  a  charge  of  a  criminal 
offense  whether  in  mitigation,  or  in  justification  (Charlton  v.  Walton,  6  Carr.  <fe  P. 
385;  Harding  v.  Brooks,  5  Pick.   244;  UEDFIELD,  J.  in  1   Am.  L.  Reg.  N.  S.  171); 
at  least  if  the  evidence  of  truth  has  been  only  presumptive  (Sheehey  v.  Ookley, 
43  Iowa,  183,  s.  c.  22  Am.  R.  236). 

Contra,  Houghtaling  v.  Kilderhouse,  1  N.  Y.  630;  Sbipman  v.  Burrows,  1  Hall, 


ACTIONS  FOR  SLANDER  OR  LIBEL.  675 

dence  of  bad  character  in  rebuttal  of  evidence  of  good  character 
is  equally  confined  to  reputation.1  An  attack  by  proof  of  specific 
acts,  does  not  let  in  evidence  of  general  good  character.' 


899 ;  Matthews  v.  Huntley,  9  N.  H.  146.  Compare  Sprague  v.  Craig,  51  111.  288, 
294 ;  Lecky  v.  Bloser,  24  Penn.  401,  407. 

1  Reg.  V.  Rowton,  11  Jur.  N.  S.  325. 

3  Ziter  v.  Merkel,  24  Penn.  St.  408  ;  Bamfield  v.  Massey,  1  Campb.  460;  Pratt  v. 
Andrews,  4  N.  Y.  493. 


CHAPTEE  XLIY. 

ACTIONS  FOR  BREACH  OF  PROMISE  OF  MARRIA.GR. 

1.  Mutual  promises.  6.  Damages. 

2.  Letters.  6.  Defense. 

8.  Affection.  7.  — justification  of  breach. 

4.  Breach.  8.  —  nritigatiou. 

1 .  Mutual  Promises.'] — Plaintiff  must  show  mutual  promises,1 
but  no  particular  form  of  words  nor  even  any  express  promise  is 
necessary.2  A  common  intent,  mutually  accepted  is  enough ;  and 
this  may  be  inferred  from  declarations  and  accepted  attentions 
such  as  usually  characterize  an  engagement  of  marriage.8  Neither 
evidence  of  courtship 4  nor  evidence  of  mutual  attachment 5  is 
alone  enough  to  prove  mutual  promise ;  but  these  facts  are  rele- 
vant, and,  in  connection  with  other  evidence,  may  be  enough.6 
The  promise  on  the  part  of  the  woman  may  be  inferred  from 
slighter  circumstances  than  would  suffice  to  show  that  on  the 
part  of  the  man.7 

The  parties'  conversations  on  the  subject  of  marriage,  though 
some  time  prior  to  the  alleged  promise,  are  admissible  as  tending 
to  show  their  relation  at  the  time  of  the  promise.8  So,  defend- 
ant's declarations  to  plaintiff  that  he  would  make  a  good  home 
for  her,  are  admissible.9 

Plaintiff's  declarations  to  a  third  person,  in  the  absence  of  de- 
fendant, that  defendant  had  made  a  promise  of  marriage,  are  not 
competent  in  her  favor 10  to  prove  defendant's  promise,  but  they 
may  be  competent  as  tending  to  prove  plaintiff's.11  Plaintiff's 


I  Kelly  v.  Riley,  106  Mass.  339,  s.  c.  8  Am.  R.  336. 

9  Homan  v.  Earle,  63  N.  Y.  267;  affi'g  13  Abb.  Pr.  N.  S.  402,  and  cases  cited; 
"Whightman  v.  Coates,  15  Mass.  1. 

3  Id. ;  Id. ;  Rose.  N.  P.  468. 

4  Walmsley  v.  Robinson,  63  111.  41,  s.  o.  14  Am.  R.  Ill ;  and  see  Gates  v.  McKin- 
ney,  48  Incl  662,  567. 

8  Lecky  v.  Bloser,  24  Penn.  St.  401. 

•  Southard  v.  Rexford,  6  Cow.  254 ;  Hubbard  v.  Bonesteel,  16  Barb.  360;  Ilotch- 
kiss  v.  Hodge,  38  Barb.  117,  and  cases  cited. 

7  Such,  for  instance,  as  her  making  no  objections  at  the  time  of  the  offer,  and 
from  her  receiving  defendant's  visits  as  a  suitor.    Wells  v.  Padgett,  8  Barb;  323,  and 
cases  cited ;   Rose.  N.  P.  468. 

8  Hook  v.  Georee,  108  Mass.  324,  331. 

9  Button  v.  McCauley,  1  Abb.  Ct.  App.  Dec.  282,  s.  c.  5  Abb.  Pr.  N.  S.  29,  rev'g 
38  Barb.  413. 

10  Walmsley  v.  Robinson,  63  111.  41,  s.  o.  14  Am.  R.  111.     Nor  is  that  of  her  par- 
.  ent.    Lawrence  v.  Cooke,  86  Me.  187,  195. 

II  See  Cates  v.  McKinney,  48  Ind.  662,  666,  s.  o.  17  Am.  R.  768. 

L676] 


ACTIONS  FOR  BREACH  OF  PROMISE  OF  MARRIAGE.         677 

acts  of  preparation  for  the  wedding,1  and  her  declarations  made 
as  part  of  the  res  gestoa  of  such  acts,  and  showing  the  matrimonial 
intent,  are  competent  in  her  favor.a  Such  declarations  are  com- 
potent  evidence  of  a  promise  in  her  favor,  although  made  in  de- 
fendant's absence.8 

The  time  of  the  promise  is  not  material ; 4  but  the  time  fixed 
by  the  promise,  if  any,  for  its  performance,  is  material.5  A.  con- 
dition or  contingency  expressed  is  material ; 6  unless  it  be  such  as 
is  implied  by  law.7 

2.  Letters^ — The  fact  of  correspondence  is  competent  with- 
out producing  the  letters.8     To  prove  the  contents  the  originals 
must  be  produced,  or  be  accounted  for  to  let  in  secondary  evi- 
dence.    Destruction  may  be  explained.9    Plaintiff's  putting  in 
evidence  one  or  more  of  defendant's  letters  does  not  require  her 
to  put  in  others ; 10  and  putting  in  evidence  his  letters  does  not  re- 
quire her  to  put  in  hers,  nor  raise  a  presumption  that  they  con-* 
tain  evidence  against  her.11      The  other  side  may  read  the  con- 
nected parts  of  the  correspondence.     But  one  who  has  put  in  evi- 
dence, properly,  a  letter  of  the  other,  which  shows  that  it  was 
written  in  answer  to  a  previous  letter,  may  also  put  in  the  pre- 
vious one  as  tending  to  explain  the  answer.12     A  letter  written  by 
plaintiff's  parent  with  her  knowledge  and  without  dissent,  is  com- 
petent against  her,  though  she  would  not  be  answerable  for  par- 
ticular expressions  in  it.13 

The  rules,  for  proving  handwriting  have  already  been  stated.14 

3.  Affection.'] — Witnesses  who  are  shown  to  have  had  suf- 
ficient opportunities  of  observation,15  may  testify  whether  or  not 
in  their  opinion,  one  party  was  sincerely  attached  to  the  other.16 
The  engagement  having  been  proved,  plaintiff's  declarations  of 
present  emotion  of  affection  and  happiness,  as  distinguished  from 


I  Wilcox  v.  Green,  23  Barb.  639. 

9  Id. ;  unless  made  after  rupture.     "Wetmore  T.  Mell,  1  Ohio  St.  26. 
8  Lccky  v.  Blosor,  24  Penn.  St.  401,  406. 

4  Fowler  v.  Martin,  1  Supm.  Ct.  (T.  &  C.)  877.  A  promise  to  marry  generally  is, 
in  law,  a  promise  to  marry  within  a  reasonable  time;  and  although  an  admission  of  a 
special  promise  to  marry  at  a  particular  time  should  be  proved  in  eviduuce,  it  may 
be  left  to  a  jury  to  infer  from  the  circumstances,  a  more  general  promise.  Potter  v. 
Deboos,  1  Stark.  82 ;  Phillips  v.  Crutchley,  1  Moore  «t  P.  239;  Rose.  N.  P.  468. 

8  Martin  v.  Patton,  1  Litt.  (Ky.)  233. 

6  Conrad  v.  Williams,  6  Hill,  444;  Rose.  N.  P.  469. 

7  Waters  v.  Bristol,  26  Conn.  398,  403. 

8  Conaway  v.  Shelton,  3  Ind.  334. 

9  Fowler  v.  Martin,  1  Supm.  Ct.  (T.  A  C  )  377  ;  and  see  p.  390  of  this  vol.  note  2. 

10  GRAY,  J.,  Stone  v.  Sanborn.  104  Mass.  319,  s.  c.  6  Am.  R.  288. 

II  Law  v.  Woodruff,  48  111.  399. 

»  Trischet  v.  Hamilton  Ins.  Co.  14  Gray,  456  ;  Strong  v.  Strong,  1  Abb.  Pr.  N. 
S.  233. 

13  Rose.  N.  P.  470. 

14  P.  393,  <fec.  of  thia  vol.     Hoitt  v.  Moulton,  21  N.  H.  (1  Fost.)  586. 
16  This  is  essential.     Tompkins  v.  Wadley,  8  Supm.  Ct.  (T.  &  C.)  424. 
16  M'Kee  v.  Nelson,  4  Cow.  355;  Sprague  v.  Craig,  51  11L  28& 


C78         ACTIONS  FOR  BREACH  OF  PROMISE  OF  MARRIAGE. 

narratives  of  the  past ;  and,  its  breach  having  been  proved,  her 
similar  declarations  of  pain  and  distress ;  are  competent  in  her 
favor  upon  principles  already  stated.1 

4.  Breach.] — Breach  may  be  proved,  either  by  evidence  of 
another  marriage  by  defendant,  making  performance  impossible ; 2 
or  by  an  express  breaking  off  of  the  engagement  ;8  or  by  circum- 
stantial evidence.4    Evidence  of  defendant's  declarations,  that  he 
never  intended  to  marry  the  plaintiff,  is  admissible.8     Plaintiff 
need  not  prove  a  tender  of  marriage  on  her  part.6     Slight  evidence 
of  a  request  is  sufficient,7  when  any  is  necessary.8 

5.  Damages.'} — In  enhancement  of   damages,  the  pecuniary 
circumstances  of  the  defendant,9  the  announcement  of  engage- 
ment, and  the  advanced  preparations  for  wedding  at  the  time  of 
breach,  are  competent  ;10  and  an  unsuccessful  attempt  by  defend- 
ant, either  in  pleading  n  or  in  evidence,13  to  rest  his  defense  in 
whole  or  in  part  on  charges  of  bad  character  or  improper  conduct 
on  the  part  of  plaintiff,  is  competent  in  aggravation.13 

Seduction  under  the  promise,  if  pleaded,14  is  competent  in  ag- 
gravation of  damages.15  Loss  of  health  is  special  damage,  not 
admissible  unless  alleged.16 

6.  Defense?*] — To  invoke  the  statute  of  frauds,18  it  must  ap- 
pear that  the  terms  of  the  promise  were  to  the  effect  that  the 


1  P.  599  of  this  vol. ;  SWAYNE,  J.,  in  9  Wall.  405. 

2  Sheahan  v.  Barry,  27  Mich.  217,  223;  Rose.  N.  P.  469;  Frost  v.  Knight,  L.  R. 
7  Ex.  Ill,  rev'gL.  R.  5  Ex.  322. 

3  Cherry  v.  Thompson,  L.  R.  7  Q.  B.  573. 

4  Hubbard  v.  Bcnesteel,  16  Barb.  360.  • 
1  Green  v.  Spencer,  3  Mo.  225,  227. 

6  Johnson  v.  Caulkins,  1  Johns.  Cas.  116  ;  Willard  v.  Stone,  7  Cow.  22. 

7  Kniffen  v.  McConnell,  30  N.  Y.  285 ;  Green  v.  Spencer,  3  Mo.  225,  228. 

8  Martin  v.  Patton,  1  Lilt.  (Ky.)  233. 

9  Lawrence  v.  Cooke,  56  Me.  187,  193  ;  as  distinguished  from  those  of  his  family. 
Miller  v.  Rosier,  31  Mich.  475,  478. 

10  Reed  v.  Clark,  47  Cal.  194,  199. 

11  Thorn  v.  Knapp,  42  N.  Y.  474. 

12  Kniffen  v.  McConnell,  30  N.  Y.  285. 

13  To  the  contrary,  unless  bad  faith  is  shown,  are  Powers  v.  Wheatley,  45  Cal.  113 ; 
Reed  v.  Clark,  47  CaL  194,  203.      And  this  is  the  rule  now  recognized  in  libel 
Page  667  of  this  vol. 

'*  Otherwise  not  admissible  if  the  statute  gives  an  action  for  seduction  alone. 
Catcs  v  McKinney,  48  Ind.  562,  s.  c.  17  Am.  R.  768. 

15  Kniffen  v.  McConnell,  SO  N.  Y.  285  ;    Kelley  v.  Riley,  106  Mass.  339 ;    Shrahan 
V.  Barry,  27  Mich.  217;  Green  v.  Spencer,  3  Mo.  225  ;  Sauer  v.  Schulenberg,  33  Md. 
288,  s.  c.  3  Am.  R.  174,  disapproving  decisions  in  Pennsylvania  and  Kentucky;  see 
Johnson  v.  Smith,  3  Pitts.  184. 

16  Bedell  v.  Powell,  13  Barb.  183. 

"  Infancy  of  defendant  a  defense.  Fiebel  v.  Obersky,  13  Abb.  Pr.  N.  S.  402,  n. 
Precontract  of  plaintiff  no  defense.  Roscoe  N.  P.  470;  Roper  v.  Clay,  18  Mo.  383. 
As  to  previous  marriage  of  either  party,  see  Paddock  v.  Robinson,  63  111.  99,  s.  c.  14 
Am.  R.  112 ;  Cover  v.  Davenport,  1  Heisk.  368,  B.  o.  2  Am.  R.  706;  Kelley  v.  Eiley, 
106  Mass.  339,  342. 

18  2  N.  Y.  R.  8.  135,  §  2;  Nichols  v.  Weaver,  7  Kans.  873,  377. 


ACTIONS  FOR  BREACH  OF  PROMISE  OF  MARRIAGE.         679 

marriage  was  not  to  bo  performed  within  one  year.1  A  release  or 
exoneration  of  defendant  from  his  promise  may  be  implied  from 
the  conduct  and  demeanor  of  the  parties.2 

7.  — j unification  of  breach.] — The  presumption  is  that  be- 
fore engagement  the  parties  satisfied  themselves  as  to  each  other's 
character,  and  that  all  objection  to  previous  loose  conduct  was 
waived.8    Subsequent  unchastity  on  plaintiffs  part,4  or  previous 
unchastity  affirmatively  shown  to  have  been  unknown  to  plaintiff 
at  the  time  of  the  engagement,5  is  competent.     Otherwise  of 
mere  rumors  or  repute  of  unchastity.6 

8.  —  mitigation."*] — Any  misconduct  of  plaintiff  after  breach, 
showing  that  she  would  be  an  unfit  companion  in  married  life,  is 
competent  in  mitigation.8     The  burden  is  on  plaintiff  to  show  de- 
fendant's connivance  in  such  misconduct,  if  it  be  relied  on.9    To 
show  defendant's  good  faith,  he  may  prove  the  objection  of  parents 
as  a  ground  of  breach.10    If  plaintiff  has  given  evidence  of  defend- 
ant's wealth,  defendant  may  show  that  property  imputed  to  him 
he  had  lost  before  the  breach,  or  had  lost  by  involuntary  transfer 
after  breach,  upon  contracts  made  before  the  breach.11    Evidence 
of  poverty  at  the  time  of  trial  is  irrelevant.12    If  plaintiff  has 
proved  a  reason  assigned  by  defendant  for  breach,  defendant  may 
prove  its  truth  if  it  tends  to  mitigate  damages.13    Declarations  of 
plaintiff  disavowing  affection  and  all  other  than  mercenary  mo- 
tives, are  admissible,  if  made  'before  the  commencement  of  the 
action,  though  after  breach,14  but  not  if  made  after  commencement 
of  action.15 

Plaintiff's  general  character  (that  is,  reputation)  as  to  virtue 
and  sobriety,  is  relevant  on  the  question  of  damages ; 18  but  evi- 


1  Lawrence  v.  Cooke,  66  Me.  187,  193. 
8  Roscoe  N.  P.  470. 

3  S.jrague  v.  Craig,  61  HI.  288,  296. 

4  Id.     Ui.less  seduction  by  defendant  has  been  shown,  and  breach  without  nssij^i- 
ing  just  grounds,  in  which  case  other  iucontinence  discovered  after  breach  goea  only 
in  mitigation  and  not  in  bar.     Sheahan  v.  Barry,  27  Mich.  217,  222.     Bad  character 
of  a  relative  is  no  bar.     Sherman  v.  Rawson,  102  Mass.  395,  400. 

6  Irving  v.  Greenwood,  1  Carr.  <fe  Payne,  350. 

6  Boies  v.  McAllister,  12  Me.  (3  Fairf.)  308. 

7  According  to  Button  v.  McCaul(-y,  1  Abb.  Ct.  App.  Dec.  282,  s.  c.  6  Abb.  Pr.  N. 
S.  29,  rev'g  88  Barb.  413,  and  Tompkins  v.  Wadley,  3  Supm.  Ct.  (T.  &  C.)  4. '4,  430, 
mitigating  circumstances  may  be  proved  without  being  pleaded.     But  compare  the 
rule  in  slander  and  libel ;  p.  672  of  this  vol. 

8  Butt  >n  v.  McCuuley,  1  Abb.  Ct.  App.  Pec.  282,  s.  c.  2  Abb.  Pr.  N.  S.  29,  rev'g 
38  Barb.  413  ;  Palmer  v.  Andrews,  7  Wend.  142. 

9  Id. ;  Kniffen  v.  McConncll,  30  N.  Y.  235. 

10  Irving  v.  Greenwood,  1  l'ar;\  <fe  Payne,  350 ;  Johnson  v.  Jenkins,  24  N.  Y.  252. 

11  Spraguo  v.  Craig,  61  111.  288,  291. 
»  Id. 

13  Johnson  v.  Jenkins  (above). 

14  MilliT  v.  Rosier,  81  Mich.  475,  477. 

15  Miller  v.  Hayes,  84  Iowa,  496,  s.  c.  11  Am.  R.  154. 

"  Johnson  v.  (.  aulkins,  1  Johns.  CUB.  110  ;.  Will.ird  v.   Stone,  7  Cow.  22;    Palmer 
V.  Andrews,  7  Wend.  142.     These  cases  allow  evidence  of  bad  repute  after  the 


680         ACTIONS  FOB  BREACH  OF  PROMISE  OF  MARRIAGE. 

denco  of  bad  character  relied  on  in  bar  must  show  charges  well 
founded,1  and  unknown  to  plaintiff  when  he  made  the  engage- 
ment. 

The  mode  of  proving  character  has  been  already  stated.8 
"Where  chastity  and  not  mere  reputation  is  in  issue,  specific 
acts  of  unchastity  may  be  proved.8 


breach,  but  it  is  certainly  otherwise  in  case  of  seduction.     Boynton  v.  Kellogg,  3 
Mass.  189,  192.     Compare  the  rule  in  slander  and  libel,  p.  674  of  this  vol. 

1  Roscoe  N.  P.  470. 

*  See  p.  674  of  this  vol. 

8  Ford  v.  Jones,  62  Barb.  484. 


CHAPTEE  XLV. 

ACTIONS  FOR  SEDUCTION  OR  ENTICING  AWAY. 

1.  Husband's  action  for  enticing.  5.  Loss  of  service. 

2.  Master's  action.  6.  Good  faith. 
8.  Parent's  action.  7.  Character. 
4.  Seduction.  8.  Defense. 

1.  Husband's  action. .] — In  a  husband's  action  for  enticing 
away,  as  distinguished  from  an  action  for  criminal  conversation,1 
direct  proof  of  formal  marriage  is  not  necessary.     Evidence  of 
cohabitation  and  repute,   and   of    defendant's   admissions  that 
plaintiff  and  his  alleged  wife  were  married,  is  sufficient.2    If  it 
appear  that  defendant  aided  her  to  leave,  at  her  request,  upon  her 
complaint  of  ill-usage,  the  burden  of  proof  is  upon  plaintiff  to 
prove  an  unlawful  motive  or  design  on  defendant's  part.3    If  de- 
fendant is  the  father  of  the  wife,  the  presumption  is  that  he 
acted  from  paternal  affection  rather  than  from  improper  motives.4 

2.  Master's  action.'] — To  recover  for  enticing  from  service,  it 
must  appear  that  the  servant  was  at  the  time  in  plaintiffs  actual 
service,  and  that  defendant's  inducement  was  the  moving  cause 
of  desertion.5     There   must  be   some   evidence   of  defendant's 
knowledge  of  the  relation.6 

3.  Parent's  action."] — The  rules  as  to  proving  parentage  are 
elsewhere  stated.7  '  Proof  of  the  slightest  degree  of  service  is 
sufficient,8  provided  it  included  the  time  of  the  wrong,9  or  some 
part  of  it.10    Where  there  is  no  evidence  of  actual  service,  evi- 
dence that  the  parent's  marriage  was  void  is  competent,  to  rebut 


1  See  next  chapter. 

4  Scherpf  v.  Szadeczky,  1  Abb.  Pr.  366,  s.  c.  4  E.  D.  Smith,  110 ;  see  page  79  of 
this  vol. 

3  Barnes  v.  Allen,  1  Abb.  Ct.  App.  Dec.  Ill,  s.  o.  1  Keyes,  390,  rev'g  30  Barb. 
668  ;  see,  also,  Bennett  v.  Smith,  21  Barb.  439 ;  Schuneman  v.  Palmer,  4  Barb.  225. 

4  Ilutcheson  v.  Peck,  5  Johns.  196. 

6  Caughey  v.  Smith,  47  N.  Y.  244 ;  and  see  Bixby  v.  Dunlap,  56  N.  H.  466,  s.  c. 
22  Am.  R.  475,  and  note. 

6  Id. ;  and  see  Stuart  v.  Simpson,  1  "Wend.  377. 
*  Pages  382  and  87  to  89  of  this  vol. 

8  Moran  v.  Dawes,  4  Cow.  412 ;  Badgley  v.  Decker,  44  Barb.  577,  and  cases  cited. 
Compare  Blanchard  v.  Ilslev,  120  Mass.  487,  s.  c.  21  Am.  R.  535 ;  Kennedy  v.  Shea, 
110  Mass.  147,  8.  o.  14  Am.  R.  584. 

9  Hedges  v.  Tagg.  L.  R.  7  Ex.  283,  s.  c.  2  Moats  Eng.  679. 

10  See  Evans  v.  Walton,  L.  R.  2  C.  P.  615. 

[G31] 


682  ACTIONS  FOR  SEDUCTION  OR  ENTICING  AWAY/ 

a  presumption  of  actual  service  by  showing  that  the  plaintiff  was 
not  legally  entitled  to  her  services ;  and  in  mitigation  of  dam- 
ages.1 * 

4.  Seduction.'] — The  circumstances  under  which  the  female 
was  seduced,  and  the  means  used  for  effecting  it,  and  corrupting 
her  mind,  may  be  shown.8    But  promise  of  marriage  cannot  be 
proven,3  unless,  perhaps,  when  offered  for  a  special  purpose, — as, 
for  instance,  to  rebut  evidence  of  a  father's  negligent  exposure  of 
his  daughter.4 

5.  Loss  of  service.'] — There  must  be  some  evidence  from  which 
loss  of  service  may  be  inferred.5    In  the  case  of  seduction,  either 
pregnancy,6  or  impairment  of  health,7  is  enough.     Procuring  an 
abortion  is  competent  in  aggravation.8 

6.  Good  faith.~] — Defendant,  to  show  good  faith,  want   of 
knowledge;  &c.,  may  prove  declarations  made  by  the  wife  or 
servant  at  the  time  the  defendant  received  him  or  her,9  or  at  the 
time  of  alleged  ill  treatment,10  stating  apparent  good  cause  for 
leaving  plaintiff.     The  fact  that  he  did  not  inquire  of  plaintiff  as 
to  the  truth  of  the  reports  of  cruelty  on  which  he  acted  is  only 
a  circumstance  for  the  jury.11 

1.  Character.'] — The  character  of  the  parent,13  and  that  of  the 
house  in  which  the  child,  being  a  minor,  resided  with  her  parent,13 
are  irrelevant. 

Evidence  of  the  girl's  previous  good  character  for  chastity  is 
not  competent  in  the  first  instance  as  part  of  plaintiff's  case,14 
except  as  it  may  legitimately  bear  on  the  value  of  services.15 

Defendant,  in  mitigation  of  damages,  may  show  the  girl's 
previous  bad  character  for  chastity,18  and  specific  instances  of  pre- 
vious lascivious  conduct  on  her  part  ;17  but  neither,  subsequent  to 


1  Howland  v.  Howland,  114  Mass.  617,  s.  c.  19  Am.  R.  381. 
s  Bracy  v.  Kibbe,  31  Barb.  273 ;  Kennedy  v.  Shea,  1 10  Mass.  147,  s.  o.  14  Am.  R. 
684. 

3  Clark  v.  Fitch,  2  "Wend.  459;  Gillet  v.  Mead,  7  Id.  193;  Brownell  v.  McEwen, 
6  Den.  307.    Contra,  White  v.  Campbell,  13  Gratt.  673 ;  Mudd  v.  Clements,  3  Cranch 
C.  Ct.  3 ;  and  see  Rose.  N.  P.  676. 

4  Whitney  v.  Elmer,  60  Barb.  250. 

5  Ilewit  v.  Prime,  21  "Wend.  79,  and  cases  cited. 

6  Id. ;  In^crson  v.  Miller,  47  Barb.  47. 

7  Abrahams  v.  Kidney,  104  Mass.  222,  B.  c.  6  Am.  R.  220;  "White  v.  Nellis,  31 
N.  Y.  405. 

8  White  v.  Murtland,  71  111.  250,  a  c.  22  Am.  R.  100. 
»  Caughey  v.  Smith,  47  N.  Y.  244. 

10  Barnes  v.  Allen,  1  Abb.  Ct.  App.  Dec.  Ill,  s.  c.  1  Kcyes,  390,  reVg  30  Barb. 
663. 

11  Smith  v.  Lyke,  13  Hun.  204. 
"  Dain  v.  "Wyckoff,  18  N.  Y.  45. 

13  Kenyon  v.  People,  26  N.  Y.  203,  affi'g  People  v.  Kenycn,  5  Park  Cr.  264. 

14  Bracy  v.  Kibbc,  31  Barb.  273 ;  1  Whart.  Ev.  65,  §  60. 
>B  1  Whart.  Ev.  65,  §  51. 

le  1  Whnrt.  Ev.  G5,  £  51. 

"  Bracy  v.  Kibbe,  31  Barb.  273;  Dodd  v.  Norris,  3  Campb.  519. 


ACTIONS  FOR  SEDUCTION  OR  ENTICING  AWAY.  683 

his  seduction  of  her.  Defendant  is  not  bound  by  her  answers  as 
to  such  matters  on  cross-examination.1  If  defendant  gives  general 
evidence  of  bad  character  for  chastity,  before  the  alleged  wrong, 
plaintiff  may  rebut  it  by  general  evidence  of  good  character.2 

8.  Defense."] — Plaintiff's  consent  or  connivance  is  not  admis- 
sible as  a  bar,  unless  pleaded.3  An  offer  of  marriage  is  not  ad- 
missible in  mitigation.4 


1  Hogan  v.  Cregan,  6  Robt.  138. 

8  Pratt  v.  Andrews,  4  N.  Y.  493,  495,  and  cases  cited. 
8  Travis  v.  Barger,  24  Barb.  614;  but  see  Chapter  on  GRIM.  CON. 
*  Ingersoll  v.  Jones,  5  Barb.  661,  especially  if  made  after  suit  brought.     White  v. 
Murtland,  71  111.  250,  s.  c.  22  Am.  R.  100. 


CHAPTER  XLYI. 

ACTIONS  FOR  CRIMINAL  CONVERSATION. 

1.  Competency  of  witnesses.  6.  Loss  of  consortsbip :  Damages. 

2.  Marriage.  6.  Defenses, 
8.  Affection  and  domestic  happiness.  7.  Character. 
4.  Criminal  intercourse. 

1.  Competency  of  witnesses.'] — Plaintiff  is  a  competent  wit- 
ness  for  either  party,1  subject  to  the  restrictions  as  to  disclosing 
confidential  communications  already  stated.2    His  wife  is  not  a 
competent  witness  for  him,3  but  is  now  competent  for  defendant, 
with  somewhat  similar  restrictions.4 

Defendant  is  a  competent  witness  for  plaintiff,  subject  to  his 
privilege  from  criminating  himself  5  in  those  jurisdictions  where 
adultery  is  a  crime.  He  is  competent  as  a  witness  on  his  own  be- 
half ;  but,  if  called,  it  is  usually  with  the  effect  of  waiving  his 
privilege  on  cross-examination.6 

2.  Marriage.'] — Marriage  must  be  proved  by  direct  evidence.1' 
Permanent  separation  by  a  valid  agreement,  so  that  the  husband 


1  He  was  incompetent  at  common  law,  on  grounds  of  public  policy  independent 
of  his  incompetency  as  a  party.  Rex  v.  Luffe,  8  East,  1 93 ;  Dennison  v.  Page,  29 
Penn.  St.  420,  423 ;  Ratcliff  v.  Wales,  1  Hill,  63.  And  in  those  States  where  the 
statute  only  removes  the  incompetency  of  parties,  it  is  the  better  view  that  the  hus- 
band is  still  incompetent  in  his  own  favor  in  this  class  of  actions.  Manchester  v. 
Manchester,  24  Vt.  649  ;  Dwelly  v.  Dwelly,  46  Me.  377  ;  Hasbrouclc  v.  Vandervoort, 
9  N.  Y.  153;  p.  166  of  this  vol.  note.  On  the  injustice  of  admitting  the  one  when 
the  other  cannot  be  admitted,  see  Baylis  v.  Baylis,  L.  R.  1  Pr.  &  D.  395  ;  Conradi  v. 
Conradi,  Id.  514;  Harding  v.  Harding,  4  Sw.  &  Tr.  145,  149 ;  Blackborne  v.  Black- 
borne,  L.  R.  1  Pr.  <fc  D.  563;  Mordaunt  v.  Mordaunt,  L.  R.  2  Pr.  &  D.  109,  124. 

4  Page  165  of  this  vol. 

3  Page  165  of  this  vol. ;    Hicks  v.  Bradner,   2   Abb.  Ct.  App.  Dec.  362  ;    Rea  v. 
Tucker,  51  111.  110.     Unless  after  divorce.     Ratcliffe  v.  Wales,  1  Hill,  63 ;    Dicker- 
man  v.  Graves,  60  Mass.  (6  Cush.)  308. 
•  4  Page  165  of  this  vol. 

The  rule  as  to  the  competency  of  declarations  of  the  wife  is  stated  at  p.  166  of 
this  vol. 

5  For  the  general  rule  as  to  the  privilege,  see  p.  620  of  this  vol. 

6  See  Boardman  v.  Boardman,  L.  R.  1  Pr.  <fe  1).  233 ;  Tappan  v.  Butler,  7  Bosw. 
480. 

7  The  mode  of  proof  is  that  stated  at  pp.  79  and  80  of  this  vol.      Hutchins  v. 
Kimmell,  31  Mich.  126,  s.  c.  18  Am.  R.  164;    Birt  v.  Barlow.  1  Dougl.  171 ;    Hem- 
mings  v.  Smith,  4  Id.  33  ;  Nixon  v.  Brown,  4  Blackf.  157.     Contra,  as  to  husband's 
competency,  Dann  v.  Kingdom,  1  Supm.  Ct.  (T.  &  C.)  492;  but  see  N.  Y.  Code  Civ. 
Pro.  g§  829-31,  removing  incornpetency.     Where  ceremonies  of  marriage  in  a  for- 
eign conntry,  with  cohabitation  following  it,  are  shown  by  official  certificates  duly 
authenticated,  it  is  presumptively  a  valid  marriage,  and  it  is  not  necessary  to  prove 
the  foreign  law  of  marriage.     Hutchins  v.  Kimmell  (above). 

[684] 


ACTIONS  FOR  CRIMINAL  CONVERSATION.  685 

had  no  right  to  the  society  and  assistance  of  his  wife  at  the  time 
of  the  alleged  intercourse,  is  a  bar.1  Unless  the  separation  is 
legal  and  permanent,  it  goes  in  mitigation  only.2 

3.  Affection  and  domestic  happiness. .] — To  show  the  affection 
and  domestic  happiness  of  the  husband  and  wife,  it  is  competent 
to  prove  expressions  of  affection  and  regard  used  by  either  in  the 
presence  of  the  other,3  and  the  wife's  manner  of  speaking  and 
writing  of  her  husband  even  when  absent  from  him  ; 4  their  let- 
ters to  each  other.5    The  opinions  of  witnesses,  who  are  shown  to 
have  had  sufficient  means  of  observation,  as  to  the  affection  of 
the  wife  for  her  husband,6  the  happiness  of  the  marriage,7  &c., 
are  competent  within  the  same  limits   that  evidence  of  decla- 
rations would  be.8    Evidence   of  the  declarations,  letters,  &c., 
or  manner  of  the  husband,  should  be  confined  to  the  period 
before  his  first  suspicions  of  his  wife.     Evidence  of  those  of  the 
wife  should  be  confined  to  the  period  before  her  intimacy  with 
the  defendant.9      The  date  of  a  letter  is  not,  for  this  purpose, 
sufficient  pri ma  facie  evidence  of  the  time  when  it  was  written.10 

4.  Criminal  intercourse.  ] — Though  the  gist  of  the  action  is 
the  loss  of  consortship,11  criminal  intercourse,  being  alleged,  must 
be  proved.13    Under  an  allegation  general  as  to  time,  illicit  inter- 
course at  any  time  within  the  period  is  admissible,  but  in  case  of 
surprise  an  adjournment  may  be  allowed.13 

Kales  as  to  the  mode  of  proving  adulterous  intercourse,  and  the 
admissibility  of  the  evidence  under  the  issue,  and  the  limits  of 
time,  are  the  same  as  in  actions  for  divorce,  subject  to  the  quali- 
fications stated  in  this  chapter.  Neither  a  judgment  of  divorce 
against  the  wife,  nor  the  confessions  of  the  wife  are  competent 
against  plaintiff,  except  in  the  cases  stated  at  p.  166  of  this  vol. 

5.  Loss  of  consortship : 14  Damages.] — Evidence  of  defendant's 


1  Weedon  v.  Timbrell,  5  T.  R.  357,  as  explained  in  Chambers  v.  Caulfield,  6  East, 
244 ;  Graham  v.  Wigley,  2  Bright'*  H.  &  W.  352 ;  and  reiterated  in  Harvey  v.  Wat- 
son, 7  Mann.  &  G.  644;    and  see  Fry  v.  Derstler,  2  Yeates  (Penn.),  278. 

2  Buller  N.  P.  27 ;  1  Selw.  N.  P.  10. 

*  Edwards  v.  Crock,  4  Esp.  39  ;  Preston  v.  Bowers,  13  Ohio  St.  1. 
4  Jones  v.  Thompson,  6  Carr.  &  P.  415  ;    Willis  v.  Bernard,  8  Bing.  376,  s.  c.  5 
Carr.  &  P.  342. 

8  Trelawney  v.  Coleraan,  1-Barnew.  &  Aid.  90 ;  Edwards  v.  Crock  (above). 
6  Trelawney  v.  Coleman,  2  Stark.  191. 
1  Bell  v.  Bell,  1  Sw.  &  Tr.  565. 

8  Bowie  v.  Maddox,  29  Geo.  285. 

9  Cases  in  notes  above  ;  Wilton  v.  Webster,  7  Carr.  <fe  P.  198. 

10  Houliston  v.  Smyth,  2  Carr.  <fe  P.  22 ;  Trelawney  v.  Coleman,  1  Barnew.  <t  Aid. 
90;  Edwards  v.  Crock  (above);  s.  P.  p.  13  of  this  vol. 

11  Weedon  v.  Timbrell,  5  T.  R.  357. 

12  Winsmore  v.  Greenbank,  Willes,  577,  581 ;    Wood  v.   Matthews,  47  Iowa,  409, 
s.  o.  8  Reporter,  143. 

18  Coddington  v.  Coddington,  4  Sw.  <fe  Tr.  63. 

14  As  to  causes  of  separation,  see  p.  179  of  this  voL 


686  ACTIONS  FOR  CRIMINAL  CONVERSATION. 

wealth  is  not  competent.1    The  pecuniary  circumstances  of  plaint- 
iff are  not  relevant.3 

The  means  used  by  defendant  to  obtain  an  intimacy 3  and  cor- 
rupt the  mind 4  of  the  wife,  are  competent,  and  the  situation  of 
plaintiff's  children  who  were  dependent  on  the  wife's  care.5 

6.  Defenses.'] — Under  the  general  issue  may  be  proved  any- 
thing which  goes  to  show  that  plaintiff  never  had  a  cause  of  ac- 
tion, by  negativing  any  matter  of  fact  alleged  or  necessary  to  be 
proved  (as  distinguished  from  avoiding  conclusions  of  law),  e.  <?., 
that  he  was  never  married,  that  the  intercourse  alleged  was  by 
his  license  or  connivance,  that  his  delay  to  sue  or  disavowals  of  a 
cause  of  action  throw  suspicion  on  his  case ;  as  well  as  all  matters 
merely  in  mitigation,  such  as  evidence  of  his  or  his  wife's  bad 
character,  of  his  unhappy  domestic  life,  of  the  degree  of  suffer- 
ing, &c.  And,  on  the  other  hand,  any  matter  which  confesses 
and  avoids  the  cause  of  action, — e.  <?.,  condonation,  release,  a  for- 
mer recovery  for  the  same  cause,  &c., — must  be  pleaded  in  order 
to  be  admissible.6  Plaintiffs  consent  to  the  adultery  at  the  time 
may  be  proved  in  bar.  In  mitigation  may  be  proved,  the  hus- 
band's gross  negligence  or  inattention  to  the  conduct  of  his  wife 
with  respect  to  the  defendant ; 7  any  circumstances  tending  to  con- 
trovert the  affection  and  domestic  happiness  of  the  husband  and 
wife  before  the  alleged  wrong ; 8  or  that  he  had  put  away  his  wife 
and  charged  her  with  misconduct  before  the  alleged  intercourse.9 

Condonation  with  the  wife  is  a  mitigation,  and  throws  great 
doubt  on  any  testimony  of  the  husband  to  guilt,10  if  not  a  bar.u 


1  James  v.  Biddington,  6  Carr.  <fc  P.  589,  followed  in  Kniffen  v.  McConnell,  30  N.  T. 
285,  289 ;  Bell  v.  Bell,  1  Sw.  &  Tr.  569;  Wilson  v.  Leonard,  5  Ir.  Jur.  O.  S.  101.     Ex- 
cept  in  those  jurisdictions  were  punitory  damages  are  allowed  to  be  enhanced  accord- 
ing to  the  means  of  the  wrong-doer.    Peters  v.  Lake,  66  111.  '206,  s.  c.  16  Am.  R.  593. 

2  Norton  v.  Warner,  9  Conn.  172.     Contra,  Thompson  v.  Glenderminp:,  1  Head 
(Tenn.),  297 ;  Massey  v.  Headford,  Phila.  P.  Byrne,  1804 ;  Rea  v.  Tucker,  51  111.  110. 

3  Massey  v.  Heaciford  (above). 

4  Campbell  v.  Hook,  Major  Hook's  Defense,  Lond.  J.  Murray,  1793. 

5  See  Bedford  v.  McKowl,  8  Esp.  1 19. 

6  This  is  the  common  law  rule,  and  in  harmony  with  the  general  principles  of 
pleading  under  the  Code  established  in  McKyring  v.  Bull,  16  N.  Y.  297.     To  the 
same  effect,  in  part,  Travis  v.  Barger,  24  Barb.  614.     Compare  the  rulings  in  Slan- 
der and  Libel  (p.  659  of  this  vol.)  and  in  Breach  of  Promise  (p.  676  of  this  vol.). 

1  Duberley  v.  Gunning,  4  T.  R.  657,  approved  and  followed  in  Bunnell  v.  Great- 
head,  49  Barb.  106.  To  the  same  effect  is  the  unreported  case  of  Trevannion  v. 
Danbuz,  mentioned  in  1  Steph.  N.  P.  7  ;  Lowe  v.  Massey,  62  111.  (Freem.)  47 ;  Smith 
v.  Masten,  15  Wend.  270. 

8  Smith  v.  Masten,  15  Wend.  270;    Palmer  v.  Crook,  7  Gray,  418  ;    Coleman  v. 
White.  43  Ind.  429.    And,  for  this  purpose,  may  show  specific  acts  of  cruelly.    Isarra- 
cott  v.  Narracott,  3  Sw.  <fe  Tr.  408.     The  wife's  declarations  are  competent  for  this 
purpose  within  limits  already  stated.    Paragraph  3,  and  page  179  of  this  vol. 

9  Winter  v.  Henn,  4  Carr.  <fe  P.  494. 

10  State  v.  Marvin,  35  N.  H.  22. 

11  On  this  question,  see,  in  the  affirmative,  Aiken  v.  Macree,  2  Shaw's  Dig.  842,  Pi 
706;    Norris  v.  Nonis,  30  L.  J.  Mat.  Cas.  Ill ;    Adams  v.  Adams,  L.  R.  1  Pr.  &  D. 
833  ;  negative,  Foley  v.  Lord  Peterborough,  4  Dougl.  294  ;    Sauboru  v.  Neilson,  4  N. 
H.501. 


ACTIONS  FOR  CRIMINAL  CONVERSATION.  C87 

7.  Character.'] — Defendant's  character  is  not  in  issue  in  this 
action  ;*  hence  evidence  of  his  good  character  is  not  admissible,2 
in  the  absence  of  evidence  directly  attacking  it.3 

Plaintiffs  character  and  moral  principles  are  in  issue 4  for 
purposes  of  mitigation ;  hence  his  adulteries  at  any  time  after 
marriage  and  before  trial,5  and  equally  his  gross  immoralities,6 
and  his  avowals  of  profligate  principles,7  are  competent  in  miti- 
gation.8 

Evidence  impeaching  the  chastity  of  the  woman  previous  to 
the  alleged  offense,  is  admissible  in  mitigation.9  Evidence  of  the 
general  good  character,  that  is  reputation,  of  the  wife,  prior  to 
the  alleged  familiarities  of  defendant,  is  not  admissible  if  no  evi- 
dence impeaching  her  character  has  been  given.10 


1  Cox  v.  Pratt,  25  Ind.  90;  Trial  of  Swensden,  14  How.  St.  Tr.  (17^2),  589,  590. 

8  Ziter  v.  Merkel,  24  Peiin.  St.  408  ;  Magninay  v.  Saudek,  5  Sneed  (Tenn.),  14C. 

8  Cox  v.  Pruitt  (above).  The  expression  "putting  character  in  issue,"  does  not 
mean  that  a  man's  reputation  is  imperiled  by  the  result  of  the  action,  but  that  the 
character  is  of  particular  importance  in  determining  the  issue  or  the  measure  of  darn- 
ages.  Ford  v.  Jones,  62  Barb.  484;  Porter  v.  Seller,  23  Penn.  St.  424;  see,  also, 
p.  673-5  of  this  vol. 

4  Smith  v.  Hasten,  15  Wend.  270 ;  Foot  v.  Tracy,  1  Johns.  46,  61. 

6  Id. ;  Shattuck  v.  Hammond,  46  Vt.  466,  s.  c.  14  Am.  R.  631 ;  Sanborn  v.  Neil- 
son,  4  N.  H.  501 ;  Rea  v.  Tucker,  51  111.  110. 

6  Bennett  v.  Smith,  21  Barb.  439.     Contra,  Norton  v.  Warner,  9  Conn.  171.     . 

7  See  Robinson  v.  Burton,  5  Harr.  (Del.)  335. 

8  Bromley  v.  Wallace,  4  Esp.  237  ;  Harrison  v.  Price,  22  Ind.  165. 

9  Gregson  v.  MTaggart,  1  Campb  415;  Elsam  v.  Faucett,  2  Esp.  o62  ;  Ilarter  V. 
Crill,  33  Barb.  283;  Smith  v.  Milburn,  17  Iowa,  30;  Rea  v.  Tucker  (above);  Motty. 
Goddard,  1  Root,  472;    Davenport  v.  llussell,  5  Day,  145  ;    Torre  v.  Summers,  2  N. 
&  M.  267;  Verry  v.  Watkins,  7  Carr.  <fe  P.  308;   Hogan  v.  Cregan,  6  Robt.  138; 
Thompson  v.  Glendenning,  1  Head  (Tenn.),  296 ;  Camp  v.  The  State,  3  Geo.  (Kelly), 
417  ;  Conway  v.  Nicol,  34  Iowa,  533. 

10  Pratt  v.  Andrews,  4  N.  Y.  493. 


CHAPTER   XLVII 

ACTIONS  TO   RECOVER  POSSESSION  OF   SPECIFIC   PERSONAL 
PROPERTY   (REPLEVIN). 

1.  Existence  and  identity  of  the  thing.         6.  Damages. 

2.  Plaintiff's  ownership.  7.  Declarations  and  admissions  of  for- 
8.  Defendant's  taking  and  possession.  mer  possessor. 

4.  Fraud.  8.  Defense. 

5.  Demand. 

1.  Existence  and  identity  of  the  thing, ,] — As  the  action  is  to 
recover  a  specific  thing,  plaintiff's  evidence  must  sustain  an  infer- 
ence that  it  existed,  as  such  *  at  the  time  of  commencing  the  ac- 
tion ; 2  and  show  its  identity  sufficiently  to  enable  the  court  to  give 
judgment  for  what  is  to  be  delivered.3    Declarations  made  by  or 
in  presence  of  a  party  and  constituting  a  part  of  the  res  gestcB  of 
his  possession,  are  competent  on  the  question  of  identity/ 

2.  Plaintiff's  ownership^ — Plaintiff  must  prove  that  he5  had 
a  legal6  or  equitable7  right  to  immediate  possession8  at  the  com- 
mencement of  the  action,9  and  this  is  enough.     Right  to  the  pos- 
session and  dominion  of  the  goods  for  the  time  is  all  that  is  essen- 
tial.10   Ownership  may  be  proved  under  a  general  allegation,  desig- 
nating the  things  as  the  "  goods  of  the  plaintiff."  n 


I  Sager  v.  Blain,  44  N.  Y.  445.     A  recovery  as  for  money  had  and  received  can 
not  be  maintained. 

3  Under  the  new  procedure  this  is  usually  the  time  of  service.  N.  Y.  Code  Civ. 
Pro.  §  416 ;  \Viggin  v.  Orser,  5  Duer,  118 ;  Tracy  v.  N.  Y.  &  Harlem  R.  R.  Co.  9 
Bosw.  396.  In  those  jurisdictions  where  the  issue  of  the  writ  is  the  commencement, 
the  hour  may  be  proved  by  extrinsic  evidence  (Knowlton  v.  Culver,  1  Chand.  [Wis.] 
214),  and  the  date  of  the  writ  is  not  conclusive.  Welles  Replev.  425,  §  792. 

3  Graves  v.  Dudley,  20  N.  Y.  76.     The  identification  must  be  the  more  complete 
if  it  appears  thst  defendant  has  several  of  the  same  kind.     Id.     For  the  mode  of 
proof  in  other  respects,  see  pp.  632  and  633  of  this  vol.     Undertaking  and  affidavit 
in  claim  and  delivery,  held  not  evidence  of  identity.     Talcott  v.  Beldino-,  36  Super. 
Ct.  (4  J.  AS.)  84. 

4  Crowtlier  v.  Gibson,  19  Mo.  365  ;  Yarbrough  v.  Arnold,  20  Ark.  592,  597. 
6  Rogers  v.  Arnold,  12  Wend   oO. 

6  M'Curdy  v.  Brown,  1  Duer,  101  ;  Dodworth  v.  Jones,  4  Duer,  201 ;  Rockwell  v. 
Saunders,  19  Barb.  473. 

1  Frost  v.  Mott,  34  N.  Y.  253. 

8  A  right  by  virtue  of  a  lien  is  enough.     Baker  v.  Hoasr,  7  F.  Y.  555  (overruling 
3  Barb.  203);  Baker  v.  Hoag,  7  Barb.  113  ;  Fitzhugh  v.  Wiman,  9  N.  Y.  559.     For 
the  mode  of  proof  in  an  action  by  an  officer,  see  pp.  197  and  605. 

9  See  note  2  to  paragraph  1. 

10  Johnson  v.  Carnley,  10  N.  Y.  570. 

II  Simmons  v.  Lyons,  55  N.  Y.  671,  affi'g  35  N.  Y.  Super.  Ct.  (3  J.  A  S.)  554. 
Under  an  allegation  of  absolute  ownership,  proof  of  a  lien  only  is  a  variance,  but 
usually  amendable.     Rucker  v.  Donovan,  13  Kans.  251,  s.  c.  19  Am.  R.  84. 

[688] 


ACTIONS  TO  REPLEVIN  SPECIFIC  PERSONAL  PROPERTY.     689 

If  title  is  expressly  alleged  and  put  in  issue,  the  burden  is  on 
plaintiff  to  prove  title,  even  though  defendant  lias  affirmatively 
alleged  an  adverse  title  as  his  defense.1  The  quiet  and  peaceable 
possession  by  plaintiff  of  the  property,  at  the  time  of  seizure,  is 
prima  facie  evidence  of  his  title,  and  throws  the  burden  on  de- 
fendant of  proving  the  contrary  ; 2  but  possession  is  not  sufficient 
evidence  of  title  as  against  direct  evidence  of  title  in  defendant, 
or  even  evidence  of  prior  possession  in  him  under  claim  of  title.8 

If  plaintiff  proves  ownership  and  right  to  immediate  posses- 
sion, he  need  not  prove  that  he  ever  had  possession.4 

Subject  to  the  qualification  that  plaintiff  must  prove  imme- 
diate right  of  possession  of  a  thing  in  existence  at  the  commence- 
ment ol  the  action,  his  right  is  proved  as  in  case  of  conversion.5 

Evidence  can  not  be  received  for  the  purpose  of  litigating  the 
title  of  land  under  the  form  of  an  action  for  replevin  ;6  but,  for 
the  purpose  of  determining  the  ownership  of  products  of  the 
land,  plaintiff  may  prove  a  title7  or  right  of  possession8  in  the 
land,  such  as  to  give  that  ownership,  if  defendant  was  a  trespasser, 
or  had  not  paramount  title  or  a  ripe  adverse  possession.9  It  is  no 
objection  that  title  to  the  land  is  not  alleged  in  the  pleading.10 

3.  Defendant's  taking  and  possession.'] — Evidence  of  actual, 
forcible  dispossession  of  plaintiff  is  not  necessary ;  any  unlawful 
interference  with  another's  property  or  exercise  of  dominion 
over  it,  by  which  the  owner  is  damnified,  is  sufficient.11  If  de- 
fendant is  shown  to  have  had  possession,  and  either  wrongfully 
parted  with  it,12  or  was  privy  to  a  demand  and  refusal,13  his  lack  of 
possession  at  the  commencement  of  the  action  is  not  material. 

A  conversion  need  not  be  proved  merely  because  alleged.14 

An  undertaking  or  bond  on  which  defendant  obtained  the  re- 
turn of  the  property  under  the  statute  is  competent  in  disproof 
of  his  denial  that  he  had  detained  it.15 


1  Reynolds  v.  McCormick,  62  111.  412  ;  Morgner  v.  Biggs,  46  Mo.  65  ;  Chandler  v. 
Lincoln,  62  111.  74. 

2  Schulenberg  v.  Harriman,  21  Wall.  44,  59  •   Robertson  v.  Brown,  1   N.  Y.  Leg. 
Obs.  297. 

3  Wells  Replev.  67-9,  §§  109-16. 

4  Clark  v.   Skinner,  20  Johns.  465;  Dunham  v.  Wyckoff,  3  Wend.  280;  Neffv. 
Thompson,  8  Barb.  213. 

8  Fagfs  623  and  624  of  this  vol. 
8  Wells  Replev.  60-4,  §§  79-89. 

7  Hart  v.  Vinsnnt,  6  Heisk.  (Tenn.)  616. 

8  Halleck  v.  Mixer,  16  Cal.  574,  for  the  mode. 

'  For  the  mode  of  proof,  see  p.  634  of  this  vol.,  and  Chap.  XLVTII. 

10  Grewell  v.  Walden,  23  Cal.  165,  169. 

11  Allen  v.  Crary,  10  Wend.  349;  Fonda  v.  Van  Home,  15  Id.  631  ;  Hymann  v. 
Cook,  1  How.  App.  Cas.  419;  Knapp  v.  Smith,  27  N.  Y.  277;  Latimer  v.  Whoeler 
(below).     Compare  Bent  v.  Bent,  44  Vt.  633.     For  the  mode  of  proof  in  an  action 
against  an  officer,  see  pp.  198-202,  606-12.  631. 

14  Nichols  v.  Michai-1,  23  N.  Y.  264 ;  Dunham  v.  Troy  Union  R.  R.  Co.  1  Abb.  (X 
App.  Dec.  566. 

13  Latimer  v.  Wheeler,  8  Abb.  Ct.  App.  Dec.  35,  affi'g  30  Barb.  485. 

14  Vogel  v.  Badcock,  1  Abb.  Pr.  176.     For  the  mode  of  proof,  see  p.  626  of  this  vol. 

15  Black  v.  Foster,  7  Abb.  Pr.  406,  s.  c.  28  Barb.  387 ;  but  does  not  admit  cause  of 
action.     Church  v.  Frost,  3  Supm.  Ct.  (T.  «fc  C.)  31& 

44 


690     ACTIONS  TO  REPLEVIN  SPECIFIC  PERSONAL  PROPERTY. 

4.  Fraud] — A  fraud  by  which  defendant  obtained  the  goods 
from  plaintiff  may  be  proved  though  not  alleged.1 

5.  Demand] — Demand  may  be  proved  though  not  alleged.3 
Proof  of  a  wrongful  taking  by  defendant  dispenses  with  the  ne- 
cessity of  evidence  of  demand  to  sustain  the  action  against  him.8 

G.  Damages] — Damages  which  are  the  natural  result  of  the 
circumstances  of  the  talking  may  be  proved  in  connection  with 
those  circumstances,  although  those  circumstances  are  not  alleged  ;4 
and  so  may  depreciation  in  value,  from  naturally  expected  cause, 
during  detention  ;5  but  special  damages  must  be  specially  alleged. 
Appraisement  under  the  statute  is  not  conclusive  evidence  of 
value.6 

7.  Declarations  and  admissions  of  former  possessor] — The 
rules  as  to  the  acts  and  declarations  of  one  under  whom  a  party 
claims  have  been  already  stated.7  Declarations  claiming8  or  dis- 
avowing ownership9  are  not  conclusive  against  the  declarant,  un- 
less other  facts  raising  an  estoppel  are  shown. 

8;  Defenses] — Defendant  may  recover  on  plaintiff's  failure  to 
prove  title  and  right  of  possession.10  A  denial  of  plaintiff's  al- 
legation of  property  and  right  of  possession  admits  evidence  of 
title  and  right  of  possession,  either  in  defendant  or  any  other  per- 
son ;n  and  defendant  may  show  such  property  in  a  third  person 
without  connecting  himself  with  it.12  The  mode  of  proving  jus- 
tification under  process  has  been  already  stated. 


1  Hunter  v.  Hudson  River  Iron  &,  Machine  Co.  20  Berb.  493 ;  Bliss  v.  Cottle,  32 
Id.  322.  For  the  mode  of  proving  fraud  or  deceit,  see  p.  626  of  this  vol.,  and  the 
chapters  on  actions  for  deceit  or  fraud,  and  on  fraud  as  a  defense. 

8  Wells  Replev.  370,  §  681,  and  see  p.  627  of  this  vol. 

8  Id.  199,  §  348.     But  not  for  the  purposes  of  damages.     Id. 

«  Wells  Replev.  311,  §  571. 

8  Id.;  Young  v.  Willet,  8  Bosw.  486. 

6  Wells  Replev.  311,  §  570.     For  the  mode  of  proving  value  and  damages,  see 
pp.  806-12.  348,  598  and  627  of  this  vol.     As  to  value  of  use,  see  Yandle  v.'lvings- 
bury,  17  Kans.  195,  s.  c.  22  Am.  R.  282 ;  Allen  v.  Fox,  51  N.  Y.  562,  overruling  4 
Lan's.  263. 

7  Pp.  11-14  and  155  of  this  vol;    Whittaker  v.  Brown,  8  Wend.  490;  Bristol  v. 
Dann,  12  Id.  142,  Worrall  v.  Parmelee,  1  N.  Y.  519;  Taylor  v.  Marshal,  14  Johns. 
204 ;  De  Wolf  v.  NVilliams,  69  N.Y.  621.   Under  the  New  York  rule,  continued  posses- 
sion of  a  chattel  is  no+  alone  such  an  act  as  renders  the  possessor's  declarations  com- 
petent under  the  rule  of  res  gestce.    Tilson  v.  Terwilliger,  56  N.  Y.  273. 

8  Heaton  v.  Findlay,  12  Penn.  St.  304. 

9  Hunt  v.  Moultrie,  1  Bosw.  531. 

10  McCurdy  v.  Brown,  1  Duer,  101. 

11  Schulenberg  v.  Harrimann,  21  Wall.  44,  59 ;  Sparks  v.  Heritage,  45  Ind.  66 ;  Timp 
v.  Dockharn,  32  Wis.  146 ;  Caldwell  v.  Bruggerman,  4  Minn.  270,  276.     And  see 
Morey  v.  Safe  Deposit  Co.  7  Abb.  Pr.  N.  8.  199,  s.  c.  39  How.  Pr.  124.     Compare 
Ontario  Bank  v.  N.  J.  Steamboat  Co.  5D  N.  Y.  510,  affi'g  5  Daly,  117. 

18  Rockwell  v,  Suunders,  19  Barb.  473,  and  cases  cited. 


CHAPTEE  XL VIII. 

ACTIONS  TO   AFFECT  THE  TITLE  OR  POSSESSION  OF  REAL 
PROPERTY. 

I.  ACTIONS  TO  RECOVER  THE  POSSESSION  OF  I.  ACTIONS  TO  RECOVER,  drc. — continued. 
REAL  PROPERTY.  (EJECTMENT.)  29.  Impeaching  deed  on   equitable 

1 .  Plaintiff's  title.  grounds. 

2.  Title  of  State.  30.  Admissions  and  declarations. 
8.  Possession  as  evidence  of  title.  81.  Recitals. 

4.  Title  by  deed.  82.  Estoppels. 

5.  —  delivery,  and  date.  33.  Former  adjudications. 

6.  —  parties.  84.  Defendant's  possession :  Ouster. 

7.  —  alterations.  85.  Mesne  profits. 

8.  —  connected  instruments.  86.  Defenses. 

9.  —  consideration.  37.  —  adverse  possession. 

10.  — oral  evidence  to  vary  or  ex-  83.  — bona  fide  purchaser. 

plain. 

11.  — boundaries.  II.  ACTIONS  TO  DETERMINE    CONFLICTING 

12.  —  deed  under  legal  or  judicial  CLAIMS. 

authority.  39.  Mode  of  proof. 

13.  —  on  execution  sale. 

14.  —  on  surrogate's  sale.  m   ACTIONS  TO  REMOVE  CLOUD  ON  TITLE. 

15.  — on  tax  sale.  40.  Mode  of  proof. 

16.  Grantor's  title. 

17    State  grunt.  T-,r     , 

18.  Landlord  and  tenant.  IV'  A,CTI°NS  °,F  FOREC?>SURf  , 

19.  Mortgagor  and  mortgagee.  JJ"  £orec  o;ure  °J  veud.or  8  hen' 

20.  Vendor  and  purchaser  *?'  *°™l°™™  °f.  ^?.r.^- 

21    Entry  Defendants    liability:    demand 

22!  Title  by  descent  or  devise.  n  *nd  default' 

23.  Dower.  44'  ^/""^ 

24.  Curtesy. 

25.  Title  under  ancient  instrument.  V.  ACTIONS  TO  REDEEM. 

26.  Lost  instrument,  and  secondary  45.  Mode  of  proof. 

evidence. 

27.  Presumed  grant.  «VI.  ACTIONS  OF  PARTITION. 

28.  Deed  void  For  adverse  possession.  46.  Mode  of  proof. 

I.     ACTIONS  TO  RECOVER    THE    POSSESSION    OF    REAL    PROPERTY. 

(EJECTMENT.) 

1.  Plaintiffs  title.]  —  Plaintiff  can  only  recover  on  the 
strength  of  his  own  title.  Proof  of  a  cloud  on  title  is  not 
enough.1  The  failure  of  defendant  to  show  title  can  not  avail.2 

Under  the  new  procedure  plaintiff  may  recover  on  an  equitable 
title.3  He  may  prove  two  titles,  although  either,  if  established, 


1  Pixley  v.  Rockwell,  1  Sheld.  Buff.  Super.  Ct.  267. 

9  Brady  v.  Hennion,  8  Bosw.  528 ;  Tyl.  Ej.  72 ;  "Watts  v.  Lindsey,  7  Wheat. 
158. 

8  Phillips  v.  Gorham,  17  N.  Y.  270;  Lattin  v.  McCarty,  41  N.  Y.  107,  rev'g  8 
Abb.  Pr.  225,  8.  c.  17  How.  Pr.  239;  Sheehan  v.  Hamilton,  4  Abb.  Ct.  App.  Dec.  211. 
Otherwise  at  common  law.  Fenn  v.  Holme,  21  How.  U.  S.  481. 

[691] 


692  ACTIONS  AFFECTING  EEAL  PROPERTY. 

would  be  enough.1    A  variance  in  alleging  the  nature  of  the  title,' 
or  the  proportion  of  plaintiff's  interest,  is  not  fatal.3 

2.  Title  of  State. — In  ejectment  by  the  State,  evidence  that 
the  premises  were  vacant  and  wholly  unoccupied  at  a  time  within 
forty  years  before  action  brought,  and  that  defendant  was  in  pos- 
session when  the  action  was  brought,  is  prima  facie  sufficient,4  if 
it  does  not   appear  that   the  title  of  the  State  was  ever  di- 
vested.5 

3.  \Possession  as  evidence  of  title.'] — Mere  general  possession  of 
land,  unexplained,  is  prima,  jade  evidence  of  ownership,8  in  the 
absence  of  any  other  evidence  as  to  title ;   especially  if  coupled 
with  actual  improvement.7    But  to  raise  a  presumption  of  any 
particular  kind  of  title  or  degree  of  interest,  the  evidence  of  pos- 
session must  be  coupled  with  evidence  of  a  claim  of  title.8  A  wit- 
ness may  be  allowed  in  the  first  instance  to  testify  directly  to  the 
fact  of  possession,9  if  he  can  do  so  positively — not  as  a  matter  of 
opinion, — subject,  of  course  to  cross-examination  on  the  details. 
Evidence  that  a  place  was  generally  known  by  the  name  of  a  man 
is  competent  in  aid  of  other  evidence  of  his  possession.10    "When 
no  legal  title  is  shown,  the  party  showing  the  prior  possession 
is  held  to  have  the  better  right.11      Mere    possession  may  be 
rebutted  by  parol  evidence  of  abandonment,1*  but  the  evidence 
should  be  clear.13 

When  legal  title  to  unoccupied  land  is  shown,  possession  is 
presumed  to  be  in  him  who  is  shown  to  have  the  title.14  This  is 
constructive  possession,  and  does  not  avail  where  actual  posses- 
sion must  be  shown.15 


I  Enders  v.  Sternbergh,  2  Abb.  Ct.  App.  Dec.  31,  rev'g  52  Barb.  222. 

9  Chapman  v.  Delaware,  <fec.  R.  R.  Co.  3  Lans.  261.      Contra,  Patterson  v.  Kev- 
Btone,  &c.  Co.  30  Cal.  360,  364.     Compare  Cruger  v.  McLaury,  41  N.  Y.  219,  affii'g 
51  Barb.  642. 

3  Lewis  v.  McFarland,  9  Cranch,  161 ;  Hinman  v.  Booth,  21  Wend.  266,  267 ;  Ryerss 
V.  Wheeler,  22  Id.  148.    Contra,  Gilletv.  Stanley.  1  Hill,  121;  Cole  v.  Irvine,  6  Id.  634. 

4  Wendell  v.  Jackson,  8  Wend.  183,  affi'g  5  Id.  142. 

5  See  People  v.  Snyder,  61  Barb.  689,  affi'd  in  41  N.  Y.  397. 

6  COWEN,  J.  Northrop  v.  Wright,  24  Wend.  221,  rev'd  on  other  grounds  in  7  Hill, 
476 ;  Hill  v.  Draper,  10  Barb.  454.     Contra,  Delancey  v.  McKeen,  1  Wash.  C.  Ct.  354. 
But  as  against  a  naked  trespasser,  it  is  agreed  that  possession,  is  enough.     Burt  v. 
Panjaud,  U.  S.  Supreme  Ct.  99  U.  S.  (9  Otto),  ]  80. 

1  Sherry  v.  Frecking,  4  Duer,  452 ;  Payment  of  taxes  and  survey,  <fcc.  not  evi- 
dence of  possession.  Thompson  v.  Burhans,  61  N.  Y.  52,  rev'g  61  Barb.  260.  Contra, 
Hodgdon  v.  Shannon,  44  N.  H.  672. 

Unsuccessful  attempt  to  interrupt  possession  strengthens  the  presumption. 
Sargent  v.  Seagrave,  2  Curt.  C.  Ct.  563. 

8  Ricard  v.  Williams,  7  Wheat.  59,  105. 

9  Where  a  witness  tes'ifies  on  the  direct-examination  that  a  party  had  possession 
of  real  estate  at  a  specified  time,  the  evidence  is  admissible  ;   the  facts  constituting 
possession  may  be  obtained  from  him  on  cross-examination.     Parsons  v.  Brown,  15 
Barb.  N.  Y.  590.     Contra,  Thistle  v.  Frostbnrg  Coal  Co.  10  Md.  129. 

10  Russell  v.  Jackson,  22  Wend.  276,  affi'g  4  Id.  643. 

II  Tyl.  Ej.  72,  204. 

"  Onderdonk  v.  Lord,  Hill  <fe  D.  Supp.  129. 

13  Corning  v.  Troy  Iron  <fe  Nail  Factory,  39  Barb.  311,  affi'd  in  40  N.  Y.  191. 

14  Florence  v.  Hopkins,  46  N.  Y.  182. 

15  Paragraph  38.      Constructive  possession    not  applicable  to  large   tracts  not 


EJECTMENT.  693 

4.  Title  by  deed.~\ — To  prove  title  by  deed,  plaintiff  must  show  a 
deed  which  satisfies  the  requirements  of  the  law  of  the  State 
where  the  land  lies.1  The  deed  may  be  proved  by  producing 
either  the  original,2  or  the  record,  or  a  certified  copy  from  the 
record.3  A  certificate  which  appears,  on  its  face,  to  be  in  con- 
formity with  the  statute,  is  presumptive  proof  of  its  own  genuine- 
ness ;  and  where  it  describes  the  proper  officer  acting  in  the 
proper  place,  it  is  taken  as  proof  both  of  his  character  and  local 
jurisdiction.4  A  record  or  certified  copy,  which  by  reason  of  de- 
fect is  not  competent  as  such,  may,  nevertheless,  be  available  as 
secondary  evidence  on  proof  of  the  loss  of  the  original.5  A  sub- 
stantial compliance  of  the  certificate  with  the  statute  is  suffi- 
cient.9 

In  aid  of  a  certificate  of  acknowledgment,  reference  may  be 
had  to  any  part  of  the  instrument  itself.7  An  error  in  venue  may 

manageable  according  to  the  custom  and  business  of  the  country.  Thompson  v. 
Burhans,  61  N.  Y.  52,  rev'g  61  Barb.  260. 

1  Compliance  with  the  stamp  act  need  not  be  proved  in  a  State  court.  See  p.  453 
of  this  vol. 

8  For  mode  of  proof  of  handwriting,  see  pp.  392  to  398  of  this  voL,  and  of  execu- 
tion in  other  respects,  pp.  503  to  507. 

3  Chamberlain  v.  Bradley,  101  Mass.  188,  8.  c.  3  Am.  R.  331. 

The  mode  of  proof  by  the  record  or  certified  copy  varies  according  to  the  local 
statutes,  which  should  be  consulted.  Under  the  New  York  statutes  and  many  othera 
the  following  rules  apply.  The  deed  must  be  either  acknowledged  or  witnessed. 
Roggen  v.  Avery,  63  Barb.  65.  Compare  Fryer  v.  Rockfeller,  63  N.  Y.  268. 

If  the  oriyhial  ia  offered  in  evidence,  a  certificate  of  acknowledgment,  or  of  proof 
by  living  subscribing  witness  (even  though  made  after  action  brought,  p.  6  of  this 
vol.)  is  primary  evidence  (see  Clark  v.  Nixon,  5  Hill,  36),  but  not  conclusive  (1  N.  Y. 
R.  S.  759  [2  Id.  6  ed.  1146],  §  17;  8.  P.  8  Abb.  N.  Y.  Dig.  new  ed.  155,  pi.  '2295. 
Contra,  in  some  States,  see  p.  175  of  this  vol.);  but  a  county  clerk's  certificate  is 
necessary  to  read  the  original  in  evidence  in  any  other  county  than  that  in  which 
the  officer  taking  the  acknowle  Igment,  <fcc.,  resided  (1  N.  Y.  R.  S.  759  [2  Id.  6  ed.  1146J, 
§  18  ;  Wood  v.  \Veiant,  1  N.  Y.  77).  If  a  certificate  of  proof  by  a  subscribing  witness  is 
relied  on,  it  will  be  nullified  by  evidence  that  the  witness  was  interested  or  incompe- 
tent (1  N.  Y.  R.  S.  759  [2  Id.  6  ed.  1146],  §  17). 

A  transcript  or  certified  copy  of  the  record  if  produced,  duly  certified  by  the  re- 
cording officer  under  seal  (1  R.  S.760  [2  Id.  6  ed.  1147],  §  26),  ia  equally  competent  aa 
the  original  instrument,  provided  the  acknowledgment  or  proof  was  sufficient  to  en- 
title to  re-cord  ;  otherwise,  not  (Carpenter  v.  Dexter,  8  Wall.  513).  If  the  proof  was 
by  evidence  of  handwriting  after  death  of  the  subscribing  witnesses,  the  original  id 
the  only  primary  evidence,  and  must  be  produced  and  duly  proved  at  the  trial,  or 
accounted  for,  and  secondary  evidence  given  (1  N.  Y.  R.  S.  761  [2  Id.  6  ed.  1150], 
§§  3<'-33. 

The  manner  in  which  the  record  may  be  produced  is  defined  by  N.  Y.  Code  Ciy. 
Pro.  §  866.  Tho  omission,  from  the  record,  of  the  memorandum  of  alterations  before 
execution  is  relevant  to  the  question  of  alteration  after  execution  (Hager  v.  Ilager, 
88  Barb.  92,  98). 

Where  the  acknowledgment  and  date  of  registry  of  a  deed  nro  in  dispute,  proving 
it  by  a  certified  copy  without  producing  or  accounting  for  the  original,  is  a  circum- 
stance of  suspicion  which  is  a  proper  subject  of  comment  (5  Wall.  85). 

4  Thurman  v.  Cameron,  24  Wend.  87,  and  cas.  cit. 

5  Jackson  v.  Rice,  3  Wend.  180,  182. 

*  Raverty  v.  Fridge,  3  McLean,  245,  and  cas.  cit. ;  Carpenter  v.  Dexter,  8  Wall. 
613. 

1  Carpenter  v.  Dexter,  8  Wall.  513  ;  s.  r.  12  Serg.  &  11.  48.  •  For  instance,  a 
defect  in  the  venue  of  the  cer.ificate  may  bo  supplied  by  a  presumption  drawn 


694:  ACTIONS  AFFECTING   REAL  PROPERTY. 

be  cured  by  oral  evidence.1  Evidence  of  the  official  character  of 
the  certifying  officer  need  not  be  added  to  his  certificate,  unless 
required  by  the  statute.3 

5.  — delivery  and  dateJ] — Under  a  denial,  the  burden  is  on 
plaintiff  to  prove  delivery  ; 3  but  an  admission  of  execution  with- 
out more  usually  admits  delivery.4  In  addition  to  what  has  al- 
ready been  said,5  possession  by  the  grantee,6  and  the  fact  of  record,7 
are  each  competent  and  sufficient  prim  a  facie  evidence  of  deliv- 
ery, as  against  the  grantor.8  Subsequent  conduct  of  the  parties  to 
the  action  recognizing  the  title  as  transferred,  are  competent  to 
show  ratification  of  a  delivery  shown  only  by  record.9  The  stat- 
utory acknowledgment  or  proof  and  the  recording  of  a  deed  are 
not  conclusive  evidence  of  delivery  or  acceptance.  Nor  are  they 
sufficient  alone  against  the  absolute  testimony  of  the  supposed 
grantee  denying  delivery  and  acceptance.10 

The  rule  excluding  oral  evidence  to  contradict  a  writing  does 
not  exclude  oral  evidence  of  delivery  or  non-delivery  of  the 
writing ;  u  but  it  does  exclude  oral  evidence  that  delivery  to  the 
party  himself  u  was  on  an  oral  condition  nullifying  the  delivery.13 

The  time  of  delivery  is  the  time  at  which  the  deed  takes  effect 
(unless  the  court,  on  equitable  grounds,  give  it  relation  back  to 


from  a  statement  of  the  place  of  execution  in  the  title  or  testificnndum  clause, 
of  the  deed.  Carpenter  v.  Dexter  (above);  Brooks  v.  Chaplin,  3  Vt.  281.  And 
the  omission  to  certify  that  the  person  making  the  acknowledgment  was  known  to 
the  officer  to  be  the  one  who  executed  the  deed,  by  reference  to  the  fact  that 
the  officer's  name  (without  addition)  appears  as  subscribing  witness  under  a  clause 
stating  that  the  deed  was  "  signed,"  <fec.,  in  his  presence.  Carpenter  v.  Dexter 
(above);  and  see  Luffborough  v.  Parker,  12  Serg.  <fe  R.  48. 

1  Angier  v.  Schieffelin,  72  Penn  St.  106,  s.  c.  13  Am.  R.  659. 

8  Secrist  v.  Green,  3  Wall.  744,  760 ;   Carpenter  v.  Dexter  (above). 

8  Burkholder  v.  Casad,  47  Ind.  418. 

4  See  Robert  v.  Good,  36  N.  Y.  408,  affi'g  2  Daly,  64. 

8  Pages  607  and  608  of  this  vol. 

'  Flagg  v.  Mann,  2  Sumn.  486,  609 ;  Buckley  v.  Carlton,  6  McLean,  125. 

7  Chamberlain  v.  Bradley,  101  Mass.  188,  s.  c.  3  Am.  R.  331;  Kille  v.  Ege,  79 
Penn.  St.  15 ;  Younge  T.  Guilbeau,  3  >Vall.  636.     Even  though  at  the  grantor's  re- 
quest.   Bulkley  v.  Bnffington,  5  McLean,  457.  • 

8  See  Parmelee  v.  Simpson,  5  Wall.  81,  85. 

»  Gould  v.  Day,  94  U.  S.  (4  Otto),  405.     As  to  the  declarations  of  a  former  owner, 
see  paragraph  30,  and  p.  405  of  this  vol. 

10  Jackson  v.  Perkins,  2  Wend.  308  ;  Younge  v.  Guilbeau,  3  Wall.  636,  641.     For 
other  cases  on  presumption  of  delivery,  eee  Rogers  v.  Carey,  47  Mo.  232,  s.  c.  4  Aui. 
R.  322. 

11  Roberts  ads.  Jackson,  1  Wend.  478,  480 ;  Stephens  v.  Buffalo  <t  N.  Y.  City  R.  R. 
Co.  20  Barb.  332.     To  disprove  acceptance  of  a  deed  of  trust,  an  unsealed  declaration 
by  the  intended  trustee  (a  stranger  to  the  action)  that  immediately  on  receiving  notice 
of  it  he  did  refuse  to  accept  and  had  never  acted  (the  paper  being  proved  and  re- 
corded), is  competent  as  a  verbal  act  tending  to  show  non-acceptance.     Armstrong  v. 
Merrill,  14  Wall.  120,139.     This  was  held,  although  the  declaration  bore  date  11  years 
after  tho  date  of  the  deed  of  trust,  and  was  proved  nearly  50  and  recorded  more  than 
60  years  after  the  date  of  tho  deed  of  trust. 

14  See  as  to  delivery  t~>  attorney  or  agent,  Ford  v.  James,  2  Abb.  Ct.  App.  Dec. 
169;  Watkins  v.  Nash,  L.  R.  20  Eq.  Cas.  262,  s.  c.  13  Moak  Eng.  R.  781. 
18  Worrall  v.  Munn,  5  N.  Y.  229,  and  caa.  cit. 


EJECTMENT.  695 

an  earlier  date  *) ;  and,  in  the  absence  of  other  evidence,  the  date 
written  in2  an  attested  or  acknowledged  instrument3  is  presump- 
tively the  date  of  delivery,4  notwithstanding  its  acknowledgment,8 
or  its  record 6  is  of  later  date. 

If  the  deed  is  shown  to  have  been  antedated  (and  the  fact  that 
it  remained  in  the  grantor's  hands  after  the  day  of  its  date  is  suf- 
ficient evidence  of  this7),  the  presumption  is  removed,  and  the 
burden  is  on  the  party  claiming  under  it  to  show  the  date  of 
delivery,  if  the  validity  or  effect  of  the  deed  depends  on  that.8 
Slight  evidence  drawn  from  the  transaction  itself  may  be  suffi- 
cient for  this  purpose.9 

6.  — parties.10] — In  addition  to  what  has  been  said  as  to  the 
proof  of  identity,11  it  should  be  added  here,  that  if  there  are  two 
persons,  father  and  son,  of  the  same  name,  the  use  of  the  name 
without  addition  means  presumptively,  in  absence  of  other  evi- 
dence, the  father;13  but  this  presumption  may  be  rebutted  by 
showing  that  the  parties  intended  the  son  by  the  name  in  the 
deed.13  A  difference  in  surname,  too  great  to  be  disregarded  as 
involving  no  substantial  difference  in  sound,  cannot  be  cured  by 
parol  evidence,14  unless  the  evidence  is  sufficient  for  relief  in 
equity.15  Omission  of  middle  name  is  not  material.16 

1  County  of  Calhoun  v.  American  Emigrant  Co.  93  U.  S.  (3  Otto),  124,  127. 

1  Or  a  later  date  inscribed  by  the  grantor  upon  the  stamp  for  cancellation.  Y^n 
•  Rensselaer  v.  Vickery,  3  Lans.  57. 

s  Otherwise  of  a  deed  in  fee,  unattested  and  unacknowledged.  Center  v.  Morrison, 
31  Barb.  155. 

4  Robinson  v.  Wheeler,  25  N.  Y.  262,  and  cases  cited ;  People  v.  Snyder,  41  N.  Y. 
897,  affi'g  51  Barb.  689. 

8  People  v.  Snyder  (ab'ove). 

*  Robinson  v.  Wheeler  (above). 

7  Harris  v.  Norton,  16  Barb.  264. 

*  Costigan  v.  Gould,  6  Den.  290. 

9  McOowan  v.  Smith,  44  Barb.  232 ;  Jackson  v.  Schoonmaker,  2  Johns.  230. 
Whether  the  date  in  a  deed  by  an  entire  stranger  to  the  parties  is  sufficient  when 

the  competency  of  the  instrument  in  evidence  depends  on  the  time  of  tho  delivery, 
compare  with  these  cases,  pp.  13  and  14  of  this  vol. 

">  Whether  showing  that  the  grantee's  name  was  not  inserted  in  the  blank  until 
after  attestation  and  acknowledgment  and  parting  with  possession  by  the  grantor, 
affects  the  validity  of  the  deed,  aee,  for  the  affirmative,  Upton  v.  Archer,  41  Cal.  85,  s.  c. 
10  Am.  R.  266 ;  Moore  v  Bickham,  4  Binn.  (Pa.)  1 ;  U.  S.  v.  Nelson,  2  Brock.  6  » ;  Coit 
v.  Starkweather,  8  Conn.  289:  Davenport  v.  Sleight,  2  Dev.  <fe  B.  (N.  C.)  L.  381 ; 
Chase  v.  Palmer,  29  111.  306 ;  Burns  V.  Lynde,  6  Allen  (Mass.),  805  ;  Basford  v.  Pc.«ir- 
Bon,  9  Id.  887 ;  Drury  v.  Foster,  2  Wall.  24  ;  2  Parsons  on  Cont.  citing  Hibblcwhite 
v.  McMorono,  6  M.  <fc  W,  200  ;  Douthitt  v.  Stinson,  63  Mo.  208  ;  and  for  the  nfyati>«, 
Vnn  Etta  v.  Evenson,  28  Wis.  33.  s.  c.  9  Am.  R.  486;  Owen  v.  Perry,  25  Iowa,  412; 
Pence  v.  Arbuckle,  22  Minn.  417;  McNab  v.  Young,  81  111.  11;  Heminenwuy  v. 
Unlock,  50  How.  Pr.  88 ;  Vanderbilt  v.  Vanderbi  t,  54  Id.  250;  nnd  see  Field. v. 
Stagir,  62  Mo.  634,  s.  c.  14  Am.  R.  435 ;  Preston  v.  Hull,  23  Graft.  (Va.)  600. 

»  Page  101  of  this  vol. 

12  Padgett  v.  Lawrence,  10  Paige,  170 ;  Stevens  v.  West,  6  Jones  (N.  C.)  L.  49. 

13  Padgett  v.  Lawrence  (above). 

14  Jackson  v.  Hart,  12  Johns.  77;  and  see  Jackson  v.  Boneham,  15  Id.  226;  Bab- 
cock  v.  Pettibonc,  12  Blatchf.  354. 

15  Sec  p.  512,  and  Chapter  on  REFORMATION  for  MISTAKES,  AQ 

16  Games  v.  Dunn,  14  Pet.  322. 


C96  ACTIONS  AFFECTING  REAL  PROPERTY. 

Oral  evidence  is  competent  to  show  which  was  intended, 
where  two  persons  answer  the  same  name ; l  or  where  two  names, 
having  sufficient  resemblance,  appear,  and  it  does  not  appear  that 
there  were  two  persons  corresponding ;  but  if  it  appear  that  there 
were  two  such  persons,  oral  evidence  is  not  competent  to  show 
that  one  was  intended  by  the  name  of  the  other.3 

To  admit  a  deed  purporting  to  be  executed  by  the  attorney 
of  the  party  to  be  bound,  there  must  be  some  evidence  of  his 
authority,3  but  it  may  be  presumed  from  a  recital,  in  the  deed,  of 
a  power  of  attorney  and  from  long  possession  under  the  deed.4 
Where  a  deed  is  executed  under  a  power,  and  so  far  as  appears 
from  the  two  instruments  was  executed  agreeably  to  it,  the 
burden  is  upon  him  assailing  the  deed  to  show  that  conditions 
specified  in  the  power  were  not  performed.5 

7.  —  alterations.'] — An  unexplained  alteration  appearing  on  the 
face  of  an  instrument  does  not  render  the  deed  incompetent  as  evi- 
dence of  a  transfer  of  title.  It  is  not  error  to  let  the  instrument  go 
to  the  jury.6  In  so  far  as  a  deed  operates  as  a  present  transfer  of  title, 
an  alteration,  though  fraudulently  made  by  the  grantee  subsequent 
to  delivery,  cannot  operate  as  a  re-conveyance  to  divest  the  title 
once  vested  ;  but,  if  at  all,  by  way  of  estoppel,  or  as  having  de- 
stroyed the  evidence  necessary  to  manifest  the  transfer.  On  the 
other  hand,  so  far  as  the  deed  is  executory, — as  for  instance  in 
case  of  a  covenant  of  warranty  relied  on  to  pass,  by  way  of  estop- 
pel, an  after  acquired  title, — a  material  alteration  fraudulently 
made  by  the  grantee,  annuls  the  covenant  itself  thereafter.7 

Oral  evidence  is  competent  alike  to  prove  or  to  explain  an 
alteration  in  a  deed ;  and,  notwithstanding  the  statute  of  frauds 
to  prove  oral  assent  to  an  alteration ; 8  and,  for  these  purposes, 
another  than  the  subscribing  witness  is  competent.9 

1  Jackson  v.  Goes,  13  Johns.  618. 
*  Jackson  v.  Hart,  12  Johns.  77. 

3  Denn  v.  Reid,  10  Pet.  624. 

4  Doe  v.  Phelps,  9  Johns.  169 ;    Doe  v.  Campbell,  10  Id.  475  ;  and  see  Forman  v. 
Crutcher,  2  A.  K.  Marsh  (Ky.)  69.     Possession  is  essential.     McKinnon  v.  Bliss,  21 
N.  Y.  206. 

6  Clements  v.  Machebceuf,  2  U.  S.  92  (Otto),  418.  and  cas.  cit.  Compare  Morrill 
V.  Cone,  22  How.  U.  S.  75. 

6  Little  v.  Herndon,  10  Wall.  26,  31  (in  this  case  cancellation  of  one  number 
and  interlineation  of  another  in  the  description  of  premises  in  a  deed),  NELSO.V,  J. ; 
and   see   page   406   of  this  vol.     After  great  conflict  of  opinion,  the  •weight  of 
recent   authority   is  in   harmony   with   sound   general  principles;    and,    without 
denying   that   an   alteration   may  be  so  suspicious   as  to  require  the  exclusion  of 
the  instrument  if  offered  without  explanation,   ordinarily  submits  the  instrument 
to  the  jury   with   whatever   explanation  may  be   afforded   by   the  contents  and 
appearance  of   the  instrument  itself,  and  by   the   extrinsic  evidence,  if    any,  ad- 
duced, leaving  it  for  the  jury  to  say  whether  the  explanation  is  satisfactory.     See 
Maybee  v.  Sniffen,  2  E.  D.  Smith,  1,  s.  c.  10  N.  Y.  Leg.  Obs.  13;    Herrick  v.  Malin, 
22  Wend.  387,  393;  Waring  v.  Smyth,  2  Barb.  Ch.  119,  133;    Smith  v.  McGowan,  8 
Barb.  404,  407;  Jackson  v.  Osbotn,  2  Wend.  555.  559,  1  Whart.  Ev.  §629. 

7  See  opinion  of  CLIFFORD,  J.,  in  Smith  v.  U.  S.  2  Wall.  219,  231,  and  cas.  cit,. 
and  9  Cent.  L.  J.  173,  note. 

8  Speake  v.  United  States,  9  Cranch,  28, 

9  Penny  v.  Corwithe,  18  Johns.  499. 


EJECTMENT.  697 

8.  —  connected  instruments.'] — Documents  referred  to  in  the 
deed,  and  material  to  the  title1   should  be  produced,  or   their 
absence  accounted  for  and  secondary  evidence  given.3    In  case 
of  loss,  long  possession,  or  even  the  terms,3  or  character,  may 
enable  the  court  to  presume  the  contents  and  effect  of  the  lost 
instrument.4    A  document  made,  by  reference,  part  of  a  deed 
under  which  both  parties  claim,  is  admissible  on  proof  of  identi- 
ty, without  further  proof  of  its  execution.5    A  map  referred  to  as 
recorded  may  be  resorted  to,  to  identify  the  premises,  although 
the  record  was  illegal.6    If  more  than  one  map  answering  the 
reference  exists,  oral  evidence  to  show  what  was  intended,  is 
competent.7    A  reference  to  premises  as  those  previously  con- 
veyed to  the  grantor  by  another  person,  does  not  exclude  oral 
evidence  to  identify  the  land,  but  does  riot  allow  of  oral  evidence 
of  the  parties'  intention.8 

9.  —  consideration.'] — The  consideration  clause  is  not  within 
the  rule  by  which  written  evidence  excludes  oral  ;9  but  the  non- 
payment of  the  consideration  stated,  or  its  nominal  character,  is 
not  relevant  against  the  party  claiming  under  the  deed,10  unless 
in  connection  with  evidence  showing  equitable  grounds  for  avoid- 
ing the  transfer,  for  without  such  proof  the  grantor  or  those 
claiming  under  him  cannot  contradict  the  recital  of  consideration.11 
Hence  the  party  claiming  under  a  deed  acknowledging  a  con- 
sideration need  not,  in  the  first  instance,  give  any  evidence  of  con- 
sideration12 unless  he  claims  to  be  protected  as  bonafide  purchaser 
for  value ; w  and  even  then  the  acknowledgment  in  the  deed  of  the 
receipt  of  the  purchase  money  is  sufficient  prima facie  evidence 
of  its  payment  to  bring  him  within  the  protection  of  the  record- 
ing act,14  though  not  to  enable  him  to  hold  under  a  fraud  com- 


1  Otherwise  of  an  instrument  merely  directing  the  future  disposition  of  the  prop, 
erty.     Duke  of  Cumberland  v.  Graves,  9  Barb.  6U5. 

2  Jackson  v.  Parkhurst,  4  Wend.  369  ;  s.  P.  in  the  case  of  the  bond  recited  in  the 
mortgage.     See  paragraph  41,  on  Foreclosure. 

3  Jackson  v.  Lamb,  7  Cow.  431. 

4  McBurney  v.  Cutler,  18  Barb.  203. 

8  See  Crawford  v.  Loper,  25  Barb.  449 ;  Smith  v.  If.  Y.  Cent.  R.  R.  Co.  4  Abb. 
Ct.  App.  Dec.  262. 

«Koonanv.  Lee,  2  Black,  499,  504.  Compare  Cal  dwell  v.  Center,  30Cal.  639. 
As  to  whether  the  recorded  plat  referred  to  is  conclusive  against  proving  the  original 
plat  and  a  mistake  in  the  record,  see  Jones  v.  Johnston,  18  How.  U.  S.  150. 

1  Slosson  v.  Hall,  17  Minn.  95. 

8  Jackson  v.  Parkhurst  (above);  and  see  Reed  v.  McCourt,  41  If.  Y.  435. 

9  Adams  v.  Hull,  2  Don.  306. 

10  Meaking*  v.  Cromwell,  2  Samlf.   512;    Meriam  v.   Ilarsen,  2  Barb.   Ch.  232, 
affi'g  4  K.iw.  Ch.  70;  Childs  v.  Baruum,  11  Barb.  14,  affi'g  1  Sandf.  58;  8.  p.  Wood  v. 
Chapin.  13  N.  Y.  509. 

11  Grout  v.  Townsend,  2  Den.  336,  affi'g  2  Hill,  554. 
18  Clarke  v.  Davenport,  1  Bosw.  95. 

13  See  paragraph  37. 

14  Wood  v.  Chapin,  in  N.  Y.  509;  Bolton  v.  Jacks,  6  Robt.  166,  234.    Compare 
Ring  v.   Steele.  4  Abb.  Ct.  App.  Dec.  68  ;  Wood  v.  McClughiin,  4  Supm.  Ct.  (T.  «fe 
C.)  420,  s.  c.  2  Hun,  150. 


C98  ACTIONS  AFFECTING  REAL  PROPERTY. 

mitted  by  his  grantor.1  Extrinsic  evidence  of  consideration8  is 
competent  in  support  of  a  deed  ;3  and  for  this  purpose  the  actual 
consideration,  whether  pecuniary,4  or  of  blood,5  or  marriage,6  may 
be  proved  by  extrinsic  evidence,  although  the  deed  express  a 
different  consideration,7  or  a  nominal  consideration,8  or  none.9 

10.  — oral  evidence  to  vary  or  explain  writings.'] — Tn  applica- 
tion of  general  principles  already  stated,  it  is  to  be  observed  that 
a  conveyance  of  real  property  is  not  merely  the  voluntarily 
chosen  expression  of  the  intention  of  the  parties,  and  therefore, 
as  between  them  and  those  claiming  under  them,  presumably  the 
final  definition  of  their  intention,10  but  that  it  is  also  by  statute 
the  only  sufficient  means  of  a  voluntary  transfer ; u  and  therefore 
an  intent  to  transfer  real  property  cannot  be  imported  into  the 
deed  by  oral  evidence ;  but  oral  evidence  can  only  be  used  as  a 
light  to  enable  the  court  to  read  what  is  in  the  deed.12  Hence,  to 
enable  the  court  to  understand  what  was  intended,  but  not  to 
contradict  what  is  unambiguously  expressed,13  oral  evidence  is 
competent  to  identify,14  locate15  and  apply  the  description.16  The 
long  continued  and  uniform  acts  of  the  parties,  in  case  of  am- 
biguity (but  not  otherwise17)  may  show  that  a  deed  was  intended 


I  Bolton  v.  Jacks  (above);  Lloyd  v.  Lynch,  28  Penn.  St.  419. 
s  See  other  cases  in  Chapter  LI. 

*  See  paragraph  37. 

4  Hinde  v.  Longworth,  11  Wheat.  199  ;  Jenkins  v.  Pve,  12  Pet.  241. 

6  Goodell  v.  Pierce,  2  Hill,  659;   and  see  Loeschigk  v.  Hatfield,  61  N.  T.  660, 
affi'g  5  Robt.  26,  s.  c.  4  Abb.  Pr.  N.  S.  210. 

*  Sec  Roberts  v.  Roberts,  22  Wend.  140. 

7  Bank  of  the  United  States  v.  Housman,   6  Paige,  626 ;  Hinde  v.  Longworth 
(above). 

8  Jenkins  v.  Pye  (above). 

»  Goodell  v.  Pierce,  2  Hill,  659. 

10  For  the  limits  and  application  of  this  principle  see  pp.  608,  294,  Ac.  and  483,  <fec. 
of  this  vol. 

II  1  N.  Y.  R.  S.  73*.  §  137;  2  Id.  134  §§  6-9. 

1J  Drew  v.  Swift,  46  N.  Y.  204 ;  Tymason  v.  Bates,  14  Wend.  671,  rev'g  13  Id. 
800;  Bartlett  v.  Judd,  21  N.  Y.  200,  affi'g  23  Barb.  262;  Stanley  v.  Green,  12  Cal. 
148,  162;  Purkiss  v.  Benson,  28  Mich.  538;  Mott  v.  Richtmyer,  67  N.  Y.  49.  For 
fuller  discussion  of  this  principle  see  p.  129,  <fec.  of  this  vol. 

13  Drew  v.  Swift,  46  N.  Y.  204,  and  cas.  cit.     Thus  oral  evidence,  that  the  word 
"  degree "  should  be  read  "  perches,"  is  not  admissible.     Clarke  v.  Lancaster,  36 
Md.  196,  s.  c.  11  Am.  R.  486. 

14  See  paragraph  8 ;  Parks  v.  Moore,  13  Vt  183  ;  and  compare  Doe  d.  Freeland  v. 
Bart,  1  T.  R.  701,  with  Doe  d.  Norton  v.  Webster,  12  A.  &  E.  442,  450. 

15  McNitt  v.  Turner,  16  Wall.  852, 364.     The  deed  is  not  admissible  if  the  description 
of  premises  is  incapable  of  affording  the  clue  to  their  identification,  but  if  there  be  a 
reference  to  extrinsic  documents  or  acts  for  the  identification,  the  deed  is  admissible, 
subject  to  the  subsequent  production  of  the  necessary  evidence  (Deery  v.  Cray,  10 
Wall.  263);  and  the  production  of  the  documents  or  evidence  of  the  acts  referred  to 
in  the  deed  is  not  always  essential,  but  an  actual  boundary  long  acquiesced  in,  the 
deed  being  ancient  may  be  enough.     Ib. 

16  Blake  v.  Doherty,  5  Wheat.  859. 

11  Unless  for  a  length  of  time  sufficient  to  give  title  by  adverse  possession,  or  un- 
less there  is  an  estoppel.    Emerick  v  Kohler,  29  Barb.  165.    Title  cannot  be  divested 
by  estoppel  in  pais.     Babcock  v.  Utter,  1  Abb.  Ct.  App.  Dec.  27.     Whether  an  es- 
toppel arises  from  matter  of  description,  doubted :  it  does  not  from  uncertain  matter. 
Edmonstou  v.  Edmonston,  13  Hun,  133,  136. 


EJECTMENT.  699 

as  a  conveyance,  *  and  the  boundaries  intended.2  ^Vithin  these 
limits,  the  rule  excluding  oral  evidence,  applies  alike  to  prior  con- 
temporaneous arid  subsequent  declarations. 

Historical  works,  books  of  science  or  art,  and  published  maps 
or  charts,  when  made  by  persons  indifferent  between  the  parties, 
are  primary  evidence  of  facts  of  general  notoriety  and  interest ; 
but  they  weigh  only  as  hearsay,  against  testimony  of  witnesses  to 
facts  within  their  memory.3  Maps  and  diagrams  necessary  or  use- 
ful for  the  understanding  of  testimony  may  be  put  in  evidence  on 
proof  of  their  correctness,  although  prepared  for  the  purpose  of 
the  trial.4 

11.  —  boundaries.'] — A  variance  in  the  boundaries  proved 
from  those  alleged,  if  it  has  not  misled,  should  be  cured  by  amend- 
ment.5 The  rule  that  fixed  and  known  monuments  and  bounda- 
ries control  other  designations,  is  only  a  natural  presumption  or- 
dinarily arising  from  the  terms  of  the  whole  description.  Official 
surveys,  properly  authenticated,7  are  prima  facie  evidence  of 
their  own  correctness.8  Evidence  of  the  surveyor's  declarations, 
contradicting  his  official  return,  are  not  evidence  while  he  is  liv- 
ing.9 The  notes  of  the  official  surveyor  are  competent  evidence  as 
to  those  objects  which,  in  the  discharge  of  his  duty,  he  ought  to 
have  ascertained — such  as  the  lines  and  monuments — and  received 
as  a  part  of  the  res  gestce;  but  not  of  anything  el'se — for  instance, 
possession.10  Declarations  of  a  surveyor  employed  to  run  a  bound- 
ary, if  made  in  connection  with  his  work,  and  in  reference  to  it,  are 
admissible  in  evidence  after  his  death,  against  the  party  who  em- 
ployed him.11  A  surveyor,  as  an  expert  may  testify  to  nis  opinion 
as  to  matters  of  fact  requiring  special  knowledge,12  but  not  as  to 
the  construction  or  effect  of  the  deed.13  Practical  acquiescence 


1  Steinback  v.  Stewart,  11  "Wall.  666,  676. 
*  Cavazos  v.  Trevino,  6  Wall.  773. 

3  Missouri  v.  Kentucky,  11  Wall.  395,  410. 

4  Curtiss  v.  Ayraulfc,  8  Hun,  487,  490,  and  cas.  cit. 
B  Russell  v.  Conn.  20  N.  Y.  81. 

«  Baldwin  v.  Brown,  16  N.  Y.  359,  361.  See,  also,  pages  669,  671,  and  726,  of 
this  vol. 

I  People  v.  Denison,  17  Wend.  312. 

8  Conoid  v.  McClelland,  16   Wall.  331 ;  and,  after  the  lapse  of  twenty-one  years, 
there  arises  a  conclusive  presumption  of  law  that  such  survey  was   regularly  made- 
and  marked  upon  the  land  as  returned.     Ormsby  v.  Ihmsen,  34  Penn.  St.  462. 

9  Barclay  v.  Howell's  Lessee,  6  Pet.  498 ;  compare  Birmingham  v.  Anderson,  70 
Penn.  St.  606. 

10  Ellicott  v.  Pearl,  1  McLean,  206,  affi'd  in  10  Pet.  412.  Compare  Ormsby  v. 
Ihmsen  (above).  The  rules  as  to  memoranda,  refreshing  memory,  hive  been  already 
stated.  Chapter  XVI. 

II  McCormick  v.  Barnum,  10  Wend.  104;  Barclay  v.  Howell's  Lessee  (above). 

"  For  instance  as  to  whether  certain  marks  on  trees  and  piles  of  stones,  wer« 
intended  aa  monuments  of  boundaries.  Davis  v.  Mason,  4  Pick.  156.  Compare  Bar- 
ron  v.  Coblfigh,  11  N.  H.  667. 

13  For  instance,  whether  certain  land  is  included  in  n  written  description.  Wood- 
burn  v.  Farmers.  <fcc.  Bank,  5  \ValK  and  S.  -117 ;  Schultz  v.  Lindell,  30  Mo.  810,  ^-jl. 
One  who  has  examined  surveys  and  maps  including  tie  premises,  and  plotted  the 


700  ACTIONS  AFFECTING   REAL  PROPERTY. 

(by  the  owners 1  who  are  separated  by  the  boundary  in  question) 
in  the  location  of  a  boundary  for  more  than  twenty  years,2  is 
conclusive;  but  acquiescence  for  a  few  years  is  not  enough,8 
unless  on  the  ground  of  estoppel.4  The  declarations  of  ancient 
persons,  made  while  in  possession  of  land  owned  by  them,  point- 
ing out  their  boundaries  on  the  land  itself,  and  who  are  deceased 
at  the  time  of  the  trial,  are  admissible  ;  where  nothing  appears  to 
show  that  they  were  interested  to  misrepresent  in  thus  pointing 
out  their  boundaries,  and  it  need  not  appear  affirmatively  that 
the  declarations  were  made  in  restriction  of,  or  against,  their  own 
rights.5  To  identify  a  monument  represented  on  a  plat  or  sur- 
vey as  marking  a  corner,  it  is  not  competent  to  prove  reputation 
of  the  neighborhood  as  to  it,  at  the  present  day,  unless  such 
reputation  was  traditionary  in  its  character;  having  passed  down 
from  those  who  were  acquainted  with  the  reputation  of  the  mark 
from  an  early  day  to  the  present  time,  or  unless  the  information 
as  to  such  reputation  was  derived  from  ancient  sources  or  from 
persons  who  had  peculiar  means  of  knowing  what  tho  reputation 
of  the  mark  was  at  an  early  day.  But  it  is  competent  to  prove 
that  the  occupants  of  the  tracts  adjoining  the  corner  each  claimed 
the  mark  as  the  true  corner  of  their  tracts.6 

12.  — title  under  judicial  or  statutory  authority, ,] — A  deed 
made  pursuant  to  the  requirement  of  a  judicial  decree 7  or  order,8 
if  it  be  made  by  the  person  in  whom  title  was  vested,9  may  be 


same  out  according  to  the  surveys,  and  followed,  with  his  eye,  the  different  lines  as 
given  in  the  deed  under  which  a  party  claims,  may  be  allowed  to  testify  as  to  the  loca- 
tion of  the  party's  occupancy.  Van  Rensselaer  v.  Yickery,  3  Lans.  57.  It  is  com- 
petent to  prove  by  a  surveyor,  that  the  courses  nnd  distances  in  a  deed  are  incongru- 
ous, and  that  all  the  lines  differ  in  length  from  the  deed,  llatcliffe  v.  Gary,  4  Abb. 
Ct.  App.  Dec.  4. 

1  Terry  v.  Chandler,  16  N.  Y.  354,  357. 

9  Baldwin  v.  Brown,  16  N.  Y.  359;  McCormick  v.  Barnum,  10  Wend.  104,  109; 
Jones  v.  Smith,  64  N.  Y.  180.  A  universal  rule.  Tyl.  Ej.  575. . 

3  Id.     Reed  v.  McCourt;  41  N.  Y.  435. 

4  Smith  v.  McNamara,  4  Lans.  169 ;  and  see  Vosburgh  v.  Teator,  82  N.  Y.  561,  568. 
An  oral  agreement  and  short  possession  are  not  alone  enough  to  chnnge  boundary, 
nor  can  an  acquiescence  for  twenty  years  be  disregarded  on  evidence  that  it  was 
suffered   under   mistake  (Baldwin  v.  Brown,  above);  or  intended   as   temporary. 
Pierson  v.  Mosher,  30  Barb.  81.     On  the  question  of  practical  location  it  ia  compe- 
tent to  ask  a  witness  whose  residence  and  relation  to  the  parties  has  been  such  that 
had  there  been  difference  between  the  adjoining  proprietors  in  respect  to  the  line,  he 
would  have  been  likely  to  know  it,  whether  he  ever  heard  of  more  than  one  line; 
and  his  answer,  that  he  had  not,  is  some  evidence   of  acquiescence  in   that  line. 
Ratcliffe  v.  Cary,  4  Abb.  Ct.  App.  Dec.  4. 

6  Daggett  v.  Shaw,  5  Mete.  (Mass.)  223,  226.  Compare  "Wendell  v.  Abbott,  45 
N.  H.  349;  Bartlett  v.  Emerson,  7  Gray  (Mass.),  174. 

6  Shutte  v.  Thompson,  15  Wall.  151. 

7  Games  v.  Dunn,  14  Pet.  332,  affi'g  1  McLean,  821. 

,         8  Hanrick  v.  Neely,  10  Wall.  364,  366.   Contra,  Platt  v.  Picton,  3  Robt.  64. 

9  As  for  instance  by  the  debtor  himself  (Rockwell  v.  Brown,  54  N".  Y.  210,  rev'g  33 
K  Y.  Super.  Ct.  U.  &  S.,  s.  c.  11  Abb.  Pr.  N.  S.  400 ;  42  How.  Pr.  226),  or  by  an  as- 
signee or  receiver  to  whom  the  debtor  is  shown  to  have  conveyed  (compare  Dawley 
V.  Brown,  65  Barb.  107;  The  Chatauqua  Co.  Bank  v.  White,  6  N.  Y.  236;  Same  v. 
Risley,  19  N.  Y.  369;  Van  Wyck  v.  Baker,  10  Hun,  39;  Cole  v.  Tyler,  65  N.  Y. 
73).  If  the  debtor's  title  was  vested  in  the  receiver  by  law  without  assignment,  the 


EJECTMENT.  701 

I 

given  in  evidence  (against  a  stranger,1  equally  as  against  a  party) 
witliQut  producing  the  decree  or  order,2  though  it  be  recited  in  the 
deed.8  But  the  decree  or  order  may  be  put  in  evidence,  either  to 
support  the  deed,4  or  to  show  that  it  was  unauthorized,5  or  to 
qualify  its  apparent  effect,6  or  to  show  that  the  proceeding  was 
without  jurisdiction.7  The  purchaser  is  presumed  to  have  known 
the  legal  effect  of  the  decree.8  If  jurisdiction  appears,  errors  or 
mistakes  cannot  be  shown,  to  impeach  the  title,  in  a  collateral  pro- 
ceeding.9 If  "the  want  of  jurisdiction  appears,  or  if  the  statute 
expressly  makes  the  sale  void  for  an  irregularity,  the  title  will 
not  avail  in  ejectment,10  except  as  against  the  party  who  obtained 
it  and  effected  the  sale  under  it,  and  those  claiming  under  his 
title,11  or  as  color  of  title  under  which  adverse  possession  is 
shown ;  but  a  decree  is  admissible  even  against  one  not  served,  if 
it  may  be  a  link  in  plaintiff's  title,  in  connection  with  other  evi- 
dence.13 

To  show  title  by  foreclosure,  by  advertisement  under  the 
statute,13  regular  foreclosure  must  be  shown.14  The  evidence 
which  the  statute  declares  to  be  equivalent  to  a  deed,  cannot 
be  added  to,  varied,  or  contradicted  by  parol  by  a  person  claiming 
under  it  ;w  but  any  other  person  may  thus  controvert  it.18  The 
affidavits  of  publication,  posting,  and  affixing  in  county  clerk's 
books,  being  only  prima  facie  evidence  of  the  acts  declared  to 
stand  as  the  conveyance,  defects  therein  may  be  supplied  by 
parol.17 

In  the  case  of  special  statutory  proceedings,  the  record  is  the 


decree  effecting  this  should  be  produced.     See  Koontz  v.  Northern  Bank,  16  Wall 
196. 

I  Barr  v.  Gratz,  4  Wheat.  213 ;  Gregg  v.  Forsyth,  24  How.  U.  S.  179. 

3  Except  when  the  statute  forbids  sale  unless  such  order  is  made.     Gallatian  v. 
Cunningham,  8  Cow.  361. 

8  Games  v.  Dunn,  14  Pet.  322. 

4  Fuller  v.   Van  Geesen,  4  Hill,  171,   affi'd   in  How.  App.  Cas.  240;    Dirst  v.' 
Morris,  14  Wall.  484,  490.     And  in  case  of  decree  in  foreclosure  the  mortgage  need 
not  be  produced  (Sinclair  v.  Jackson,  8  Cow.  543),  and  cannot  be  impeached  (Jackson 
v.   Jackson,  5  Cow.  173),  except  on  grounds  adequate   to  impeach  the    judgment 
itself  (Mancleville  v.  Reynolds,  68  N.  Y.  528,  542,  affi'g  5  Hun,  338). 

6  See  Gray  v.  Brignardello,  1  Wall.  627. 

6  Bigelow  v.  Forrest,  9  Wall.  339,  351. 

7  Rockwell  v.  McGovern,  69  N.  Y.  294,  affi'g  40  Super.  Ct.  (J.  <fe  S.)  118. 

8  Bigelow  v.  Forrest  (above). 

»  Rorer  on  Jud.  8.  202,  §  480;  203,  §  482. 

10  Id.  204,  §  486 ;  and  see  Gregg  v.  Forsyth,  24  How.  U.  S.  180;   Secrist  v.  Green, 
8  Wall.  744,  751. 

II  Brobst  v.  Brock,  10  Wall.  619,  533,  and  cas.  cit. 

11  Dirst  v.  Morris,  14  Wall.  484,  490.     For  the  mode  of  proving  the  decree  see 
Chapter  XXIX. 

18  2  N.  Y.  R,  S.  647  ;  L.  1838,  p.  261,  c.  266. 

14  Layman  v.  Whiting,  20  Barb.  559. 

15  Mowry  v.  Sanborn,  68  N.  Y.  153,  rev'g  7  Hun.  880.     Otherwise  before  the 
statute  had  this  effect.     Hawley  v.  Bennett,  5  Paige,  104. 

16  Sherman  v.  Willett,  42  N.  Y.  146,  149. 

"  Mowry  v.  San  born,  72  N.Y.  534;  and  see  Mann  v.  Best,  62  Mo.  491.  As  to  delay 
in  making  and  recording  the  affidavit,  compnre  Tnthill  v.  Tracy,  31  N.  Y.  157; 
Prink  v.  Thompson,  4  Lana.  489;  Chapman  v.  Delaware,  «tc.  R.  K.  Co.  3  Lans.  261. 


702  ACTIONS  AFFECTING  REAL  PROPERTY. 

primary  evidence,1  and  is  prima  facie,  but  not    conclusive,  evi- 
dence of  the  jurisdictional  facts  recited  in  it.8 

13.  — on  execution  sale?] — Title  is  to  be  proved  by  the  sheriffs 
certificate  and  deed,4  the  judgment  or  decree,5  or  a  duly  authenti- 
cated copy,6  or,  in  case  of  a  justice's  judgment  docketed,  the 
transcript  with  proof  of  its  entry,7  and  the  execution.8  Contents 
of  a  lost  execution  may  be  proved  by  secondary  evidence, — and  for 
this  purpose  the  deceased  attorney's  register  is  competent,  after 
issue  to  the  sheriff  has  been  shown.9  These  documents  are  prima 
facie  sufficient  as  against  the  debtor,  if  he  is  also  shown  to  have 
been  in  possession.10  But  as  against  others  in  possession,  plaintiff 
must  show  that  some  title  or  interest  was  in  the  judgment  debtor.11 
Authority  of  a  general  deputy  to  execute  a  deed  in  the  sheriff's 
name  is  presumed.12  A  sheriffs  deed  is  supported  by  a  presump- 
tion that  the  officer  performed  his  duty,13  and  that  the  acts  recited, 
though  stated  very  generally,  were  done  in  a  manner  conformable 
to  the  statute  ;14  and  the  granting  part  is  not  to  be  varied,15  except 
by  evidence  legitimate  by  way  of  explanation,  or  making  a  case 
for  equitable  reformation.16  The  sheriff's  certificate  of  sale,  or  a 


1  See  Jackson  v.  Daley,  6  Wend.  526.  The  book  of  a  school  commissioner  (since 
deceased)  preserved  in  the  county  archives,  and  containing  a  record  of  his  proceed- 
ings in  selling  lands  reserved  for  school  purposes,  and  a  list  of  such  lands  made  by 
one  (since  deceased)  acting  under  his  direction,  is  competent,  both  as  a  public  record 
and  as  entries  of  a  deceased  person  in  course  of  official  duty,  to  prove  what  lands  •were 
reserved  for  school  purposes,  and  therefore  could  be  conveyed  by  the  State.  Hed- 
rick  v.  llughes,  15  Wall.  123, 127.  The  secondary  evidence  of  the  contents  of  a  record 
need  not  be  a  strict  copy.  A  memorandum  or  selection  of  extracts,  if  embodying 
correctly  what  is  material,  is  competent,  especially  where  it  was  contemporaneous 
with  the  record.  Id. 

8  Adams  v.  Saratoga  <fe  Washington  R.  R.  Co.  10  N.  Y.  328,  reVg  11  Barb.  414. 
As  to  the  presumptions  indulged  in  support  of  the  record  in  other  respects,  see  Denning 
v.  Smith,  3  Johns.  Ch.  832;  Wood  v.  Chapin,  13  N.  Y.  609;  Cleveland  v.  Boerum,  27 
Barb.  252,  affi'g  23  Id.  201,  3  Abb.  Pr.  294,  and  pp.  544-8  of  this  vol. 

3  These  rules  are  much  varied  by  the  statutes  in  some  of  the  States. 

4  Clute  v.  Emmerick,  12  Hun,  504.     Recitals  in  the  deed  to  an  assignee  of  the 
certificate  are  sufficient  evidence  of  the  assignment.     Rorer  Jud.  S.  402,  §  1077. 

6  Wilson  v.  Conine,  2  Johns.  280;  Ins.  Co.  v.  Halleck,  6  Wall.  556. 

6  Jackson  v.  Hasbrouck,  12  Johns.  213 ;  Townshend  v.  Wesson,  4  Duer.  342. 
See  p.  535  of  this  vol. 

7  WAL  WORTH,  Ch.,  Tuttle  v.  Jackson,  6  Wend.  213,  222;  Arnold  v.  Gorr,  1  Rawle, 
223 ;  Dickinson  v.  Smith,  25  Barb.  102. 

8  Labntiie  v.  Baggs,  55  Ga.  572.     Lack  of  seal  (Ins.  Co.  v.  Halleck,  6  Wall.  656, 
658)  may  be  cured  by  amendment.     McGoon  v.  Scales,  9  Wall.  23,81. 

»  Leland  v.  Cameron,  31  N.  Y.  1 16. 

10  Kellogg  v.  Kellogg,  6  Barb.  116;  Tuttle  v.  Jackson,  6  Wend.  213,  223.     And 
in  some  cases  conclusive,  Dickinson  v.  Smith,  25  Barb.  102,  and  cases  cited. 

11  Tyl.  Ej.  177.  530. 

12  Jackson  v.  Davis,  18  Johns.  7. 

13  Wood  v.  Morehouse,  45  N.  Y.  368,  affi'g  1  Lans.  406;  Jackscn  v.  Shaffer,  11 
Johns.  513. 

14  Leland  v.  Cameron,  31  N.  Y.  115;  McGoon  v.  Scales,  9  Wall.  23,  30.     Com- 
pare, to  the  contrary,  Walker  v.  Moore,  2  Dill.  C.  Ct.  256. 

16  Jackson  v.  Roberts,  11  Wend.  422.  As  to  the  recitals,  compare  Phillips  v. 
Shiffer,  14  Abb.  Pr.  N.  S.  101. 

"  Bartlett  v.  Judd,  21  N.  Y.  200,  affi'g  23  Barb.  262. 


EJECTMENT.  703 

certified  copy,  is  by  the  statute 1  presumptive  evidence  of  the  facts 
required  to  be  stated  therein,2  and  plaintiff  should  be  prepared  to 
prove  such  a  certificate.3  Return  of  the  execution  sale  is  not 
necessary  unless  made  so  by  statute.4 

The  deed  may  be  defeated  by  oral  evidence  that  the  judg- 
ment had  been  paid ; 5  but  the  declarations  of  the  sheriff,  though 
he  be  deceased,  are  not  competent  for  this  purpose,6  unless  part 
of  the  res  gestcs.  A  certificate  of  redemption  duly  made  iaprima 
facie  evidence.7 

14.  —  on  surrogate's  sale.'] — By  the  recent  statute  in  New 
York,8  as  well  as  by  the  weight  of  opinion  in  modern  decisions, 
independent  of  such  special  statutes,  if  jurisdiction  appear  (and 
this  is,  prima facie,  shown  by  recitals  in  the  record  according  to 
principles  already  stated),9  the  burden  now  lies  on  the  party 
claiming  in  opposition  to  a  sale  under  a  surrogate's  order,  to  show  a . 
defect  in  the  proceedings,  such  as  would  impeach  the  judgment 
of  a  court  of  general  jurisdiction.     The  lapse  of  sufficient  time 
(twenty  or  thirty  years)  raises  a  conclusive  presumption  that  the 
proceedings  to  sustain  the  order  for  sale  and  the  deed,  were  regu- 
lar.10 

15.  —  on  tax  sale.'] — Unless  otherwise  provided  by  statute,  the 
claimant  must  prove  strictly  every  substantial  requisite  to  a  valid 
tax  and  sale  under  it.11    He  must  show  affirmatively  step  by  step 
that  every  thing  has  been  done  which  the  statute  made  essential  p 
unless  he  had  actual  possession,  and  is  suing  a  mere  trespasser,13  or 
is  relying  on  the  title  only  as  a  claim  characterizing  his  adverse  pos- 
session.14 The  recitals  in  a  tax  deed  are  not,  against  the  owner,  even 
prima  facie  evidence.15    Lapse  of  time,  however,  excuses  inability 

1  2  N.  Y.  R.  S.  p.  370,  §  §  43,  44;  1  L.  1857,  p.  93,  c.  60,  §  2. 

*  Anderson  v.  James,  4  Robt.  35. 

1  Clute  v.  Emmerick,  12  Hun,  604.     Contra,  Tyl.  Ej.  629. 

4  Wheaton  v.  Sexton,  4  Wheat.  503.    Compare  Willcox  v.  Emerson,  10  R.  I.  270, 
s.  c.  14  Am.  R.  683. 

5  Jackson  v.  Cadwell,  1  Cow.  622;  Stafford  v.  Williams,  12  Barb.  240. 

6  Woodgate  v.  Fleet,  11  Abb.  Pr.  N.  S.  41,  s.  c.  44  N.  Y.  1. 

1  People  ex  rel.  Chase  v.  Rathbun,  15  N.  Y.  628,  affi'g  Griffin  v.  Chase,  23  Barb. 
278;  and  see  Livingston  v.  Arnoux,  66  N.  Y.  507,  affi'g  15  Abb.  Pr.  N.  S.  158;  Rice 
v.  Davis.  7  Lans.  393. 

8  N.  Y.  L.  1850,  p.  117,  c.  82;  L.  1869,  p.  475,  c.  260;  L.  1872,  p.  229,  c.  92;  L. 
1878,  p.  139,  c.  129  ;  Forbes  v.  Halsey,  26  N.  Y.  53. 

»  P.  644,  Ac.  of  this  vol.  Comatock  v.  Crawford,  3  Wall.  396.  A  petition  con- 
forming to  the  statute  is  sufficient  (Florentine  v.  Barton,  2  Wall.  210,  216),  with  proof 
of  publication,  where  publication  is  required  (McNitt  v.  Turner,  16  Wall.  352,  365). 
Where  the  statute  does  not  require  notice,  the  record  need  not  show  that  notice  was 
given  (Florentine  v.  Barton  [above]).  Neither  the  evidence  nor  the  finding  of 
necessary  facts  need  appear,  if  the  statute  does  not  require  it  (Co^nett  v.  Williams, 
20  Id.  226,  260). 

10  1  Greenl.  Ev.  13th  ed.  26,  §  20;  Florentine  v.  Barton  (above). 

11  Williams  v.  Peyton,  4  Wheat.  77 ;  Little  v.  Herndon,  10  Wall.  26,  81. 
"  Blackw.  75. 

13  Thompson  v.  Burhans,  61  N.  Y.  59,  rev*g  61  Darb.  260. 

14  Id. ;  Pillow  v.  Roberts,  13  How.  U.  S.  472. 
"  Blackw.  73 ;  Tyl.  Ej.  536. 


704  ACTIONS  AFFECTING  REAL  PROPERTY. 

to  produce  full  evidence  of  minute  details ;  *  but  a  presumption  of 
regularity  cannot  serve  in  lieu  of  producing  the  record  if  it  can 
be  produced,  nor  serve  to  show  that  there  was  a  proper  record 
where  it  appears  that  none  can  be  found.2  The  official  assess- 
ment made  and  kept  pursuant  to  law  is  admissible,  on  production, 
with  evidence  that  it  comes  from  the  proper  official  custody, 
and  the  oath  of  the  maker  or  custodian  is  not  necessary.3  The 
final  assessment  roll  is  equally  competent.4  If  the  designation  of 
land  is  sufficient  under  the  statute,  the  testimony  of  the  assessor 
is  competent  to  identify  the  property.5  If  the  statute 6  makes  the 
deed  prima  facie  evidence,  it  merely  shifts  the  burden  of  proof  ;7 
and  whether  it  declare  the  deed  to  \>eprima facie  or  conclusive8 
evidence,  the  courts  do  not  give  it  this  effect  any  further  than 
expressly  required,  and  will  not  extend  the  presumption  to  pre- 
vious 9  or  subsequent 10  proceedings.  If  the  statute  does  not  de- 
clare that  the  deed  shall  be  prima  facie  evidence,  the  burden  is 
on  one  claiming  under  the  deed  to  prove  compliance  with  the 
law ;  and  the  general  presumption  of  official  regularity  cannot 
avail  to  supply  the  want  of  such  evidence,  as  to  matters  which 
should  be  of  record,  even  after  the  lapse  of  more  than  thirty 
years.11  Steps  which  the  law  makes  prerequisites  of  sale,  if  not 
recited  in  the  deed,  should  be  proved  aliunde  in  order  to  sustain 
the  deed,  although  the  law  does  not  require  them  to  be  recited.13 
"Where  the  statute  is  prohibitory  in  respect  to  conditions  of  power 
to  act,  recitals  showing  a  departure  from  the  statute  cannot  be 
helped  by  the  presumption  of  regularity.13  The  presumption  is 
indulged  to  supply  the  place  of  that  which  is  not  apparent,  not  to 
give  a  new  character  to  that  which  is  seen  to  be  defective. 

Payment  of  the  tax  may  be  proved  by  oral  evidence  as  well 


J  Stead  v.  Course.  4  Cranch,  403  ;  Hilton  v.  Bender,  69  N.  T.  76,  82. 

9  Blackw.  533  ;  Hilton  v.  Bender  (above). 

3  1  Whart.  Ev.  §  639.     Or  a  certified  copy.   Wing  v.  Hall,  47  Vt.  182.     The  pro- 
duction of  what  purport  to  be  assessment  rolls,  without  proof  of  their  authenticity  or 
the  genuineness  of  the  assessors'  signatures,  is  not  sufficient  evidence  that  the  taxes 
therein  mentioned  were  duly  imposed.     Stevens  v.  Palmer,  10  Bosw.  60. 

4  Ronkendorf  v.  Taylor's  Lessee,  4  Pet.  349. 
*  Russel  v.  Werntz,  24  Penn.  St.  337,  346. 

6  The  statutory  presumption  may  depend  on  the  statute  in  force  at  the  time  of  the 
trial.  Hickox  v.  Tallman,  38  Barb.  608. 

1  Williams  v.  Kirtland,  13  Wall.  306;  Johnson  v.  Elwood,  53  N.  Y.  431;  modi- 
fied on  another  point,  in  56  Id.  614. 

8  Whether  a  statute  declaring  it  conclusive  is  constitutional,  see  McCready  v. 
Sexton,  29  Iowa,  355,  8.  o.  4  Am.  R.  214;  Blackw.  80,  and  cas.  cit. 

9  Beekman  v.  Bigham,  5  N.  Y.  366;  Whitney  v.  Thomas,  23  N.  Y.  281 ;  Rath- 
bone  v.  Hooney.  58  N.  Y.  463. 

10  Westbrook  v.  Willey,  47  N.  Y.  457 ;  McCready  v.  Sexton,  29  Iowa,  356,  s.  o.  4 
Am.  R.  214. 

11  Hilton  v.  Bender,  69  N.  Y.  75,77,  rev'g  2  Hun,  1,  s.  c.  4  Supm.  Ct.  (T.  <fe  C.)  270. 

12  Brown  v.  Goodwin,  1  Abb.  New  Cas.  452. 

13  French  v.  Edwards,  13  Wall.  506,  514;  and  compare  Walker  v.  Moore,  2  Dill.  C. 
Ct.  266;  Leland  v.  Cameron,  31  N.  Y.  115. 


EJECTMENT.  705 

as  by  the  receipt  or  books  of  the  collector.1  The  word  "paid " 
on  a  collector's  book,  opposite  a  tax  upon  land,  is  not  evidence 
that  the  taxes  were  paid  by  the  person  in  whose  name  the  land 
is  assessed.3 

16.  Grantor's  titleJ] — Plaintiff,  relying  on  a  conveyance  to 
him  from  a  grantor  other  than  the  State,  must  show  that  his 
grantor  had  either  title,  or  possession  claiming  title.3     If  the 
conveyance  was  from  one  in  peaceable  possession  claiming  title 
at  the  time  it  was  executed,  this  is  sufficient.     If  from  one  out  of 
possession, — as  in  case  of  wild  lands, — plaintiff  must   show  a 
grant  from  the  original  source  of  title,  and  a  regular  deduction 
therefrom.4     Length  of  possession  is  not  essential,  unless  it  is 
relied  on  as  adverse  possession,  and  in  that  case,  if  sufficiently 
long  continued,  the  validity  of  the  deed  is  not  essential.5    The 
capacity  of  the  grantor  to  acquire6  and  convey,7  may  be  pre- 
sumed in  the  absence  of  evidence  tending  to  the  contrary.   In  the 
absence  of  evidence  to  the  contrary,  there  is  a  presumption  that 
the  grantee  took  according  to  the  true  title  of  the  grantor,  and  with 
knowledge  of  it.8    Title  shown  once  to  have  existed,  is  presumed 
to  continue,9  and  he  who  relies  upon  a  disseizin  must  prove  it.10 
Every  presumption  is  in  favor  of  possession  in  subordination  to 
the  title  of  the  true  owner.11     In  proving  an  exchange,  possession 
of  the~  parcel  given  in  exchange  is  relevant.12 

17.  State  grant.'] — A  patent  can  be  proved  by  a  constat^  or  an 
exemplification  of  record,13  without  producing  the  patent  itself.14 
A  patent  is  presumptive  evidence  of  its  own  regularity  and  valid- 
ity,15 and  at  common  law  conclusive,  except  as  against  evidence 
showing  it  to  be  absolutely  void.   Evidence,  oral  or  written,  which 
shows  a  want  of  power  in  officers  who  issue  a  patent,  is  admis- 
sible, even  in  an  action  at  law,  to  defeat  a  title  set  up  under  it.18 


1  Adams  v.  Beale,  19  Iowa,  61. 
5  Irwin  v.  Miller,  23  111.  401. 

3  Dominy  v.  Miller,  33  Barb.  386  ;    s.  P.   Stevens  v.  Hauser,  39  N.  Y.  302  ;  and 
Bee  Smith  v.  Lawrence,  12  Mich.  431.     Centra,  Chamberlain  v.  Bradley,  101  Mass. 
188,  s.  c.  8  Am.  R.  331 ;  Bolster  v.  Cushman,  34  Me.  428 ;  and  see  McNitt  v.  Turner, 
16  Wall.  852. 

4  Tyl.  Ej.  541. 

8  Stark  v.  Starr,  1  Sawy.  15. 

«  Yntes  v.  Van  De  Bogert,  56  N.  Y.  826. 

7  Battin  v.  Bigelow,  Pet.  C.  Ct.  462. 

8  Smith  v.  Townsend,  25  N.  Y.  479. 
*  Thomas  v.  Hatch,  3  Samn.  170. 

10  Stevens  v.  Hauscr,  39  N.  Y.  302,  rov'g  1  Robt.  50. 

11  Jackson  v.  Sharp,  9  Johns.  163;    Jackson  v.  Waters,  12  Id.  365;    Jackson  ». 
Thomas,  16  Id.  293. 

14  Moss  v.  Culver,  64  Penn.  St.  414,  s.  c.  3  Am.  R.  601. 

13  McKineron  v.  Bliss.  31  Barb.  180,  affi'd,  on  other  grounds,  as  McKinnon  v.  Bliss, 
21  N.  Y.  206;  and  see  McGarrahan  v.  Mining  Company,  96  U.  S.  (6  Otto),  316. 

14  Pat'  era  >n  v.  Winn,  5  Pet.  233. 

18  Jackson  v.  Marsh,  6  Cow.  281 ;  People  v.  Mauran,  5  Den.  389;  United  States  v. 
Stone,  2  Wall.  525,  535. 

14  Sherman  v.  Buick,  93  U.  S.  (3  Otto),  209. 

45 


706  ACTIONS  AFFECTING   REAL  PROPERTY. 

The  due  performance  of  official  acts  may  be  presumed  in  support 
of  its  validity.1  The  rules  usual  for  presuming  a  lost  grant  do 
not  avail  to  the  same  extent,  to  prove  a  grant  by  the  government.3 

18.  Landlord  and  tenant -.] — In  ejectment  between  landlord 
and  tenant,  the  lease  should  be  proved,3  and  it  is  sufficient  evi- 
dence of  plaintiff's  title.4  The  landlord's  execution  of  the  lease, 
even  where  he  sues  to  rescind  it  as  void,  is  competent  in  evidence 
as  an  act  of  ownership,  and  is  prima facie  evidence  of  title,  even 
though  defendants  are  only  connected  with  it  by  evidence  that 
they  are  in  possession  of  the  demised  premises.5  It  is  for  them  to 
show  that  their  possession  is  referable  to  some  other  title.6  Notice 
to  quit  is  not  necessary  under  a  demise  for  a  term  to  expire  at  a 
time  certain.7 

Where  a  tenancy  expired  by  notice  to  quit,  the  service  of 
the  notice  may  be  proved  by  the  testimony  of  the  person  making 
it,  or  of  any  eye  witness,8  or  by  memorandum  or  entry  made 
contemporaneously  in  the  ordinary  course  of  duty  by  the  person 
who  made  the  service,  he  being  since  deceased.9  The  authority 
of  an  agent  giving  the  notice  may  be  proved  as  in  other  cases  of 
agency,  except  that  a  subsequent  ratification  will  not  enure  to 
bind  the  tenant  by  a  notice  not  authorized  when  given.10  The 
contents  of  the  notice  may  be  proved  by  producing  a  duplicate 
original,11  or  if  that  cannot  be  done,  by  oral  evidence,  without 
having  given  defendant  notice  to  produce  the  original.12  The  fact 
that  the  period  contemplated  by  the  notice  had  expired  when  the 
action  was  brought,  may  be  shown  presumptively  by  the  admis- 
sion of  the  tenant ;  and  this  is  conclusive  if  express  and  acted  on.18 
The  refusal  of  the  tenant  to  admit  the  tenancy  may  be  proved  in 
lieu  of  a  notice  to  quit.14 


1  Jackson  v.  Cole.  4  Cow.  587 ;  Cofield  v.  McClelland,  1C  Wall.  331,  335  ;  Carpen- 
ter v.  Rannels,  19  Id.  138,  146;  but  compare  U.  S.  v.  Jonas,  19  Wall.  598,  604. 

*  Oaksmitl.'s  Lessee  v.  Johnston,  92  U.  S.  (2  Otto),  343,  345. 

8  Presumptions  arising  from  the  lapse  of  time  will  aid  defects  in  the  proof  of  the 
lease.  Bogardus  v.  Trinity  Church,  4  Sandf.  Ch.  633;  Carver  v.  Jackson.  4  Pet.  1.  If 
the  demise  was  oral,  it  may  be  proved  by  any  person  present  at  the  making  of  it,  or 
by  circumstances,  such  as  the  payment  of  rent.  Tyl.  Ej.  65i\  An  agreement  for  a 
lease  is  not  enough  without  proof  of  renj;  paid,  if  the  tenant  claims  to  hold  adversely. 
Jackson  v.  Cooly,  2  Johns.  Cas.  223. 

4  Stott  v.  Rutherford,  92  U.  S.  (2  Otto).  107.     See  p.  523,  Ac.  of  this  voL 

s  Magdalen  Hospital  v.  Knotts,  36  Weekly  R.  640. 

6  Id.     Contra,  Caldwell  v.  Center,  30  CaL  639. 

7  Tyl.  Ej.  207 ;    Gregg  v.  Von  Phul,  1  Wall.  274.     See,  also,  Lamed  v.  Hudson, 
60  N.  Y.  102 ;  Smith  v.  Littlefield,  51  N.  Y.  539  ;    People  ex  rel.  Aldhouse  v.  Goelet, 
14  Abb.  Pr.  N.  S.  130,  s.c.  64  Barb.  476. 

8  Tyl.  Ej.  551. 

*  Doe  4-  Patteshall  v.  Turford,  1 1  Mees.  <fe  W.  773 ;    and  see  Leland  v.  Cameron, 
81  N.  Y.  115. 

10  See  Tyl.  Ej.  552. 

11  Tory  v.  Orchard,  2  Bos.  A  P.  41. 

15  Falkner  v.  Beers,  2  Dong.  (Mich.)  117. 

13  Tyl.  Ej.  552,  and  cases  cited  ;    p.  527  of  this  vol.      For  mode  of  proving  com- 
mencement of  action,  see  p.  688  of  this  vol. 

14  Tyl.  Ej.  553. 


EJECTMENT.  707 

19.  Mortgagor  and  mortgagee?] — The  mortgage  is  sufficient 
evidence  of  title  as  against  the  mortgagee.     If  overdue,  default 
and  forfeiture  may  be  presumed.      As  against    third   persons, 
plaintiff  must  also  show  their  tenancy,  and  either  that  it  has  been 
determined  or  that  it  is  subject  to  the  mortgage.2 

20.  Vendor  and  purchaser^ — A  vendor  suing  for  possession, 
after  default  on  the  part  of  the  purchaser,  should  prove  the  con- 
tract,3 and  default,  and  that  defendant  was  in  possession  at  the 
commencement  of  the  action.     This  is  sufficient.4    The  contract 
is  conclusive  evidence  of  plaintiffs  title.5    Notice  to  quit  is  not 
necessary  if  defendant  is  put  in  the  wrong  by  evidence  of  breach, 
making  his  possession  tortious.6 

21.  Entry, .] — The  New  York  statute 7  dispenses  with  proof  of 
actual  entry  in  all  cases.8 

22.  Title  J)ij  descent  or  devise.] — The  modes  of  proof  have 
already  been  stated.9    More  strict  proof  of  death  is  required,  to 
establish  title  in  ejectment,  than  where  the  question  arises  inci- 
dentally and  collaterally.10 

23.  Dower.~\ — In  those  States  where  dower  may  be  recovered 
by  ejectment,  the  ordinary  rules  of  the  action  apply.11     The  mar- 
riage may  be  proved  by  indirect  evidence.     Evidence  of  the  hus- 
band's seizin,  which  would  be  sufficient  to  authorize  a  recovery  by 
the  heir,  is  enough.12    Proof  of  actual  possession  in  the  husband  or 
his  tenant  is  presumptive  evidence  of  seizin.13    A  purchaser 
from  the  husband  is  not  estopped  from  denying  that  he  had  an 


1  By  statute,  in  New  York,  the  mortgagee  cnnnot  bring  ejectment  (2  N.  Y.  R.  8. 
312,  §  57),  and  his  remedy  against  the  mortgagor  is  by  action  to  redeem,  llubbell 
V.  Moulson,  53  N.  Y.  225. 

5  Tyl.  Ej.  543-9. 

3  See  p.  604,  <fec.  of  this  vol. 

4  Tyl.  Ej.  558 ;  Friable  £  Price,  27  CaL  253. 

5  Jackson  v.  Ayres,  14  Johns.  224  ;  Jackson  v.  Britton,  4  Wend.  507.     Upon  prin- 
ciples already  stated  respecting  tenant's  estoppel.    See  p.  528  of  this  vol. 

6  Gregg  v.  Von  Plml,  1  Wall.  274 ;  Tyl.  Ej.  558. 

7  2  N.  Y.  R.  S.  306,  §  25. 

8  Lawrence  v.  Williams,  1  Duer,  585.     So,  also,  in  England.     Dumpor's  Case,  1 
Smith's  L.  Cas.  9.3,  108.     To  prove  a  legal  entry  in  avoidance  of  an  estate,  tttere 
must  be  nn  intent  to  enter  for  the  purpose  of  taking  actual  or  constructive  possession, 
not  merely  to  make  a  demand  or  for  other  purpose.     If  the  lessor  making  the  entry 
declares  that  he  comes  for  a  different  purpose,  he  cannot  subsequently  sustain  it  by 

E roving  a  purpose  to  take  possession  for  the  forfeiture.     Dumpor's  Case,  1  Smith's 
.  Cas.  93,  107.     Where  a  party  has  a  legal  right  to  enter  in  one  character,  or  under 
one  title,  the  law  presumes  that  his  entry  was  in  that  character,  and  under  that  title, 
and  not  as  a  trespasser.    Benson  v.  Bolles,  8  Wend.  175. 

9  Chapter  V  of  this  vol. 

10  Carroll  v.  Carroll,  60  N.  Y.  121,  125,  rev'g  2  Hun,  G09;  6  Supru.  a.  (T.  A  C.) 
294;  16  Abb.  Pr.  N.  S.  239. 

"Tyl.  Ej.  172. 

/  »  Jackson  v.  Waltermire.  5  Cow.  299  ;  Carpenter  v.  Weeks,  2  Hill,  341.  A  deed 
and  mortgage,  differently  dated,  may  be  shown  by  parol  to  have  been  simultaneously 
delivere<l,  so  as  to  disprove  continuing  seizin.  Maybcrry  v.  Brien,  15  Pet.  21. 

13  Carpenter  v.  Weeks,  2  Hill,  341. 


708  ACTIONS   AFFECTING  REAL  PROPERTY. 

absolute  estate.1  Evidence  of  the  husband's  declarations  and  ad- 
missions are  competent  against  the  widow,  equally  as  against  the 
heir.2 

A  variance  in  respect  to  the  extent  of  the  premises,8  or  the 
character  of  the  tenure,4  may  be  cured  by  amendment.  Ad- 
measurement shown  by  a  regular  record  is  presumed,  in  the  ab- 
sence of  evidence,  to  have  been  made  on  the  widow's  application 
and  with  her  assent.5  It  is  conclusive  as  to  the  location  and  ex- 
tent,6 but  is  not  evidence  of  title.7 

24.  Curtesy.~\ — In  general,  evidence  of  actual  seizin  is  neces- 
sary.8   Under  the  married  women's  act,-  curtesy  may  be  defeated 
by  evidence  that  the  wife  devised  or  conveyed.9    A  tenant  by 
the  curtesy,  holding  possession,  is  presumed  to  hold  as  such  tenant, 
and  not  adversely,  though  he  have  a  void  deed  of  the  fee.10 

25.  Title  under  ancient  instrument.'] — An  ancient  deed  or 
will,  or  other  instrument  of  title,11  may  be  admitted  in  evidence 
without  direct  proof  of  execution,12  when  shown  to  have  come  from 
proper  custody,  and  appearing  to  be  of  the  age  of  at  least  thirty 
years,13  if  either  a  corresponding  possession  under  it 14  for  at  least 
thirty  years 15  is  shown,  or  if  such  account  of  it  be  given  as  may 
reasonably  be  expected  under  all  the  circumstances  of  the  case, 
and  as  affords  a  presumption  that  it  is  genuine. 

There  must  always  be  possession  or  other  corroborating  proofs.16 


1  Cooper  v.  "Whitney,  3  Hill,  96 ;  Foster  v.  Dwinel,  1  Am.  L.  Reg.  N.  S.  604,  and 
note  of  REDFIELD,  J.  Unless,  perhaps,  when  he  derives  all  his  title  by  that  deed. 
McLeery  v.  McLeery,  6  Me.  172,  s.  c.  20  Am.  R.  683,  686,  and  cases  cited. 

*  Van  Duyne  v.  Thayre,  14  Wend.  233;  Keator  v.  Dimmick,  46  Barb.  158. 
Contra,  Derush  v.  Brown,  8  Ohio,  413. 

3  Bear  v.  Snyder,  11  Wend.  592. 

4  Borst  v.  Griffin,  9  Wend.  307. 

6  Tilson  v.  Thompson,  10  Pick.  359. 

6  Jackson  v.  Hixon,  17  Johns.  123;  Jackson  v.  Churchill,  7  Cow.  287. 

7  Jackson  v.  Randall,  6  Cow.  168;   Jackson  v.  De  Witt,  6  Id.  316.     At  least  not 
conclusive.     Parks  v.  Hardey,  4  Bradf.  15;   Wood  v.  Seely,  32  N.Y.  105.     As  to 
computing  a  gross  bum  in  lieu,  compare  the  statute,  2  N.  Y.  L.  1870,  p.  1722,  c.  717, 
§  6  (2  R.  S.  6  ed.  1124),  with  note  to  paragraph  45. 

8  Ferguson  v.  Tweedy,  43  N.  Y.  543,  affi'g  56  Barb.  168  ;  or  at  least  evidence  ex- 
cluding the  idea  of  actual  seizin  in  a  stranger.     2  Abb.  N.  Y.  Dig.  new  ed.  493. 
Compare  Young  v.  Langbein,  7  Hun,  151. 

9  Lansing  v.  Gulick,  26  How.  Pr.  250,  and  cases  cited ;  Matter  of  Winne,  2  Lans. 
21,  rev'g  1  Lans.  508. 

10  Corwin  v.  Corwin,  6  N.  Y.  S42,  rev'g  9  Barb.  219. 

11  Otherwise  of  an  ancient  account  adduced  in  support  of  title,  though  found  with 
the  title  deeds.     Jackson  v.  Murray,  Anth.  N.  P.  143.     Compare  Roe  v.  Rawlings,  7 
East,  279. 

15  For  the  general  rule,  see  Enders  v.  Sternbergh,  2  Abb.  Ct.  App.  Dec.  31. 

13  The  handwriting  of  signatures  to  unauthorized  indorsements  or  certificates  may 
be  proved,  for  the  purpose  of  showing  the  antiquity.    Jackson  v.  Laroway,  3  Johns. 
Cas.  283. 

14  Crowder  v.  Hopkins,  10  Paige,  183. 

15  Staring  v.  Bowen,  6  Barb.  109.     Less  is  not  enough  (Jackson  v.  Blanshan,  3 
Johns.  292),  unless  there  be  the  aid  of  some  evidence  of  execution.     Jackson  v.  Lu- 
quere,  6  Cow.  221. 

16  Wilson  v.  Betts,  4  Den.  201 ;   s.  P.  Clark  v.  Owens,  18  N.  Y.  434 ;    Ridgeley  v. 
Johnson,  11  Barb.  527. 


EJECTMENT.  709 

Where  these  are  shown;  the  fact  that  an  attesting  witness  is  liv- 
ing, within  the  jurisdiction,  does  not  make  it  essential  to  produce 
him.1  The  presumption  may  be  rebutted.2 

Evidence  of  handwriting  is  admissible  in  aid  of  the  presump- 
tion ;  and,  in  qualification  of  the  general  rule  already-  stated,3  it  is 
to  be  observed  that  where,  from  the  antiquity  of  the  writing,  it 
is  impossible  for  any  living  witness  to  swear  that  he  ever  saw  the 
party  write,  comparison  is  allowed,  from  necessity,  with  documents 
known  to  be  in  his  handwriting,  though  not  otherwise  in  evi- 
dence.4 

26.  Lost  instrument,  and  secondary  evidence.'] — Notice  to  a 
party  to  the  action  to  produce  an  instrument,  is  regular  though 
the  instrument  be  in  possession  of  his  grantor ;  and  plaintiff  need 
not  call  such  grantor  as  a  witness.5    A  deed  produced,  by  a  party 
to  it  and  to  the  action,  pursuant  to  notice  to  produce,  may  be 
read  in  evidence  without  proof  of  its  execution,  unless  there  is 
evidence  impeaching  it.6    Secondary  evidence  may  be  given  of  a 
document,  lost  or  destroyed  without  the  fault  'of  the  party  offer- 
ing it,  although  such  document  be  one  which,  by  reason  of  age, 
proved  itself  without  ordinary  proof  of  execution.     In  such  a 
case  the  same  principle  of  necessity  which  admits  secondary  evi- 
dence of  its  contents,  allows  proof,  by  testimony,  of  its  general 
appearance  and  of  its  marks  of  antiquity.7    Parol  evidence  of  the 
contents  of  a  lost  deed  should  show  substantially  all  the  contents. 
A  small  portion  is  not  enough  ; 8  but  evidence  is  sufficient  which 
enables  the  court  to  approximate  to  the  date,  and  to  determine 
the  character,  the  parties,  and  the  premises  conveyed.9 

27.  Presumed  grant.'] — The  cases  in  which  a  grant  is   pre- 
sumed are  chiefly  of  three  classes. 

1.  Where  one  has  been  in  possession  under  claim  of  right  for 
a  great  lapse  of  time  (the  period  fixed  by  the  statute  of  limita- 
tions is  usually  followed10),  sufficient  to  justify  an  inference  of 
rightful  enjoyment,  a  grant  may  be  presumed  for  the  sake  of 
quieting  his  title  and  possession,  unless  the  circumstances  are 
equally  consistent  with  the  idea  that  he  had  none.11  This  pre- 


1  Jackson  v.  Christman,  4  Wend.  277. 

3  Wilson  v.  Belts  (above);  Meegan  v.  Boyle,  19  How.  U.  S.  130. 

*  Pp.  393-8  of  this  vol. 

4  Strotlier  v.  Lucas,  6  Pet.  763 ;  Jackson  v.  Brooks,  8  Wend.  426  ;  West  v.  State, 
22  N.  J.  L.  (2  Zab.)  212,  241 ;  Swreigart  v.  Richards,  8  Penn.  St.  436. 

6  Jackson  v.  Livinsrston,  7  Wend.  136;  Corbin  v.  Jackson,  14  Id.  619. 

«  Betts  v.  Badger,  12  Johns.  223  ;  McGregor  v.  Wait,  10  Gray  (Mass.),  72. 

7  Endcrs  v.  Stern  bergh,  2  Abb.  Ct.  A  pp.  Dec.  31,  rev'g  52  Barb.  222. 

8  So  held  in  trespass.     Edwards  v.  Noyes,  65  N.  Y.  125;  and  see  Metcalf  v.  Van 
Benthuysen,  3  N.  Y.  424. 

•  Kent  v.  Harcourt,  83  Barb.  491. 

10  Ricard  v.  Williams,  7   Wheat.   69;    Flora  v.  Carbean,  38  N.  Y.  111.     Compare 
Barcl  iy  V.  Howell,  6  Pet.  498;  Mitchel  v.  United  States,  9  Pet.  711,  760. 

11  R'icard  v.  Williams,  7  Wheat.  59,   109;  Schauber  v.  Jackaon,  2  Wend.   14; 
Flora  v.  Carbean,  88  N.  Y.  111. 


710  ACTIONS  AFFECTING  REAL  PROPERTY. 

sumption  is  aided  by  evidence  that  he  had  a  right  to  a  grant. 
To  raise  this  presumption,  some  evidence  must  be  given  tending 
to  show  title  good  in  substance  (though  wanting  some  essential 
matter  to  make  it  formally  complete),  and  a  possession  consistent 
with  the  grant  to  be  presumed.1  But  very  slight  circumstances 
will  authorize  the  inference  after  a  great  lapse  of  time.2 

2.  Where  those  claiming  title  show  themselves  to  have  been 
entitled  to  a  conveyance  from  trustees  in  conformity  to  the  trust, 
or  from  others  in  pursuance  of  a  contract,  a  grant  may  be  con- 
clusively presumed  against  a  person  in  possession  without  right.8 

3.  Where  defendant  not  claiming   title  but  only  possession, 
gives  evidence  tending  to  raise  an  inference  that  plaintiff,  or 
those  under  whom  he  claims  had  divested  themselves  of  title  by 
a  conveyance  to  some  third  person,  the  jury  may  infer  a  grant  ;4 
but  the  law  does  not  presume  it.5 

28.  Deed  void  for  adverse  possession."] — Showing  possession  in 
a  third  person  is  not  enough ;  it  must  be  shown  to  be  adverse,6 
and  under  the  claim  of  some  specific  title 7  asserted  in  good  faith.8 
The  adverse  possession  must  be  clearly  and  positively  proved.9 
If  the  deed  is  shown  to  have  been  made  by  the  true  owner,  every 
presumption  is  in  favor  of  a  possession  in  subordination  to  his 
title.10       • 

29.  Impeaching  on  equitable  grounds.'] — Under  the  new  pro- 
cedure a  deed,  or  other  muniment  of  title,  may  be  impeached  on 
equitable  grounds.11    A  party  who  has  read  the  instrument  in 
evidence,  for  the  purpose  of  showing  the  nature  of  his  adversary's 
claim,  is  not  thereby  precluded  from  impeaching  the  instrument.12 

30.  Admissions  and  declarations.'] — A  party  cannot  prove  or 
disprove  title  to  land  by  his  adversary's  parol  admission  of  title 
or  of  the  want  of  it.13    But  in  support  of  other  legal  evidence  of 
title,  evidence  of  a  general  admission,  or  even  an  indirect  recogni- 
tion, is  competent,"  and  is  sufficient  against  a  mere  intruder.15 

1  Enders  v.  Sternbergh,  2  Abb.  Ct.  App.  Dec.  31,  reVg  52  Barb.  222. 
*  Kussell  v.  Jackson,  22  Wend.  276,  282,  affi'g  4  Id.  543. 

8  Schauber  v.  Jackson,  2  Wend.  14, 32,  per  WALWORTH,  Ch.,  dissenting;  French  v. 
Edwards,  21  Wall.  147,  and  a  further  decision  in  5  Sawy.  266. 

*•  Schauber  v.  Jackson,  2  Wend.  14,  63.     Contra,  Doe  v.  Butler,  3  Wend.  149. 
6  Schauber  v.  Jackson  (above). 

6  Stevens  v.  Hauser,  39  N.  Y.  302,  reVg  1  Robt.  50. 

7  Crary  v.  Goodman,  22  N.  Y.  170. 

8  Livingston  v.  Peru  Iron  Co.  9  Wend.  511,  rev'g  2  Paige,  890. 

9  Wickham  v.  Conklin,  8  Johns.  220;  Jackson  v.   Sharp,  9  Id.   163;  Jackson  v. 
Waters,  12  Id.  365 ;  Howard  v.  Howard,  17  Barb.  663 ;  but  compare  La  Frombois  v. 
Jackson,  8  Cow.  589. 

10  Jackson  v.  Sharp,  9  Johns.  163 ;  Jackson  v.  Waters,  12  Id.  365. 

11  Despard  v.  "Walbridge,  15  N.  Y.  374.     See  paragraphs  1  and  36. 
14  Remington  v.  Linthirum,  14  Pet.  84. 

13  Walker  v.  Dnnspaugh,  20  N.  Y.  170 ;  Jackson  v.  Miller,  6  Cow.  751,  755  ;  Jack- 
•on  v.  Cary,  16  Johns.  802,  306;  McPhaul  v.  Gilchrist,  7  I  red.  (N.  C.)  L.  169,  173. 

14  Jackson  v.  Dobbin,  3  Johns.  223;  Jackson  v.  Croy,  12  Johns.  427. 

15  Sykes  v.  llayes,  5  Biss.  629. 


EJECTMENT.  711 

Wherever  the  declaration  of  one  having  or  claiming  title  to 
real  estate  would  be  competent  against  him,  it  is  competent 
against  persons  subsequently  deriving  title  through  or  from  him, 
provided  that  it  was  made  while  he  held  all  the  title  which  they 
obtained  or  can  claim;1  but  it  is  not  competent  for  the  purpose  of 
impeaching  or  destroying  a  record  title.2  Declarations  made  after 
he  contracted  to  convey,  but  before  conveying,  are  competent,3  but 
those  made  after  he  conveyed  (even  though  while  he  continued 
in  the  occupation  by  sufferance4),  are  not  competent  against  those 
claiming  under  him.5 

1  Chadwick  v.  Former,  69  N.  Y.  407,  And  cas.  cit.,  rev*g,  on  other  grounds,  6  Hnn, 
643.     The  declarations  need  not  have  been  made  on  the  land.     Abeel  v.  Van  Gelder, 
86  N.  Y.  613,  616 ;  Smith  v.  McNamara,  4  Lans.  169.     Actual  or  constructive  posses- 
sion is  enough.     Id.     Id. 

2  Gibney  v.  Marchay,  34  N.  Y.  304. 

3  Chadwick  v.  Fonner  (above) ;  Corbin  v.  Jackson,  14  Wend.  619. 
4Vrooman  v.  King,  36   N.  Y.  477,  483;    2    Whart.   Ev.  §  1165  and  ca3.   cit. 

Contra,  Adams  v.  Davidson,  10  N.  Y.  309. 

8  The  cases  on  this  subject  are  innumerable,  and  to  a  considerable  extent  irrecon- 
cilable. The  following  rules  I  deem  safe  guides  in  the  application  of  the  principle 
etated  in  the  text,  agreeably  to  the  present  general  canons  of  evidence: 

1.  If  it  is  a  question  whether  a  person  was  in  possession  at  a  given  time,  his  acts 
of  ownership  at  that  time,  and  his  declarations  and  admissions  made  in  connection 
with  such  acts,  and.  characterizing  them,  are  competent.     Perkins  v.  Blood,  36  Vt. 
273,  282  ;  Young  v.  Adams,  14  B.  Monr.  (Ky.)  127, 132 ;  Andrews  v.  Fleming,  2  Dall. 
93;  St.  Clair  v.  Shale,  9  Penn.  St.  252;  West  v.  Price,  2  J.  J.  Marsh  (Ky.),  380; 
Comma  v.  Comins,  21  Conn.  413. 

2.  If  a  party,  or  one  under  whom  a  party  claims,  is  shown  to  have  been  in  posses- 
sion (Ellis  v.  Janes,  10  Cal.  456;    Reed  v.  Dickey,  1  Watts  [Penn.],  152),  and  it  is  a 
question  whether  ho  held  under  claim  of  title,  and  if  so  what  claim,  his  declarations 
and  admissions  (including  entries  and  memoranda;  Hodgdon  v.  Shannon,  44  N.  H. 
672 ;  Rand  v.  Dodge,  17  N.  H.  343,  366)  made  while  in  possession,  and  characterizing 
his  claim  of  title,  are  competent.     Enders  v.  Sternbergh,  2  Abb.  Ct.  App.  Dec.  31, 
rev'g  52  Barb.  222 ;  Sample  v.  Robb,  16  Penn.  St.  305,  319 ;  Jackson  v.  Bard,  4  Johns. 
230 ;  Fellows  v.  Fellows,  37  N.  H.  75,  84. 

3.  If  it  is  a  question  what  were  the  boundaries  of  his  possession,  his  acts  done  upon 
the  land  (and  equally  his  declarations,  made  while  in  possession),  and  defining  his 
then  actual  boundary,  are  competent  evidence  of  the  location  of  the  line  ;  but  not  of 
the  title  (Bower  v.  Earl,  18  Mich.  367,  376;  Van  Blarcom  v.  Kip,  26  N.  J.  L.  [2 
Dutch.]  351,  860;   Gratz  v.  Beates,  45  Penn.  St.  495;    Dawson  v.  Mills,  32  Penn.  St. 
802),  except  in  the  cases  where  actual  location  affects  title  (paragraph  11). 

4.  In  all  these  cases  the  declarations  are  received  as  in  the  nature  of  a  part  of  the 
re.i  gestce  of  the  continuous  and  pervading  fact  of  possession  or  claim,  and  hence  are 
admissible  not  only  against,  but  equally  in  favor  of,  the  declarant  and  those  claiming 
under  him.     Sh 'alter  v.  Eakeman,  56  Penn.  St.  144;  page  158  of  tliis  v«>L 

5.  If  possession  with  or  without  apparent  paper  title  has  been  shown  to  have 
been  in  a  person  under  whom  either  party  claims,  evidence  of  his  declarations  and 
admissions,  against  his  interest,  of  facts  such  as  oral  evidence  is  competent  to  show, 
and  which  directly  disparage  his  title  or  the  extent  or  the  effect  of  his  possession,  is 
admissible  against  those  claiming  under  him,  if  clearly  shown  to  have  been  made 
while  he  held  the  possession  and  the  title,  if  anj.     P.  158  of  this  vol ;  Outcalt  v.  Lud- 
loW,  32  N.  J.  L.  239 ;   Carpenter  v.  Carpenter,  8  Buah  (Ky.),  2S:i ;  Kckford  v.  DeKiy, 
8  Paige  89;   Keator  v.  Dimpiick.  46  Barb.  158;  Graham  v.  Busby.  -34   Miss.  272, 
274;   Jackson  v.  Livingston,  7   Wend.  136;  Corbin  v.  Jackson.  14  Id.  619.     State- 
ments of  merely  incidental   facts  (such  as  the  amount  due  on  a  mortgage,  <tc. ;  Cook 
v.  Swan,  5  Conn.  14";   Foote  v.  Beecher,  7   Abb.  New  Cas.),  cs  well  as  any  declara- 
tions made  before  acquiring  (Wallace  v.  Miner,  6  Ohio,  366)  or  afi<;r  patting  witli 
(Vrcoman  v.  'King,  36  N.  Y.  483)  the  possession  or  title,  are  inadmissible,  unless  as 
part  of  the  rcsgestas  of  A  specific  fact  already  properly  in  evidence  (Moore  v.  Harail. 


712  ACTIONS  AFFECTING  REAL  PROPERTY. 

Admissions  as  to  title  are  dangerous  evidence.1 

31.  Recitals] — A  recital  in  a  deed2  is  evidence  of  the  fact  of 
instrument  recited,  as  against  the  parties  to  the  deed,  and  those 
who  claim  under  them  by  matters  subsequent,  whether  by  privity 
in  blood,  estate  or  law;3  but  not  against  others,4  unless  accom- 
panied with  other  evidence  of  the  ancient  existence  of  the  deed  and 
of  possession  in  accordance  with  it,5  in  which  case  it  is  admissible 
even  against  strangers.6  A  deed,  containing  a  recital,  is  compe- 
tent, although  it  does  not  directly  affect  the  title.7  A  general 
recital,  as  distinguished  from  a  direct  affirmation  of  fact,  is  not  a 
conclusive  estoppel;8  and  one  which  would  otherwise  be  con- 
clusive may  be  explained  by  mistake,9  &c.,  unless  acted  on,  so  as 
to  create  an  equitable  estoppel. 


ton,  44  N.  Y.  666 ;  Kent  v.  Harcourt,  33  Barb.  491 ;  Rigg  y.  Cook,  9  111.  [4  Gilm.] 
336,  350;  Bell  v.  Woodward,  46  N.  H.  315,  335;  Brush  v.  Blanchard,  19  111.  31; 
McDowell  v.  Goldsmith,  6  Md.  319,  338;  Dinkle  v.  Marshall,  3  Binn.  [Penn.]587; 
Carroll  v.  Granite  Manuf.  Co.  11  Md.  399,  407;  Johnson  v.  Elliot,  26  N.  H.  [6  Fost.] 
67,  76;  Cheswell  y.  Eastham,  16  N.  H.  296),  or  brought  home  to  the  party  against 
whom  they  are  adduced. 

6.  If  one  under  whom  neither  party  claims  is  shown  to  have  been  in  possession, 
with  or  without  apparent  title,  and  it  is  a  question  whether  he  held  under  a  claim  of 
title  and  if  so  what  claim,  his  declarations  and  admissions  made  while  in  possession, 
and  characterizing  his  claim  of  title,  are  competent  after  his  decease,  but  not  before. 
2  Whart.  Ev.  §  1156. 

7.  la  none  of  these  cases  are  admissions  and  declarations  competent  as  a  substi- 
tute for  (.Maslin  v.  Thomas,  8  Gill.  [Md.]  18,  29),  or  in  contradiction  of,  a  paper  title. 
Gibney  v.  Marchay,  34  N.  Y.  301,  304 ;  Jackson  v.  Cole,  4  Cow.  587 ;  Oakea  v.  Marcy, 
10  Pick.  (Mass.)  195. 

8.  Declarations,  not  admissible  under  these  rules,  are  not  rendered  admissible 
by  the  fact  that  they  are  offered  to  rebut  other  contrary  declarations  already  in 
evidence.  Waring  v.  Warren,  1  Johns.  340;  s.  p.  Henton  v.  Findlay,  12  Penn.  St.  304. 
Nor  even  though  made  as  dying  declarations.    Jackson  v.  Vredenburgh,  1  Johns.  159. 

For  the  application  of  these  rules,  on  a  question  of  fraud  as  against  creditors,  see 
Chapter  LI. 

For  declarations  as  to  advancements,  see  p.  155  of  this  vt>l. 

1  Jackson  v.   Shearman,  6  Johns.  19;  Jackson  v.  Cary,  16  Id.  302;  Jackson  v. 
Miller,  6  Cow.  751,  affi'd  in  6  Wend,  228. 

Evidem  e  that  possession  was  characterized  by  declarations  claiming  it  under  a 
writing,  does  not  necessarily  require  production  of  the  writing.  Patterson  v.  Flana- 
gan, 37  Ala.  513,  522  ;  p.  635  of  this  vol.  n.  2. 

2  A  recital  in  a  deed  given  under  a  decree,  may  be  limited  by  the  decree.     McCall 
T.  Carpenter,  18  How.  U.  S.  297. 

3  Carver  v.  Astor,  4  Pet.  1,  and  cas.  cit. ;  Crane  v.  Morris,  6  Id.  598,  611,  STORY, 
J. ;  Torrey  v.  Bank  of  Orleans,  9  Paige,  649,  and  cas.  cit. 

4  Hill  v.  Draper,  10  Barb.  454 ;  Hardenburgh  v.  Lakin,  47  N.  Y.  109. 

8  Sehermerhorn  v.  Negus,  2  Hill,  335;  McKinnon  v.  Bliss,  21  N.  Y.  206,  affi'g 
McKineron  v.  BHss,  31  Barb.  180. 

6  Deery  v.  Cray,  5  Wall.  795,  805. 

7  Jackson  v.  Harrington,  9  Cow.   86.     But,  in  such  a  case,  since  the  claim  of 
the  party  is  not  founded  on  the  deed,  the  deed  is  not  an  estoppel  (Champlain, 
<fcc.  R.  R.  Co.  v.  Valentine,  19  Barb.  484),  and  the   recital  must  be  one  which  is 
competent  as  an  admission  of  a  predecessor  in  title  or  possession,  under  the  rules 
already  stated  (page  712),  and  if  the  instrument  containing  it  was  not  executed  by 
him  there  must  be  evidence  of  his  acceptance  or  of  possession  of  it  on  the  part  of  him 
or  of  them  against  whom  it  is  adduced.     Jackson  v.  Brooks,  8  Wend.  420.     For  this 
purpose  their  production  of  it  is  prima  facie  enough.    Jackson  v.  Harrington  (above). 

8  Huntington  v.  Havens,  5  Johns.  Ch.  23;  Dempsey  v.  Tylee,  8  L'uer,.  73. 
»  Stoughton  v.  Lynch,  2  Johns.  Ch.  209. 


EJECTMENT.  713 

32.  Estoppels] — A  conveyance,  which,  expressly  or  by  neces- 
sary implication,  affirms  that  the  grantor  is  seized  of  and  conveys  a 
fee  simple,  estops  the  grantor,  and  those  claiming  under  him,  from 
denying  that  he  had  that  estate  and  passed  it  by  the  deed.1    But 
a  quitclaim,  or  a  deed  which  does  not,  on  its  face,  define  the  estate 
or  interest  conveyed  or  intended  to  be  conveyed  in  the  prem- 
ises, does  not  estop  either  party  from  showing,  in  opposition  to  it, 
that  no  title  passed,  or  from  claiming  under  after-acquired  title.2 
An  estoppel  against  estoppel  sets  the  matter  at  large.3 

Evidence  of  an  equitable  estoppel  is  admissible  under  a  denial, 
or  by  amendment,  if  the  party  is  not  misled.4  Estoppel  in  pais 
cannot  work  a  transfer  of  title  to  land  ;5  but  it  may  cut  off  a  lien,6 
conclude  a  question  of  boundary,7  or  even  preclude  the  true 
owner  and  those  claiming  under  him  from  impeaching  an  adverse 
conveyance  when  taken  on  the  faith  of  his  disavowals.8 

33.  Former   adjudication^ — A  former  judgment    in   eject- 
ment, recovered  under  the  new  procedure,  is  evidence  (and  con- 
clusive, except  where  the  statute  gives  a  new  trial  of  course), 
against  the  parties,  as  in  personal  actions.9    And  against  strangers 
who  entered  into  possession  after  the  former  action  was  com- 
menced, but  not  others.10    The  grouy  Is  of  former  judgment,  if 
they  do  not  fully  appear  from  the  record,  may  be  shown  by 
parol,  provided  that  the  matters  alleged  to  have  been  passed  upon 
are  such  as  could  legally  have  been  given  in  evidence  upon  the 
trial,  and   that  the  verdict  and  judgment  show  that  they  must 
necessarily  have  been  considered  by  the  court  and  jury.11     Judg- 
ment in  summary  proceedings,12  or  in  a  proceeding  or  action  to 
determine  conflicting  claims,13  is  competent.     Acquittal  in  forcible 
entry  and  detainer,  is  not.14 


1  Van  Rcnsselacr  y.  Kearney,  11  How.  U.  S.  297;  Heath  v.  Crealock,  L.  R.  10 
Chan.  App.  22,  s.  c.  11  Mo:ik's  Eng.  416,  and  cas.  cit. ;  and  see  House  v.  McCormick, 
67  K  Y.  310;  Gallup  v.  Albany  Rev.  7  Lans.  471. 

4  Sparrow  v.  Kingmnn,  1  N.  Y.  242,  247;  Kingman  v.  Sparrow,  12  Barb.  201 ; 
Bigelow  v.  Finch,  1 1  Barb.  498.  The  estoppel  which  passes  an  after-acquired  title, 
under  a  prior  one.  cannot  be  prejudiced  by  the  admission  of  the  party  setting  it  up, 
that  the  grantor  had  no  title  when  he  conveyed.  McCusker  v.  McEvey,  9  R.  I.  528, 
B.  c.  11  Am.  R.  295. 

3  Branson  v.  Wirth,  17  Wall.  3:2. 

4  Rowan  v.  Kebey,  4  Abb.  Ct.  App.  Dec.  125. 

6  Babcock  v.  Utter,  1  Abb.  Ct.  App.  Doc.  27 ;  Hayes  v.  Livingston,  34  Mich. 
384,  s.  c.  22  Am.  R.  533. 

6  Markham  v.  O'Connor,  52  Geo.  183,  s.  c.  21  Am.  R.  249. 

7  Corkhill  v.  Landers,  44  Barb.  218. 

8  Mattoon  v.  Young,  45  N.  Y.  696,  again,  2  Hun,  559.    For  the  three  propositions 
on  equitable  estopnel,  see  12  Moak'a  Eng.  373,  and  cases  collected;  Id.  375  n. 

9  Sturdy  v.  Juckaway,  4  Wall.  174;  Miles  v.  Caldwell,  2  Id.  35. 

10  Thompson  v.  Clark,  4  Hun,  165.     Compare  Sheridan  v.  Andrews,  49  N.  Y.  479. 

11  Wood  v.  Jackson,  8  Wend.  9,  rev'g  3  Id.  27,  reviewing  conflicting  case?.  Followed 
by  NELSON,  J.,  Lawrence  v.  Hunt,  10  Id.  81 ;  s.  p.  Stednian  v.  Patcbin,  84  Barb.  21S; 
Miles  v.  raid  well,  2  Wall.  35. 

13  Terrett  v.  Cowc-nhoven,  11  Ilun.  320. 

18  Lessee  of  1'arrish  v.  Ferris,  2  Black,  606. 

14  Peyton  v.  stith,  5  1'et.  485. 


714:  ACTIONS  AFFECTING  REAL  PROPERTY. 

To  prove  a  judgment  as  an  adjudication  upon  the  title,  or  a 
link  in  its  chain,  the  judgment  roll  must  be  produced.1 

34.  Defendants  possession :  Ouster.'] — The  fact  that  defend- 
ant was  in  possession  at  the  commencement  of  the  action  must  be 
shown.2    It  may  be  proved  by  direct  testimony  ;3  or  by  declara- 
tions of  the  defendant;4 -or  by  his  acts  of  dominion;5   or  by  the 
fact  that  he  procured  himself  to  be  made  a  party,  in  order  to  de- 
fend the  title.6    A  variance  as  to  his  claim  of  title,7  or  the  rela- 
tive possession  of  several  defendants,8  is  not  fatal. 

Proof  of  lease  or  entry  is  no  longer  required,9  nor  of  ouster  un- 
less it  is  shown  that  defendant  is  a  tenant  in  common  or  joint 
tenant  with  plaintiff,  or  holds  under  such  a  co-tenant  of  plaintiff.10 
In  that  case  actual  ouster  is  generally  necessary.11  It  may  be 
proved  by  showing  that  the  defendant  held  adversely,  or  that  he 
denied  the  title  of  the  other  co-tenants,  or  claimed  the  whole  of 
the  premises  for  himself,  or  denied  possession  to  the  other ;  or  had 
the  sole  and  undisturbed  possession  for  a  long  course  of  years 
without  payment  of  rent,  and  without  any  claim  of  any  part  of 
the  profits  by  the  other  co-tenants  during  the  whole  of  the  time.12 
Presumption  of  ouster  does  not  arise  where  the  right  exercised 
by  the  tenant  in  possession  is  consistent  with  the  rights  of  his  co- 
tenant.13 

35.  Mesne  profits.~\ — Rents  and  profits  cannot  be  recovered 
unless  claimed  in  the  complaint.14     The  claim  is  open  to  every 
equitable  defense.15 

36.  Defenses.~\ — Defendant  need  not  show  title  in  himself,  out 
may  rest  on  showing  title  out  of  plaintiff,  and  even  a  mere  pos- 
sessor, without  claim  of  title,  may  give  evidence  tending  to  raise 


1  Harper  v.  Rowe,  Cal.  1878,  7  Reporter,  174;  and  see  Chapter  XXIX.  All  the 
necessary  or  proper  documents  used  in  summary  proceedings  in  a  matter  pending 
before  a  court  of  record,  although  not  proceeding  according  to  the  course  of  the  com- 
mon law  in  that  particular  matter,  unless  otherwise  declared  by  law,  are  competent 
and  material  to  sustain  the  adjudication.  Embury  v.  Conner,  3  N.  Y.  611,  rev'g  2 
Sandf.  98. 

8  Abbey  Homestead  Ass.  T.  Willard,  48  CaL  614. 

8  Van  Rensselaer  v.  Vickery,  3  Lans.  67. 

4  See  paragraph  81. 

8  Such  as  residence  on  the  premises,  or  receipt  of  rents,  or  cutting  down  trees, 
and  the  like,  or  refusal  of  a  demand  for  possession.  Tyl.  Ej.  473. 

6  Jackson  v.  Harrow,  11  Johns.  434  ;    Den  dem.  Mordecai  v.  Oliver,  5  Hawks  (N. 
C.),  479. 

7  Rose  v.  Bell,  38  Barb.  25. 

8  Fosgate  v.  Herkimer  Mfg.  <fc  Hydraulic  Co.  12  N.  Y.  580,  affi'g  12  Barb.  352. 

9  2  N.  Y.  R.  S.  306,  §§  26,  27. 

10  Gillet  v.  Stanley,  1  Hill,  121  ;  Sharp  T.  Ingraham,  4  Id.  116. 

11  Sharp  v.  Ingraham  (above);  Tyl.  Ej.  199. 
18  Tyl.  Ej.  476. 

13  Butler  v.  1'helps,  17  Wend.  642.     Compare  Gregg  v.  Sayrc,  8  Pet.  244;  Clason 
v.  Rankin,  1  Duer,  337. 

14  Lamed  v.  Hudson,  57  N.  Y.  151.     As  to  damages,  see  Vandevoort  v.  Gould,  36 
N.  Y.  639. 

15  Jackson  v.  Loomis,  4  Cow.  168. 


EJECTMENT.  715 

a  presumption  that  the  title  under  which  the  plaintiff  claims  is 
extinct.1  If  plaintiff  has  only  shown  a  possessory  title,  it  is 
enough  for  defendant  to  show  a  prior  possession  within  the 
period  fixed  by  the  statutes  of  limitations.  Under  the  new  pro- 
cedure, an  equitable  defense  may  be  proved.2  Under  a  general 
denial,  defendant  may  controvert  any  fact  which  plaintiff  is 
bound  to  establish  to  make  out  title  and  right  of  possession  at 
the  commencement  of  the  action  ;  but  he  cannot  prove  a  dis- 
charge of  a  cause  of  action  then  existing  in  plaintiff  against 
him. 

37.  —  adverse  possession.'] — Adverse   possession    must    be 
shown  to  have  been  based  on  a  claim,  of  title.     Oral  claim  with- 
out written  foundation  is  not  enough,  except  as  to  land  of  which 
actual  occupation  is  shown.4    The  possession  must  be  shown  to 
have   been   open,  visible,  notorious,  exclusive,  and    adverse   to 
plaintiff's  title.     It  must  be  such  that  owner  may  be  presumed 
to  know  that  there  is  possession  adverse  to  his  title;  though  actual 
knowledge  is  not  necessary.5    It  is  not  made  out  by  inference, 
but  by  clear  and  positive  proof.     Every  presumption  is  in  favor 
of  possession  in  subordination  to  title  of  true  owner.6 

Ripe  adverse  possession,  being  shown,  is  not  rebutted  by  a 
subsequent  admission  of  not  having  title ; 7  but  oral  admissions, 
though  to  a  stranger,  are  competent  to  show  an  agreement  to 
hold  under  the  true  owner.8  Evidence  of  the  manner  of  occupa- 
tion and  of  the  conduct  of  others,  tending  to  negative  the  idea 
of  a  subordinate  possession,  is  competent.9 

38.  Bona  fide  purchaser.'] — The  facts  giving  the  right  to  pro- 
tection must  be  proved  ;  and  must  be  alleged,  to  be  admissible  in 
evidence.10    Subject  to   qualifications    below   stated,  applicable 
where  protection  depends  on  the  recording  act,  a  party  relying  on 
the  plea  that  he  is  a  bona  fide  purchaser,  entitled  to  hold  notwith- 
standing fraud,  must  prove  apparently  perfect  title  to  a  vested 
estate,  by  a  regular  conveyance.11    The  statement  of  consideration 

I  Tyl.  Ej.  664.     Compare  Greenleaf  v.  Birth,  6  Pet.  302  ;  Foster  v.  Joice,  3  Wash. 
C.  Ct.  498. 

8  Crary  v.  Goodman,  12  N.  T.  266. 

3  Raynor  v.  Timerson,  46  Barb.  618.     But  compare  Ford  v.  Sampson,  8  Abb.  Pr. 
332,  s.  c.  30  Barb.  183,  17  How.  Pr.  447. 

4  The  requisites  of  the  claim  and  of  the  possession  are  prescribed  by  statute.   See 
1  Abb.  N.  Y.  Dig.  new  ed.  39 ;  Tyl.  Ej.  859,  Ac. 

4  2  Greenl.  Ev.  §  430. 
8  Id.  894,  note  5. 

II  Stuyvesant  v.  Tompkins,  9  Johns.  61,  nffi'd  in  11  Id.  569. 

8  Read  v.  Thompson,  5  Penn.  St.  327 ;  Moore  v.  Small,  9  Id.  194. 

9  Fellows  v.  Fellows,  37  N.  H.  76,  86. 

IOBoone  v.  Chiles,  10  Pet.  177,  211.  And  see  Frost  v.  Beekman,  1  Johns.  Ch. 
288. 

11  Boone  v.  Chiles,  (above);  Life  Ins.  A  TrnstCo.  v.  Cutler,  3  Sandf.  Ch.  176.  But 
color  of  title  with  adverse  possession  in  the  grantor  is  competent.  Tompkins  v.  An- 
thon,  4  Sandf.  Ch.  97.  In  case  of  purchase  under  a  decree,  regularity  hi  the  decree 
need  not  be  shown.  Gallatian  v.  Cunningham,  8  Cow.  361. 


716  ACTIONS  AFFECTING  REAL  PROPERTY. 

contained  in  the  deed  is  not  sufficient  ;l  but  actual  payment  before 
notice  must  be  shown.2  An  erroneous  statement  of  consideration 
in  the  deed  does  not  preclude  evidence  of  the  true  consideration.8 
The  valuable  consideration  requisite  to  be  proved  is  of  the  same 
character  as  required  in  the  case  of  negotiable  paper.4  If  pro- 
tection is  claimed  under  a  conveyance  by  way  of  security  for  a 
past  indebtedness,  an  agreement  for  forbearance  will  not  be  pre- 
sumed in  support  of  the  claim,  but  must  be  proved.5  A  release 
or  quitclaim,  if  available  at  all  for  the  purpose,6  especially  re- 
quires extrinsic  evidence  of  consideration/  Want  of  notice 
must  be  proved,  and  must  be  alleged,  or  is  not  admissible.8  Under 
an  allegation  relating  to  the  principal,  notice  to  his  agent  may  be 
proved.9  Allegation  of  want  of  notice  on  the  part  of  one  owner 
does  not  admit  evidence  of  want  of  notice  on  the  part  of  an- 
other.10 Unless  otherwise  provided  by  statute,  actual  knowledge 
of  an  existing  instrument  is,  in  legal  effect,  the  equivalent  to 
notice  by  its  record.11  A  purchaser  who  had  knowledge  of  a  fact 
sufficient  to  put  him  to  inquiry,  is  presumed  to  have  made  in- 
quiry, and  is  chargeable  with  notice  of  whatever  it  appears  he 
could  have  ascertained  by  the  inquiry  upon  which  the  circum- 
stances should  have  put  him.12  This  presumption  may  be  rebutted 
by  evidence  that  he  made  due  inquiry,  and  failed  to  ascertain  the 
fact.13 

For  the  purpose  of  proving  the  grantee  a  ~bona  fide  purchaser 
within  the  meaning  of  the  recording  acts,  the  acknowledgment 
in  the  deed  is  prima,  facie  evidence  that  the  consideration, 
acknowledged  to  be  paid,  was  paid.14 

As  between  one  claiming  record  title,  and  one  claiming  under 
a  prior  equity  or  unrecorded  instrument,  the  burden  is  on  the 
latter  to  show  actual  notice  to  the  subsequent  purchaser  of  his 


1  Bolton  v.  Jacks,  6  Robt.  166,  284 ;    Jackson  v.  Cadwell,  1  Cow.  622 ;    Lloyd   v. 
Lynch,  28  Penn.  St.  419;  Seymour  v.  Wilson,  19  N.  Y.  417. 

2  Jewett  v.  Palmer,  7  Johns.  Ch.  65. 

3  Paragraph  9,  and  cases  cited. 

4  See  Pickett  v.  Barren,  29  Barb.  505,  and  cases  cited ;  De  Lancey  v.  Stearns,  66 
N.Y.  157. 

6  Cary  v.  White,  52  N.  Y.  138. 
6  May  v.  Le  Claire,  11  Wall.  217. 
1  Boone  v.  Chiles,  10  Pet.  177,  212. 

8  Atty.-Gen.  v.  Biphosphated  Guano  Co.  27  Weekly  R.  621 ;    Gallatian  v.  Cun- 
ningham, 8  Cow.  361;    Balcom  v.  N.  Y.  Life  Ins.  &  Trust  Co.  11  Paige,  454;    Boone 
v.  Chiles  (above). 

9  Griffith  v.  Griffith,  Hoff.  Ch.  153. 

10  Atty.-Gen.  v.  Biphosphated  Guano  Co.  (above). 

11  Patterson  v.  De  La  Ronde,  8  Wall.  292  ;  Crane  v.  Turner,  67  N.  Y.  437,  affi'g  7 
Hun,  857. 

12  Reed  v.  Gannon,  BO  N.Y.  345,  rev'g  3  Daly,  414 ;  Cordova  v.  Hood,  17  Wall.  1. 
And  see  M:ixfieli  v.  Burton,  L.  R.  17  Eq.  15,  s.  c.  7  Moak's  Eng.  642.     But  compare 
Wilson  v.  Wall,  6  Wall.  83,    91 ;  Acer  v.  Westcott,  46  N.  Y.  384,  rev'g  1  Lans.  193. 

13  Reed  v.  Gannon  (above). 

14  See  paragraph  9. 


DETERMINATION  OF  CONFLICTING  CLAIMS.  717 

rights,  or  prove  circumstances  such  as  would  put  a  prudent  man 
upon  his  guard  and  from  which  actual  notice  may  be  inferred.1 
Actual,  open  and  visible  possession,  inconsistent  with  the  title  of 
the  apparent  owner  by  the  record,  is  evidence  of  notice  ;2  not  so 
of  occupation  which  is  equivocal,  occasional,  or  for  a  special  or 
temporary  purpose.  Constructive  possession  will  not  suffice.3 

Conveyance  taken  for  value  and  without  notice  may  be  pre- 
sumed to  have  been  taken  in  good  faith,  in  the  absence  of  other 
evidence.4 

Record  of  an  instrument  within  the  purview  of  the  statute,5 
and  duly  authenticated  so  as  to  be  entitled  to  record,  is,  as  the  re- 
cording acts  are  usually  framed,  effectual  notice,  irrespective  of 
omissions  in  spreading  it  upon  the  record,6  or  its  omission  from 
the  index,7  or  the  subsequent  destruction  of  the  record  ;8  and  is 
conclusive  evidence  of  notice  of  the  instrument  from  the  time  of 
such  record,  but  is  not  necessarily  notice  of  collateral  facts  stated 
in  the  instrument.9  Evidence  that  a  party  actually  saw,  or  had 
information  of  an  instrument  upon  the  record,  is  notice  of  it  to 
him,  although  it  was  not  legally  entitled  to  record.10 

The  pendency  of  an  action  (without  notice  of  Us  pendens  filed 
under  the  statute),  is  notice  only  during  its  pendency,11  and  of  the 
right  established  by  the  decree  finally  made ;  not  of  collateral 
matters  stated  in  the  proceedings.13 

II.  ACTIONS  TO  DETERMINE  CONFLICTING  CLAIMS. 

39.  Mode  of  proof.'] — Plaintiff  must  show,  by  direct  evi- 
dence,13 an  actual  possession14  existing  for  the  statute  period,15 
and  continuing  up  to  the  time  of  commencing  the  action,16  under 


1  Brown  v.  "Volkening,  64  N..T.  78. 
s  Raynor  v.  Timerson  64  N.  Y.  639. 

3  Brown  v.  Volkening,  64  N.  Y.  76. 

4  See  Franklin  v.  Osgood,  14  Johns.  527;  New  Orleans  Canal  and  Banking  Co. 
v.  Montgomery,  95  U.  S.  (5  Otto),  16. 

6  Otherwise  of  instruments  not  authorized  to  be  recorded.     Boyd  v.  Schlesinger, 
69  N.  Y.  301 ;   Washburne  v.  Burnham,  63  N.  Y.  132. 
6  Riggs  v.  Boylan,  4  Biss.  445. 
1  Mutual  Life  Ins.  Co.  v.  Dake,  1  Abb.  New.  C&a.  381. 

8  Shannon  v.  Hall,  72  111.  354,  8.  o.  22  Am.  R   146. 

9  Murray  v.  Ballon,  1  Johns.  Cb.  566 ;  Crofut  v.  Wood,  3  Hnn,  671 ;    Mills  v. 
Smith,  8  Wall.  27. 

10  Cramer  v.  Lepper,  26  Ohio  St.  59,  a.  c.  20  Am.  R.  756. 

11  Leitch  v.  Wells,  48  N.  Y.  585. 

12  Paige  v.  Waring,  8  Abb.  New  Cas. 

13  The  presumption  that  possession  existing  at  an  earlier  time  continued,  is  not 
sufficient.     Cleveland  v.  Crawford,  7  Hun,  616. 

14  Churchill  v.  Onderdonk,  69  N.  Y.  134.     The  constructive  possession  which  fol- 
lows seizin  in  law,  is  not  enough.     Id. 

15  Three  years,  by  2  N.  Y.  K.  S.  812 ;  3  Id.  6  ed.  679,  §  1. 

16  Boylston  v.  Wheeler,  61  N.  Y.  621 ;  Haynes  v.  Onderdonk,  2  Hun,  619,  8.  c.  5 
Supm.  Ct.  (T.  <fc  C.)  176;  Brooks  v.  Calderwood,  34  CaL  663. 


718  ACTIONS  AFFECTING  REAL  PROPERTY. 

a  claim  of  title,1  such  as  is  specified  by  the  statute  ;3  and  this 
makes  a  prima  facie  case,  and  compels  defendants  to  show  their 
title,3  unless  their  answer  disavows  claim,4  in  which  case  plaintiff 
must  prove  the  fact  of  their  claim.5 

If  plaintiffs  'possession  is  under  an  unfounded  claim,  it  is 
enough  for  defendant  to  show  a  prior  possession.6 

Title,  claim  of  title  and  possession  may  be  proved  in  the  same 
manner  as  in  ejectment. 


III.   ACTIONS  TO  REMOVE  CLOUD  ON  TITLE. 

40.  Mode  of  proof. ~\ — Plaintiffs  title,  if  in  issue,  must  be 
proved.7 

As  to  defendant's  claim,  evidence  which  would  be  appropriate 
to  sustain  ejectment,8  or  an  action  for  the  determination  of  con- 
flicting claims,9  is  not  enough.  Plaintiff  must  show  that  the  claim 
or  lien10  which  he  seeks  to  remove,11  purports  to  affect  injuriously12 
his  real  estate,13  and  appears  on  its  face  to  be  valid,  and  that  the 
defect  in  it,  on  which  he  relies u  to  show  its  invalidity,  can  be 
made  to  appear  only  by  extrinsic  evidence,15  and  will  not  neces- 


1  Mere  possession  is  not  enough.      Stark  T.  Starrs,  6  "Wall.  402.    But  possession 
trader  a  void  deed  is.     Ford  v.  Belmont,  69  N.  Y.  567,  570,  affi'g  35  Super.  Ct.  (J. 
<fe  S.)  135  ;  Schroeder  v.  Gurney,  10  Hun,  413. 

2  2  N.  Y.  R.  S.  (above),  and  N.  Y.  L.  1860,  p.  295,  c.  173. 

3  Ford  v.  Belmont  (above). 

4  Boylston  v.  Wheeler,  5  Supm.  Ct.  (T.  <fe  C.)  179,  s.  o.  2  Hun,  622. 

5  Davis  v.  Read,  65  N.  Y.  666. 

6  Ford  v.  Helmont  (above). 

7  Wing  v.  Slierrer,  77  111.  200.     For  the  mode  of  proof,  see  the  previous  para- 
graphs of  this  chapter. 

8  Bockesv.  Lansina:,  13  Hun,  38,  affi'd  Id.  iv. 
»  Bailey  v.  BriggC56  N.  Y.  407. 

10  It  is  not  essential  however,  that  the  claim  or  lien  be  wholly  of  record.      Fonda 
71  Sage,  48  N.  Y.  173. 

11  Or  to  prevent.    Crook  v.  Andrews,  40  N.  Y.  547,  651 ;  N.  Y.  A  H.  R.  R.  Co.  v. 
Trustees  of  Morrisania,  7  Hun,  652.    If  the  action  is  to  prevent  the  creating  of  cloud, 
he  must  show  that  there  is  a  determination  on  defendant's  part  to  create  it.    Danger 
that  it  may  be  created  is  not  enough.  Sanders  v.  Village  of  Yonkers,  63  N.Y.  489,  492. 

12  Hartman  v.  Reed,  50  Cal.  485. 

13  Smith  v.  Mayor,  Ac.  of  N.  Y.  68  N.  Y.  552.    As  to  leasehold,  see  Hebrew  Free 
School  Ass.  v.  Mayor,  <tc.  of  N.  Y.  4  Hun,  446. 

14  If  a  ground  of  invalidity  which  would  not  appear  in  the  record  of  the  claim  or 
lien  is  proved,  the  relief  may  be  granted  although  another  ground  o'f  invalidity  ex- 
ists which  would  appear  by  the  record.    Boyle  v.  City  of  Brooklyn,  71  N.  Y.  l,rev'g 
8  Hun,  32. 

15  To  illustrate:  Absence  of  evidence  of  authority  of  an  attorney  to  convey  is  an 
obvious  defect,  and  a  claim  thus  imperfect  is  not  a  cloud.     Washburne  v.  Burnham, 
63  N.  Y.  132.    And  compare  p.  C96  of  this  vol.    But  the  fact  that  a  deed  under  which 
the  claim  is  made  was  forged,  but  has  nevertheless  been  proved  and  recorded,  is  a 
defect  which  must  be  shown  by  extrinsic  evidence,  because  the  certificates  are  pre- 
sumptive evidence  of  genuineness;   and  therefore  the  deed  is  a  cloud.     Remington 
Paper  ('o.  v.  O'Dongheity,  16  Hun,  594.      So  of  the  fact  that  one  claiming  to  be  a 
bona  fide  purchaser  took  with  notice  of  a  lost  deed  under  which  plaintiff  claims. 
Findlay  v.  Hinde,  1  Pet.  241.   If  the  entire  evidence  is  on  record  as  a  part  of  the  title, 
the  relief  may  be  refused.     Schroeder  v.  Gurney,  73  N.  Y.  430,  affi'g  10  Hun,  413. 


FORECLOSURE.  719 

sarily  appear  in  proceedings  by  the  claimant  to  enforce  it.1  If 
the  objection  appears  on  the  face  of  the  instrument  or  record,2  or 
the  claimant  would  necessarily  develop  it  by  the  proof  which  he 
would  be  obliged  to  produce,3  the  action  is  not  sustained,  unless 
either  the  common  law  or  a  statutory  presumption  of  the  regu- 
larity of  official  acts  would  avail  to  make  the  claim  presumptively 
valid.4  When  the  necessary  extrinsic  evidence  is  wholly  oral,  the 
ground  of  relief  becomes  the  stronger.5 

IY.  ACTIONS  OF  FORECLOSURE. 

41.  Forclosure  of  vendor's  lien.'] — The  law  implies  the  lien 
against  the  purchaser,  and  against  subsequent  purchasers  and  in- 
cumbrancers,  if  they  had  notice,  or  if  they  took  without  considera- 
tion or  assumption  of  liability.   A  recital  in  the  deed,  of  a  considera- 
tion to  be  paid  at  a  future  day,  is  enough  to  charge  with  notice.6 
The  burden  is  on  the  purchaser  to  prove  a  waiver  of  the  lien.7 
Any  act  which  manifests  the  intent  of  the  vendor,  in  conveying 
or  in  subsequently  dealing  with  the  claim,  to  waive  or  abandon 
the  lien,  is  competent.     Taking  a  personal  obligation,  payable  to 
the  vendor  made  by  the  purchaser  alone,  is  no  evidence  of  waiver.8 
Taking  other  security  is  not  conclusive  evidence  of  waiver,  but 
throws  the  burden  on  the  vendor  to  prove  clearly  that  there  was 
no  intention  to  waive.9    Plaintiff  suing  to  foreclose  his  lien  before 
conveyance,  need  not  prove  tender  of  a  deed.10 

42.  Foreclosure  of  mortgage^ — The  bonci.  or  note,  if  any, 
must  be  produced  and  proved,  or  be  accounted  for  and  secondary 
evidence  given,11  for  this  is  the  primary  evidence  of  the  debt.12 
The  recital  in  the  mortgage  of  the  existence  of  the  bond  or  note,  is 


1  The  leading  recent  expositions  of  the  general  rule  are :  Marsh  v.  City  of  Brook- 
lyn, 59  N.  Y.  230,  rev'g  2  Hun,  142,  s.  o.  4  Supm.  Ct.  (J.  &  C.)  413  ;  and  Guest  v. 
City  of  Brooklyn,  69  N.  Y.  606,  affi'g  8  Hun,  97. 

4  Hannewinkle  v.  Georgetown,  15  Wall.  547. 

3  Guest  v.  City  of  Brooklyn  (above) ;  Howell  v.  City  of  Buffalo,  2  Abb.  Ct.  App. 
Dec.  412. 

4  Mayor,  <fec.  of  N.  Y.  v.  North  Shore,  <fcc.  Ferry  Co.  9  Hun,  620. 

6  Marsh  v.  City  of  Brooklyn  (above). 

•  Cordova  v.  Hood,  17  Wall.  1,  5. 

7  Garson  v.  Green,  1  Johns.  Ch.  308. 

8  6  Abb  N.  Y.  Dig.  new  ed.  110;  Cordova  v.  Hood,  17  "Wall.  1, 6,  and  cases  cited. 

•  Auburn  v.  Settle,  3  Supm.  Ct.  (T  &  C  )  258 ;  42  Miss.  792,  s.  c.  2  Am.  R.  CM}. 

10  Frccson  v.  Bissell,  63  N.  Y.  108.      Otherwise  if  neither  party  holds  the  legal 
titlo.    Thomson  v.  Smith,  63  N.  Y.  301. 

11  Chewning  v.  Procter,  2  M'Cord,  11.    Tho  mode  of  proving  execution  hns  been 
already  stated.     Pages  693,  504-8,  of  this  vol.     As  to  mortgage  by  religious  corpora- 
tion, seo  Moore  v.  Rector,  <fec.  of  St.  Thomas'  Ch.  4  Abb.  .T^ew  Cas.  61,  and  cases 
cited.    As  to  assent  of  stockholders  when  required  on  a  corporate  mortgnge,  see  Green- 
point  Sugar  Co.  v.  Whitin,  69  N.  Y.  328,  affi'g  7  Hun,  44.     Plaintiff  may  prove  that 
a  deed,  absolute  in  terms,  was  in  fact  a  mortgage.      Hughes  v.  Edwards,  9  Wheat. 
489,  494,  and  .«ee  pp.  721,  722  of  this  vol.     The  burden  is  on  him  to  show  that  tho 
deed  was  taken  for  his  benefit  and  as  security.    Fullerton  v.  McCurdy,  65  N.  Y.  687. 

18  Jackson  v.  Blodgett,  6  Cow.  202,  206,  and  see  Langdon  v.  Buel/»  Wend.  80,  83. 


720  ACTIONS  AFFECTING  REAL  PROPERTY. 

secondary  evidence  of  that  fact,1  but  not  conclusive.3  A  variance 
in  the  date 8  or  in  the  allegation  of  the  obligation  or  covenant,4  is 
not  fatal  if  defendant  has  not  been  misled.  The  bond  and  mort- 
gage are  presumptive  evidence  of  consideration.5  The  law  of  the 
place  where  the  contract  was  made,  although  without  the  State, 
may  be  proved  on  a  question  of  usury.6 

In  those  jurisdictions  where  a  mortgage  collateral  to  negotia- 
ble paper  has  the  advantages  resulting  from  negotiability  in  the 
hands  of  a  bona  fide  transferee,  such  a  mortgage7  or  deed  of 
trust,8  held  by  an  assignee  before  maturity,  is  presumed  to  have 
been  taken  for  value  and  in  good  faith.9 

43.  Defendant's  liability,  demand  and  default.] — A  grantee 
of  the  premises  taking  merely  subject  to  the  mortgage,  as  distin- 
guished from  one  taking  subject  to  the  payment  of  the  mortgage, 
cannot  be  presumed  to  have  assumed  to  pay  the  mortgage.10  One 
who  has  effectually  assumed  payment  in  favor  of  plaintiff,11  is 
estopped  from  questioning  the  validity  of  the  mortgage,12  but  not 
from  proving  payment.13  If  two  persons  incumber  their  several 
lands  by  one  mortgage,  the  debt  is  presumed  that  of  both  equally.14 

Default  in  payment  is  sufficiently  proved  by  production  and 
proof  of  the  bond  and  mortgage,  if  apparently  overdue,  even  by 
default  under  the  usual  interest  clause.15  Payment  of  taxes  and 
assessments  may  be  proved  by  the  official  receipt.  Payment  of 
insurance  should  be  proved  by  a  witness  and  the  receipts  for 
premiums  will  then  be  competent  but  not  essential. 

On  a  question  of  priority  of  lien,16  the  relative  dates  of  the 
instruments,  and  their  acknowledgment  are  relevant  but  not  con- 
clusive.17 The  rule  that  acceptance  of  a  beneficial  instrument  will 

1  See  Cooper  v.  Newland,  17  Abb.  Pr.  343. 

9  Gaylord  v.  Knapp,  15  Hun,  87.     Compare  Burger  v.  Hughes,  5  Hun,  180 

3  Ontario  Bank  v.  Schermerhorn,  10  Paige,  109. 

4  Hadley  v.  Chapin,  11  Paige,  245. 

5  Russell  v.  Kinney,  1  Sandf.  Ch.  34,  s.  c.  2  N.  Y.  Leg.  Obs.  233,  affi'd  2  Sand£ 
Ch.  81,  note.     As  to  estoppel  by  certificates  or  representations,  see  Lee  v.  Monroe,  7 
Cranch,  366 ;  and  the  defense  of  USUBY. 

6  Lewis  v.  Ingersoll,  3  Abb.  Ct.  App  Dec.  55,  s.  c.  1  Keyes,  347 ;  and  see,  as  to  law 
of  place,  Dickinson  v.  Edwards,  7  Abb.  New.  Cas.  65,  rev'g  2  Abb.  New.  Cas.  300. 

1  Carpenter  v.  Longan,  16  Wall.  271,  273. 

8  New  Orleans  Canal  and  Banking  Co.  v.  Montgomery,  95  U.  S.  (5  Otto),  16. 

'  See  chapter  on  NEGOTIABLE  PAPER. 

10  Tillotson  v.  Boyd,  4  Sandf.  516;   Binsse  v.  Paige,  1  Abb.  Ct.  App.  Dec.  138; 
Collins  v.  Rowe,  1  Abb.  New.  Cas.  97;   Cashman  v.  Henry,  2  Abb.  New.  Cas.  230,  s. 
c.  75  N.  Y.  103.     For  the  presumption  as  to  price,  in  conveyance  subject  to  mort- 
gage, see  Johnspn  v.  Zink,  51  N.  Y.  333,  affi'g  22  Barb.  396. 

11  The  Pennsylvania  doctrine  requires  extrinsic  evidence,  that  a  grantee  merely 
"subject  to  the  payment"  assumed  liability.    Thomas  v.  Wiltbank,  8  Reporter,  442. 

12  Hartley  v.  Harrison,  24  N.  Y.  170;  Smith  v.  Cross,  16  Hun,  487. 

13  Hartley  v.  Tatham,  2  Abb.  Ct.  App.  Dec.  333. 

14  Hoyt  v.  Doughty,  4  Sandf.  462. 

15  Sowarby  v.  Russell,  4  Abb.  Pr.  N.  S.  238,  s.  c.  6  Robt.  322. 

16  As  to  what  claims  are  within  the  usual  allegation,  see  Knick.  Life  Ins.  Co.  v. 
Nelson,  7  Abb.  New.  Cas.  170,  and  cases  cited,  affi'g  13  Hun,  321. 

17  Wyekoff  v.  Remaen,  11  Paige,  664. 


FORECLOSURE.  721 

be  presumed,  does  not  avail  to  give  it  priority,  in  the  absence  of 
evidence  that  the  claimant  had  notice  of  its  existence,  with  evi- 
dence of  such  additional  circumstances  as  will  afford  a  reasonable 
presumption  of  his  acceptance  of  it.1  A  junior  mortgagee  who 
has  foreclosed  and  bought  in,  is  presumed  to  have  bid  to  the  value 
of  the  equity  of  redemption  only ;  and  will  be  deemed  to  hold 
subject  to  the  senior  mortgage.8 

44.  Defenses.} — A  material  fraudulent  alteration  of  the  bond 
or  mortgage  by  the  party  is  a  bar.3  Failure  of  title  without  evic- 
tion or  disturbance  of  possession  in  case  of  a  purchase  money 
mortgage  is  not  a  defense,4  unless  fraud  or  misrepresentation  is 
proved,  and  to  be  admissible  these  must  be  alleged.5 

A  contemporaneous  oral  agreement  as  to  time  of  payment, 
contradictory  to  the  terms  of  the  mortgage,  is  not  competent."  A 
collateral  agreement  for  the  application  of  a  cross  indebtedness 
may  be  proved,7  but  not  so  as  to  vary  the  contract  by  parol.8  Where 
plaintiff  is  an  assignee,  the  debtor  may  prove,  in  support  of  an 
allegation  of  payment,  that  he  himself  furnished  the  money  with 
which  the  assignment  was  procured.9  Intent  to  merge  may  be 
presumed  from  the  act  of  the  owner  of  the  equity  of  redemption 
in  taking  an  assignment  of  the  mortgage ; 10  but  even  his  declara- 
tion that  he  is  absolute  owner  is  not  conclusive.11  The  presump- 
tion of  payment  resulting  from  lapse  of  time,12  may  be  repelled 
by  evidence  of  part  payment,  or  written  acknowledgment,  made 
by  the  debtor  within  twenty  years,  even  though  made  after  he 
had  parted  with  his  interest  in  the  property.13  Where  the  statute 
does  not  thus  require  particular  evidence,14  the  presumption  may 
be  repelled  by  circumstances,  even  against  a  mortgagee  or  his 
assigns  in  possession.19 


1  Bell  v.  Farmers'  Bank  of  Kentucky,  11  Bush,  34,  s.  c.  21  Am.  R.  205;  Parmelee 
V.  Simpson  5  Wall.  81,  85. 

»  Mathews  v.  Aiken,  1  N.  T.  595. 

8  Waring  v.  Smyth,  2  Barb.  Ch.  119,  135,  and  see  paragraph  1. 

4  Noonan  v.  Lee,  2  Black.  499 ;  Farnham  v.  Hotchkiss,  2  Abb.  Ct.  App.  Dec.  93. 

*  Noonan  v.  Lee  (above). 

*  Hunt  v.  Bloomer,  5  Duer,  202.     As  to  oral  agreement  to  vary  the  consideration 
or  condition,  compare  Townsend  v.  Empire  Stone  Dressing  Co.  6  Duer,  208 ;  Kim- 
ball  v.  Meyers,  21  Mich.  276,  8.  c.  4  Am.  R.  487.     As  to  effect  of  diversion  of  the 
proceeds,  see  Graver  v.  Wilson,  14  Abb.  Pr.  N.  S.  374. 

1  Peck  v.  Minot,  3  Abb.  Ct.  App.  Dec.  465 ;  Hartley  v.  Tatham,  2  Abb.  Ct  App. 
Dec.  833. 

8  Forsythe  v.  Kimball,  91  U.  S.  (1  Otto),  291. 

»  McLemore  v.  Pinkston,  31  Ala  266 ;  and  see  pp.  4  and  8  of  this  vol.     The  rules 
as  to  proving  payment  are  more  fully  stated  in  connection  with  PAYMENT  as  a  defense. 
'* Gardner  v.  Astor,  3  Johns.  Ch.  53;  Starr  v.  Ellis,  6  Id.  393. 
11  James  v.  Morey,  2  Cow.  246,  285,  807,  313. 

13  A  legal  presumption  independent  of  the  Statute  (see  PAYMEJTT  as  a  defense),  and 
fixed  by  statute  nt  twenty  years  (2  N.  Y.  R.  S.  301,  §  48),  even  in  case  of  a  mortgage 
to  secure  an  unsealed  note  (Heyer  v.  Pruyn,  7  Paige,  465). 

13  New  York  Life  Ins.  <fe  Trust  Co.  v.  Covert,  3  Abb.  Ct.  App.  Dec.  850. 

14  Hughes  v.  Edwards,  9  Wheat.  489,  497. 

10  Brobst  v.  Brock,  10  Wall.  519,  and  cas.  cit. 

40 


722  ACTIONS  AFFECTING   REAL  PROPERTY. 

i 

Unconditional1  tender  by  the  debtor2  of  the  whole  debt8  at  a 
time  when  the  creditor  was  bound  to  receive  it 4  discharges  the 
lien.5  The  twenty  years  limitation  of  the  mortg.ige  is  not 
shortened  by  the  fact  that  it  was  to  secure  a  note,  unsealed  and 
barred  in  six  years,6  but  a  discharge 7  or  release 8  of  the  bond  or 
note  discharges  the  mortgage. 

Defendants,  who  do  not  set  up  any  equities  as  against  plaint- 
iff, should  not  be  allowed  to  delay  his  judgment  by  litigating 
issues  between  themselves,  as  to  their  priorities,  or  their  equities 
as  to  the  order  of  sale.9 

Y.  ACTIONS  TO  REDEEM. 

45.  Mode  of  proof, i] — Oral  evidence  is  admissible,  to  show 
that  a  deed  absolute  on  its  face  l°  was  intended  by  the  parties  as  a 
mere  security,  even  though  there  were  no  agreement  to  repay.11 
Proof  of  the  continued  existence  of  the  debt  is  influential  evi- 
dence of  a  mortgage,  but  not  essential.12  So  is  the  circumstance 
of  continued  possession  by  the '  claimant  after  apparent  convey- 
ance to  the  defendant.13  Proof  of  fraud  or  mistake  is  not  neces- 
sary.14 The  agreement  of  defeasance,  if  oral,  must  be  shown  to 
have  been  contemporaneous.15  Loose,  oral  declarations  of  inten- 
tion or  understanding  are  not  necessarily  enough.16  Evidence  that 
the  grantee  was  accustomed  to  lend  on  such  absolute  securities,  is 
not  relevant  without  anything  to  bring  it  home  to  the  knowledge 
of  the  alleged  borrower.17  Evidence  showing  only  a  right  to 
specific  performance  of  a  contract  is  a  variance.18 

A  contemporaneous  oral  agreement,  is  no  evidence  of  a  waiver 
of  the  right  of  redemption  inhering  in  a  mortgage.19  A  subse- 


1  Storey  v.  Krewaon,  55  Ind.  397,  s.  c.  23  Am.  R.  668. 
s  Harris  v.  Jex,  66  Barb.  232. 

3  Graham  v.  Linden,  50  N.  Y.  547. 

4  Hartley  v.  Tatham,  2  Abb.  Ct.  App.  Dec.  333. 

6  Kortright  v.  Cady,  21  N.  Y.  343,  reVg  23  Barb.  490;  s.  c.  5  Abb:  Pr.  358,  affi'g 
12  How.  Pr.  424;  Ketcham  v.  Crippen,  37  Cal.  223. 

6  Sparka  v.  Pico,  1  McAll.  497 ;  Heyer  v.  Pruyn,  7  Paige,  465.  Compare  Jackson 
v.  Sackett,  7  Wend.  94;  explained  in  Belknap  v.  Gleason,  11  Conn.  160. 

1  Driggs  v.  Simpson,  3  Supm.  Ct.  (T.  «fe  C.)  786,  affi'd  in  60  N.  Y.  641. 

8  Blodget  v.  Wadhams,  Hill  &  D.  Supp.  65. 

9  Smart  v.  Bement,  4  Abb.  Ct.  App.  Dec.  253;  N.  Y.  Code  Civ.  Pro.  §  521 ;  New- 
man  v.  Dickson,  1  Abb.  New  Cas.  307. 

10  Despard  v.  Walbridge,  15  N.  Y.  374.     Or  a  conditional  sale  for  an  agreed  price. 
Rnssell  v.  Southard,  12  How.  U.  S.  139. 

11  Horn  v.  Keteltas,  46  N.  Y.  605,  s.  o.  42  How.  Pr.   138 ;  compare  Fullerton  T. 
McCurdy,  55  N.  Y.  637. 

14  Campbell  v.  Dearborn,  109  Mass.  130,  s.  o.  12  Am.  R.  671,  and  cas.  cit. 
"Id. 

14  Strong  v.  Stewart,  4  Johns.  Ch.  167;  Hodges  v.  Tenn.  <fcc.  Ins.  Co.  8  N.  Y.  416. 

15  Barrett  v.  Carter,  3  Lans.  68. 
"  1  Greenl.  Ev.  13  ed.  331. 

17  Sugart  v.  Mays,  54  Geo.  554. 

18  Fullerton  v.  McCurdy,  55  N.  Y.  637. 

w  Peugh  v.  Dayis,  96  U.  S.  (6  Otto)  332.  Or  in  an  absolute  deed  and  contemporane- 


REDEMPTION.— PARTITION.  723 

qnent  release  cannot  be  inferred  from  equivocal  circumstances 
and  loose  expressions,  but  must  appear  by  express  writing  or  by 
such  facts  as  estop.1  And  it  must  be  for  an  adequate  considera- 
tion.2 On  this  question  the  value  of  the  property  and  the  fact  of 
possession  and  enjoyment  are  relevant.3  The  making  of  a  pay- 
ment is  evidence  against  the  payer,  of  his  obligation,  but  is  slight 
if  any  evidence,  against  the  receiver,  of  the  payer's  title.4 

VI.  ACTIONS  OF  PARTITION. 

46.  Mode  of  proof ^\ — Title  may  be  proved  as  in  ejectment.5 
This,  with  evidence  of  possession,  actual  or  constructive,6  (and 
possession  may  be  proved  under  the  general  allegation  of  seizin  *) 
\% primob facie  enough.8  Proof  of  legal  title,  in  the  absence  of 
any  adverse  possession,  raises  a  sufficient  presumption  of  posses- 
sion.9 A  variance  in  stating  the  parties'  interest,10  or  describing 
the  premises,11  is  not  fatal.  In  an  action  to  test  the  validity  of 
an  alleged  devise  under  the  statute,12  the  burden  is  on  plaintiff 
claiming  against  it  to  establish  its  invalidity.13 

An  ouster  or  adverse  possession,  relied  on  by  a  defendant, 
should  be  pleaded,14  unless  it  appears  in  the  complaint.15  But  the 
burden  is  still  on  plaintiff  to  prove  seizin  in  common,  if  relied  on.1* 

The  relative  claims  and  liens  of  defendants  may  be  tried  and 
settled  under  proper  allegations.17  A  tenant  in  common  claiming 
an  allowance  against  his  co-tenants  for  improvements  made  by 


ous  written  defeasance.   Palmer  v.  Gurnsey,  7  "Wend.  248.     Contra,  Cooper  v.  Whit- 
ney, 8  Hill,  95 ;  Baker  v.  Thrasher,  4  Den.  493. 

1  Peugh  v.  Davis  (above). 

2  Id. 

3  Id. 

4  James  v.  Biou,  2  Sim.  <fc  Stn.  600,  606. 

5  And  in  case  of  default  this  is  enough.     Griggs  v.  Peckham,  3  Wend.  486. 
Whether  title  may  be  litigated,  compare  Ilosford  v.  Merwin,  5  Barb.  51 ;  Sterricker 
v.  Dickinson,  9  Id.  516 ;  Van  Schuyver  v.  Mulford,  59  N.  Y.  426. 

6  This  is  necessary.     O'Dougherty  v.  Aldrich,  5  Den.  385  ;  Sullivan  v.  Sullivan, 
66  N.  Y.  37,  reVg  4  Hun,  198,  s.  c.  5  Supm.  Ct.  (T.  «fe  C.)  433.     Unless,  perhaps,  where 
the  parties  are  all  mere  remaindermen,  constructive  possession  is  enough.    Beebe  v- 
Griffing,  14  N.  Y.  235. 

7  Jenkins  v.  Van  Schaack,  3  Paige,  242. 

8  Clapp  v.  Bromaghan,  9  Cow.  530,  550,  rev'g  6  Id.  296. 

9  Brownell  v.  Brownell,  19  Wend.  367. 

10  See  Ferris  v.  Smith,  17  Johns.  221;  Thompson  v.  Wheeler,  16  "Wend.  840; 
Clnpp  v.  Bromaghan,  9  Cow.  530,  666 ;  Noble  v.  Cromwell,  3  Abb.  Ct  App.  Dec. 
882,  s.  c.  27  How.  Pr.  289,  affi'g  26  Barb.  475,  s.  c.  6  Abb.  Pr.  69. 

11  See  Corwithe  v.  Griffing,  21  Barb.  9. 

14  N.  Y.  L.  1879,  p.  400,  c.  816;  am'd'g  L.  1853,  p.  626,  c.  238,  §  2;  Voessing  T. 
Voessinir,  12  Hun,  678. 

13  Id. 

14  Jenkins  v.  Van  Schaack,  3  Paige  242;  Sterricker  Y.  Dickinson,  9  Barb.  616,  621. 

15  Burhnns  v.  Burhans,  2  Barb.  Ch.  398,  410. 
14  Clnpp  v.  Bromaghan,  9  Cow.  530. 

11  Bogardus  v.  Parker,  7  How.  Pr.  305,  N.  Y.  Code  Civ.  Pro.  §  521.  For  the  rule 
where  there  ore  mortgages  of  one  tenant's  interest,  see  Green  v.  Arnold,  11  R.  L  864, 
B.  o.  23  Am.  R.  466. 


724  ACTIONS  AFFECTING  REAL  PROPERTY. 

him,  need  not  show  a  request  or  promise ;  *  otherwise  of  a  stranger 
or  sub-tenant  who  improved  at  his  own  risk.2 

The  mode  of  ascertaining  present  value  of  life  estates  is  in 
some  cases  regulated  by  a  statute  or  rule  of  court.3  Where  it  is 
not,  or  if  the  statute  or  rule  merely  refers  to  the  principles  gov- 
erning annuities,  &c.,  any  standard  table,  recognized  by  the  court, 
or  shown  to  be  such  by  the  testimony  of  a  qualified  witness,  is  com- 
petent ; 4  and  evidence  that  the  condition  of  health  and  strength  is 
substantially  different  from  that  usually  enjoyed  by  persons  of 
the  same  age  is  competent  for  the  purpose  of  varying  the  conclu- 
sion drawn  from  the  table;5  in  the  absence  of  such  evidence  the 
tables  will  prevail.6  The  opinion  of  witnesses  as  to  the  cash 
value  of  a  life  estate  is  not  admissible.7 


1  Green  v.  Putnam,  1  Barb.  500. 

s  Scott  v.  Guernsey,  48  N.  Y.  106,  123,  affi'g  60  Barb.  163. 

8  See  N.  Y.  L.  1840,  p.  128,  c.  177  (3  R.  S.  6  ed.  692),  N.  Y.  Rule  of  Court  No.  76, 
of  1878  (formerly  No.  85). 

4  The  court  may  take  judicial  notice  that  the  tables  produced  are  approved 
standards.  See  McHenry  v.  Yokum,  27  HI.  160;  Donaldson  v.  R.  R.  Co.  18  Iowa, 
280,  291 ;  Wager  v.  Schuyler,  1  Wend.  553.  American  tables  and  experts  in  insur- 
ance testify  to  a  probability  of  longer  life  than  indicated  in  the  Northampton  Tables, 
and  somewhat  longer  than  indicated  in  the  Carlisle. 

The  following  tables  have  been  recognized  by  the  courts :  American  Experience  Table 
(contained  in  the  Michigan  Insurance  Company  act.  Comp.  Laws,  997).  Brown  v. 
Bronson,  35  Mich.  415.  Also  contained  in  2  N.  Y.  R.  S.  6  ed.  678.  Wigglesworth's 
(cited  from  2  Am.  Ac.  of  A.  &  S.  131).  Estabrook  v.  Hapgood,  10  Mass.  813, 
815  ;  Mills  v.  Catlin,  22  Yt.  98,  106  ;  also  cited  from  Oliver's  Conveyancer,  in  Mills 
v.  Catlin,  22  Vt.  98,  106  ;  reprinted  in  3  Bush  (Ky.),  xii-xv;  Alexander  v.  Bradley, 
Id.  667.  The  Carlisle  Tables.  Greer  v.  Mayor,  <fec.  1  Abb.  Pr.  N.  S.  206,  s.  c.  4  Rob't. 
675;  Donaldson  v.  R.  R.  Co.  18  Iowa,  180,  291 ;  New  Jersey  Rule  of  Court,  Nix.  Dig. 
1106,  1111.  Also  in  3  Bush  (Ky.),  xi.  The  original  is  in  Milne  on  Annuities.  The 
Northampton  Tables.  See  cases  on  p.  602  of  this  vol.  note,  and  N.  Y.  Rule  of  Court  of 
1878,  No.  76;  Geo.  R.  R.  Co.  v.  Oaks,  52  Geo.  410.  The  original  is  in  2  Price  on 
Reversionary  Payments.  The  extract  from  the  Northampton  Tables,  printed  in  the 
N.  Y.  Supreme  Court  rules  (and  copied  in  Gary's  Probate  Law,  xl),  is  erroneous  in 
stating  the  valuation  opposite  the  years  6,  and  73  to  80  inclusive.  The  first  error 
is  in  substituting  the  terminal  6  for  0.  The  errors  in  the  later  period,  consist  in  sub- 
stituting the  value  appropriate  for  7  per  cent,  in  place  of  that  for  6  per  cent. 
McKane's  P.  L.  Tables.  JJendry's  Ann.  T.  Jackson  v.  Edwards,  7  Paige,  386,  408. 

For  a  notice  of  the  origin  of  such  tables,  see  William's  Case,  8  Bland.  Ch.  186, 
221,  233,  238.  "Where  the  court  do  not  take  judicial  notice  of  the  work  offered  as 
containing  the  table,  it  should  be  admitted  on  the  testimony  of  a  witness  that  he  has 
experience  in  the  business  of  life  insurance,  and  knows  the  volume  produced  to  be 
the  work  containing  the  original  tables,  or  a  standard  work  recognized  in  a  reputable 
life  insurance  office  as  containing  a  true  copy  of  the  tables. 

8  Alexander  v.  Bradley,  3  Bush  (Ky.),  667;  and  see  McLaughlin  v.  McLaughlin, 
20  N.  J.  Eq.  (5  C.  E.  Green),  190;  Abercrombie  v.  Riddle,  3  Md.  Ch.  320,  825 ;  and 
is  not  necessarily  incompetent  even  under  a  rule  of  court  which  makes  a  given  table 
the  guide.  The  rule  is  used  merely  as  a  means  of  approximation,  and  the  circum- 
stances and  condition  of  the  life  in  each  case  are  relevant.  Haulenbeck  v.  Cronk- 
right,  23  N.  J.  Eq.  407,  affi'd  in  25  N.  J.  Eq.  159. 

6  Alexander  v.  Bradley,  8  Bush  (Ky.),  667;  Brown  v.  Bronson,  35  Mich.  415, 
421.  Contra,  Shippen's  Appeal,  80  Penn.  St.  391,  s.  c.  2  Weekly  N.  468.  Extrinsic 
evidence  is  also  proper  as  to  the  contingencies  upon  which  an  inchoate  right  may 
ripen  (see  Benedict  v.  Seymour,  11  How.  Pr.  176),  except  that  so  far  as  it  depends 
on  survivorship  among  two  or  more  joint;  lives  the  rules  above  stated  apply.  See 
Jackson  v.  Edwards,  7  Paige,  386,  408,  affi'd  in  22  Wend.  498.  Possibility  and 
likelihood  of  issue,  when  relevant,  are  subjects  for  expert  testimony. 

1  Alexander  v.  Bradley,  3  Bush  (Ky.),  667. 


CHAPTER   XLIX. 

ACTIONS  BETWEEN  VENDOR  AND  PURCHASER. 

1.  The  contract.  8.  Actions  to  recover  back  purchase- 

2.  Oral  evidence  to  explain.  money. 

3.  Implied  covenants:  time.  9.  Fraud  or  misrepresentation. 

4.  Title.  10.  Specific  performance :  the  contract 
6.  Plaintiff  'a  performance :  breach,  11.  — oral  contract  partly  performed. 

6.  Value.  12.  —  plaintiff's  title  and  performance. 

7.  Contract  merged  by  deed. 

1.  The  contract^ — The  general  rules  as  to  the  proof  of  execu- 
tion and  oral  evidence  to  vary,  have  been  already  stated.1  A 
variance  in  stating  the  contract  in  a  respect  which  does  not  vary 
1he  resulting  liability,  is  not  material.2 

Jf  the  contract  is  denied,  plaintiffs  evidence  must  satisfy  the 
statute  of  frauds,  or  show  that  the  case  is  not  within  the  statute.8 
If  defendant  answers,  and  does  not  deny  the  contract,  nor  indi- 
cate that  he  relies  on  the  statute,  the  statute  does  not  avail  to  ex- 
clude oral  evidence  of  the  contract  thus  admitted.4  An  oral 
agreement  may  be  proved,  notwithstanding  the  statute  of  frauds, 
where  plaintiff  has  parted  with  value  on  the  faith  of  it,  placing 
himselt  in  a  situation  in  which  he  would  be  defrauded  by  refusal 
to  enforce  the  contract.5 


1  Order  of  proof ,  p.  504 ;  execution  proved  by  certificate  of  acknowledgment  or 
proof,  p.  693,  n. ;  proof  by  subscribing  witness,  p.  605 ;  proof  of  handwriting,  pp.  392-8 ; 
seal,  pp.  392  and  506 ;  execution  by  corporation  and  corporate  seal,  pp.  82-5 ;  by 
religious  corporation  (Bowen  v.  Irish  Presb.  Cong.  6  Bosw.  245;  Moore  v.  St. 
Thomas'  Ch.  4  Abb.  New  Cas.  61,  and  cas.);  authority  of  agent,  p.  506  of  this  voL 
(Savery  v.  Sypher,  6  Wall.  157);  dale,  pp.  409  and  508  of  this  vol. ;  contract  by  let- 
ter, p.  289  (Nfsham  v.  Selby,  L.  R.  13  Eq.  Cas.  191,  s.  c.  1  Moak's  Eng.  640;  Cross- 
ley  v.  Maycock,  L.  R.  18  Eq.  Cas.  180,  s.  c.  9  Moak's  Eng.  R.  727);  contract  by  tel- 
egram, p.  290  (Godwin  v.  Francis,  L.  11.  6  C.  P.  295  ;  89  L.  J.  C.  P.  121);  contract 
by  auction,  p.  827  (Klfe  v.  Gaclsden,  2  Rich.  (S.  C.)  873;  Torrance  v.  Bolton,  L.  R. 
8  Ch.  App.  118,  s.  c.  4  Moak's  Eng.  800 ;  Vandever  v.  baker,  18  Penn.  St.  I'll,  127  ; 
Phillips  v.  Ili^fjins,  7  Lans.  314,  affi'd  in  65  N.  Y.  663);  execution  in  duplicate  or 
counterpart,  p.  523;  subsequent  modification,  p.  610  (Benedict  v.  Lynch,  1  Johns.  Ch. 
870;  Bradford  v.  Union  Bank  of  Tennessee,  13  How.  U.  S.  57). 

4  Lobdell  v.  Lobdell,  36  N.  Y.  327;  4  Abb.  Pr.  N.  S.  56;  33  How.  Pr.  347,  s.  c. 
82  How.  Pr.  1 ;  Crary  V.  Smith,  2  N.  Y.  60.  As  to  variance,  see,  also,  p.  522  of  thia 
vol. 

8  P.  622  of  this  voL;  Reynolds  v.  Dunkirk  &  State  Line  R.  R.  Co.  17  Barb.  613  ; 
Coquillard  v.  Suydam,  8  Blnckf.  (Ind.)  24,  30.  Even  if  the  answer  seta  up  a  differ- 
ent contract.  Morrill  v.  Cooper,  65  Barb.  612,  616. 

*  Whiting  V.  Gould,  2  Wis.  652,  694. 

8  Dodgo  v.  W oilman,  1  Abb.  Ct.  App.  Dec.  612;  Sandford  v.  Norris,  4  Abb.  Ct 
App.  Dec.  144.  Levy  v.  Brush,  45  N.  Y.  689,  is  distinguished  in  Traphagen  v.  Hurt. 
67  N.  Y.  80,  as  a  cnso  where  plaintiff  had  taken  nothing  and  parted  with  nothing. 
And  see  Baker  v.  Wainwright,  36  Md.  336,  B.  c.  11  Am.  R.  495. 

[725] 


726  ACTIONS  BETWEEN  VENDOR  AND  PURCHASER. 

Where  the  parties  make  their  contract  in  writing,  delivery  of 
the  instrument  is  material.1 

2.  Oral  evidence  to  explain.'] — If  the  instrument,  expressly  or 
by  description,  shows  who  the  parties  are  (an  agent  being  consid- 
ered as  equivalent  to  a  party,  where  the  agreement  purports  to  be 
made  by  him),  extrinsic  evidence  is  admissible  to  explain  the  situa- 
tion and  relations  of  these  parties,  their  business,  and  the  circum- 
stances surrounding  the  transaction.3  In  application  of  what  has 
been  already  said,8  oral  evidence  is  competent  (it  may,  however,  be 
wholly  insufficient  by  reason  of  the  statute  of  frauds 4)  to  explain 
an  ambiguity  in  reference  to  the  premises  described,5  the  cove- 
nants and  stipulations,6  the  proportionate  interest  of  purchasers,' 
and  the  like.8 


1  Deitz  v.  Farish,  44  Super.  Ct.  (J.  &  S.)  190 ;  see,  also,  p.  SOY  of  this  vol.    Where 
they  make  an  oral  contract,  a  note  or  memorandum,  relied  on  merely  as  evidence  uuder 
the  statute  of  frauds,  may  be  sufficient  without  delivery  to  the  other  pnrty.     Parrill 
v.  McKipley,  9  Gratt.  1,7;  Bowles  v.  Woodson,  6  Id.  78.    Thus  n  letter  written  by 
one  of  the  parties  to  a  third  person,  may  be  a  sufficient  memorandum.     Pomeroy  Sp. 
Perf.  122,  §  84;  Rose.  N.  P.  318. 

2  Pomeroy  Sp.  Perf.  127,  §  88.     Even  for  the  purpose  of  making  it  appear  which 
is  the  vendor  and  which  is  the  purchaser.     Id.     As  to  oral  evidence  to  show  the 
true  party,  see,  also,  Briggs  v.  Partridge,  64  N.  Y.  357,  364 ;  Beardsley  v.  Duntley, 
69  N.  Y.  577,  681 ;  Lynde  v.  Staats,  1  N.  Y.  Leg.  Obs.  89,  and  cas.  cit ;  and  see  p. 
609  of  this  vol. 

3  See  pp.  295,  508  and  524  of  this  vol. 

4  Whelan  v.  Sullivan,  102  Mass.  204 ;  2  Whart.  §  871 ;  Wright  v.  Weeks,  25  N.  Y.  153. 

5  Phillips  v.  Higgins,  7  Lans.  314,  affi'd  55  N.  Y.  663  ;  Brinkerhoff  v.  Olp,  36  Barb. 
27;  8.  P.  Pettit  v.  Shepard,  32  N.  Y.  97;  Mead  v.  Parker,  115  Mass.  413,  s.  c.  15  Am. 
Rep.  110;  Magee  v.  Lavell,  L.  R.  9  C.  P.  107,  s.  c.  8  Moak's  Eng.  423;  Beaumont  v. 
Field,  1  B.  &  Aid.  247;  Rose.  N.  P.  32,  35,  318.     And  so  as  to  fixtures.     Martin  v. 
Cope,  3  Abb.  Ct.  App.  Dec.  182. 

When  lands  are  bounded  in  such  phrases  as  "  by,"  or  "  upon,"  or  "  along,"  a  high- 
way or  stream  not  navigable,  unless  by  the  terms  of  the  grant  or  by  necessary  impli- 
cation the  highway  or  the  bed  of  the  stream  are  excluded,  the  intent  to  grant  a  title 
to  the  center  of  the  highway  or  stream  will  be  presumed.  This  depends  upon  the 
intent  of  the  parties,  to  be  gathered  from  the  description  of  the  premises  read  in 
connection  with  the  other  parts  of  the  deed,  and  by  reference  to  the  s  tuation  of  the 
lands  and  the  condition  and  relation  of  the  parties  to  those  and  other  lands  in  the 
yicinity.  An  intent  to  exclude  the  highway  or  bed  of  the  stream  will  not  be  pre- 
sumed, but  must  appear  from  the  terms  of  the  deed  as  interpreted  and  illustrated  by 
surrounding  circumstances.  Mott  v.  Mott,  68  N.  Y.  246,  253. 

6  Page  v.  McDonnell,  55  N.  Y.  299,  affi'g  46  How.  Pr.  62. 

7  Brothers  v.  Porter,  6  B.  Monr.  (Ky.)  106. 

8  Upon  principles  already  stated  (pp.  128,  698  of  this  vol.),  the  oral  evidence  can- 
not stand  in  the  place  of  a  writing  to  satisfy  the  statute  of  frauds,  but  the  writing  must 
be  such  that  after  receiving  the  extrinsic  evidence  the  court  can  see  with  sufficient 
certainty  that  the  writing  itself  means  and  expresses  the  contract  alleged.     For 
instance,  a  contract  to  sell  a  tract  of  land  not  identified  except  as  being  near  the  junc- 
tion of  two  roads,  is  not  alone  sufficient  to  call  for  specific  performance  as  to  any 
particular  tract.     Dobson  v.  Litton,  5  Coldw.  616.     But  a  contract  to  convey  a  lot  sit- 
uated on  a  street  named,  together  with  extrinsic  evidence  consistent  with  the  writing 
that  the  vendor  had  one,  and  only  one  lot  on  that  street,  is  enough.    Harley  v.  Brown, 
98  Mass.  545.     On  the  other  hand,  a  contract  only  designating  the  land  as  being  the 
same  conveyed  by  government  to  C.  and  D.  and  by  C.  and  D.  to  A.,  cannot  be  varied 
by  evidence  that  it  was  only  intended  to  apply  to  land  derived  through  C.  alone  or 
through  D.  alone.     Marshall  v.  Haney,  4  Md.  498,  506. 


ACTIONS  BETWEEN  VENDOR  AND  PURCHASER.  727 

3.  Implied  covenants :  time.'] — An  executory  contract  for  the 
sale  of  real  estate  implies  (unless  what  is  expressed  indicates  the 
contrary)  a  covenant  for  title,  which  continues  till  merged  by 
conveyance.1    Jf  the  language  of  the  contract  does  not  deter- 
mine whether  time  is  material,  extrinsic  evidence  of  surrounding 
circumstances  is  relevant.     A  subsequent  agreement,  extending 
time,  will  sustain  an  inference  that  it  was  material.2 

4.  Title.'] — If  plaintiffs  title  is  in  issue  in  an  action  on  his 
executory  contract  to  convey,  the  burden  of  proof  is  on  him  to 
show  good  title  affirmatively,3  or  that  the  purchaser  agreed  to 
accept  such  title  as  he  had.4    A  conveyance  to  him,  with  pos- 
session under  it,  is  not  enough  under  a  direct  issue  on  title. 

The  relation  between  vendor  and  purchaser  does  not  estop  the 
latter  from  disputing  the  former's  title,5  unless  he  gained  and  is  re- 
taining possession  under  the  agreement.6  On  the  question  of 
plaintiffs  title,  his  own  declarations  are  competent  in  his  favor, 
when  part  of  the  res  gestce  of  an  act  affecting  the  title,  already 
properly  in  evidence/  An  abstract  of  title  furnished  by  the  seller 
to  the  buyer  to  aid  in  his  search  is  competent  against  the  seller,  as 
showing  his  claim  of  title,  for  the  purpose  of  proving  defects  in 
such  title.8  The  opinions  of  witnesses  are  not  competent.9 

5.  Plaintiff" s  performance :  breach.] — An  allegation  of  per- 
formance of  a  condition,10  does  not  admit  evidence  of  a  waiver  or 
other  excuse  for  non-performance.11     But  an  allegation  of  tender, 
where  it  is  not  part  of  the  contract,  but  an  act  inpais,  does 
admit  evidence  of  a  waiver.12    Tender  to  and  refusal  by  joint- 
purchasers  is  proved  by  tender  to  and  refusal  by  one.     Omission 
to  deny  due  allegation  of  a  request  and  refusal,  dispenses  with 


I  Burwell  v.  Jackson,  9  N.  Y.  635;  and  see  Thomas  v.  Bartow,  48  Id.  193  ;  Leg- 
gett  v.  Mut.  L.  Ins.  Co.  of  N.  Y.  63  N.  Y.  394,  398.     So  of  a  contract  for  sale  of  a 
leasehold  interest,  unless  a  tax  lease.     Boyd  v.  Schlesinger,  59  N.  Y.  301,  307. 

-  Wiswall  v.  McGown,  2  Barb.  270,  affi'd  sub.  nom.  Price  v.  McGown,  10  N.  Y.  465. 

3  Wilson  v.  Holden,  16  Abb.  Pr.  133,  136. 

4Negley  v.  Lindsay.  67  Penn.  St.  217,  s.  c.  5  Am.  R.  427;  Wilson  v.  Holden 
(above).  As  to  evidence  of  incumbrance,  see  Anonymous,  2  Abb.  New  Cas.  66 ; 
Riggs  v.  Pursell,  66  N.  Y.  193  ;  Reeder  v.  Scheider,  1  Huq,  121.  As  to  offer  to  die- 
charge.  Rinaldo  v.'Housmann,  1  Abb.  New  Cas.  812. 

5  Blight  v.  Rochester,  7  Wheat.  535. 

6  See  page  707  of  this  vol.     Compare  Coray  v.  Matthewson,  7  Lans.  80. 

7  Devling  v.  Little,  26  Penn.  St.  502,  506.     The  rule  as  to  admissions  and  declara- 
tions of  predecessors  in  the  title  (stated  at  pp.  710,  711  of  this  vol.)  applies.     See 
Pearce  v.  Nix,  34  Ala.  183,  185;  Vint  v.  King,  2  Am.  Law  Reg.  712. 

8  Hartley  v.  James,  50  N.  Y.  38. 

»  Winter  v.  Stock,  29  Cal.  407,  412. 

10  As  to  the  cases  in  which  performance  or  tender  must  be  proved,  Bee  Hartley  v 
Games,  60  N.  Y.  38,  42;  Doyle  v.  Harris,  11  R.  I.  639;  Delavan  v.  Duncan,  49  N.  Y. 
485;  Burling  v.  King,  66  Barb.  633,  642,  B.  c.  2  Suprn.  Ct.  (T.  <fc  C.)  645;  McCottei 
v.  Lawrence,  4  Hun,  107,  s.  c.  6  Supm.  Ct.  (T.  <fc  C.)  392 ;  Hoag  v.  Parr,  13  Hun,  95, 
100. 

II  Baldwin  v.  Munn,  2  Wend.  399;  Oakley  v.  Morton,  11  N.  Y.  25. 

14  Holmes  v.  Holmes,  9  N.  Y.  625,  affi'g  12  Barb.  137;  Curmau  v.  Fultz,  21  N.  Y 
647.  Compare  pp.  337,  338  of  this  voL 


728  ACTIONS  BETWEEN  VENDOR  AND  PURCHASER. 

necessity  of  proving  demand.1    Evidence  of  the  second  demand, 
sometimes  required,  is  admissible  without  being  alleged.3 

In  general,  proof  of  absolute  refusal  before  the  expiration  of 
the  time  fixed  for  performance  is  not  enough,8  unless  the  party 
refusing  had  put  it  out  of  his  power  to  perform,4  or  the  refusal 
was  communicated  and  was  intended  to,  and  did,  influence  the 
conduct  of  the  other  party,  to  his  damage.5 

6.  Value.] — Upon  principles  already  stated,6  a  witness,  who 
is  shown,  to  the  satisfaction  of  the  court,  to  have  such  conver- 
sance with  the  values  of  real  property  in  the  place  as  to  enable 
him  to  form  a  reliable  opinion,  may  testify  to  the  value  of  the 
property,  and  to  the  effect  on  it  of  conditions' involved  in  the  lit- 
igation.'   If  the  premises  have  a  market  value,  a  witness,  conver- 
sant with  market  value,  may  give  his  opinion  without  having 
examined    the  premises.8     If  the  qualification  of  a  witness  is 
conversance  with  value  for  certain  purposes  only, — as,  for  in- 
stance, a  farmer  in  the  vicinity  who  is  deemed  qualified  to  express 
an  opinion  of  value  for  farming  purposes, — he  may  express  an 
opinion  as  to  value  for  such  purposes;  but  not  an  unqualified 
opinion  if  the  property  may  be  valuable  for  other  purposes.9    A 
witness,  having  properly  testified  to  his  opinion,  may  state  the 
reasons  of  it.     Evidence  of  the  price  brought  by  similar  lands  in 
the  same  vicinity  is  competent,10  unless  it  involves  such  differences 
as  to  require  evidence  of  the  cost  or  condition  of  improvements 
for  the  purpose  of  computing  the  greater  or  less  value  of  the 
premises  in  question.     The  evidence  of  value  should  relate  to  the 
time  in  question  with  reasonable  proximity.11 

7.  Contract  merged  by  deed.] — Acceptance  of  a  deed  under 
the  contract,  although  it  varies  from  it,  \sprimafacie  evidence 
of  extinguishment  of  the  vendor's  obligations  as  to  title,  extent 
of  possession,  quantity  and  emblements.12    In  these  respects,  it  is 


'  Fagen  v.  Davison,  2  Duer,  153,  169. 
1  Pearsoll  v.  Frazer,  14  Barb.  664. 

3  Daniels  v.  Newton,  114  Mass.  530,  s.  c.  19  Am.  R.  384. 

4  Sears  v.  Conover,  4  ^bb.  Ct.  App.  Dec.  179.     This  fact,  if  relied  on,  should  be 
pleaded.     Van  Rensselaer  v.  Miller,  Hill  &  D.  Supp.  237. 

6  This  seems  to  be  the  sound  principle  and  goes  far  toward  reconciling  the  cases, 
which,  failing  to  express  it,  are  often  in  apparently  hopeless  conflict.  See  pp.  338, 
and  384  of  this  vol. ;  Skinner  v.  Tinker,  34  Barb.  333 ;  Thomas  v.  Wickman,  1 
Daly,  58. 

'  See  pp.  306,  348,  698  of  this  vol. 

'  Tucker  v.  Mass.  Cent.  R.  R.  Co.  118  Mass.  547. 

8  Lawrence  v.  City  of  Boston,  119  Mass.  126. 

9  Brown  v.  Prov.  &  Springf.  R.  R.  Co.  8  Reporter,  376 ;  Hawkins  v.  City  of  Fall 
River,  119  Mass.  94. 

10  Mains  v.  Haight,  14  Barb.  76. 

11  Sanford-v.  SheparJ,  14  Kans.  228. 

13  Hunt  v.  Amidon,  4  Hill,  345 ;  Smith  v.  Price,  39  111.  28 ;  Lloyd  v.  Farrell,  48 
Penn.  St.  73,  78;  6  Abb.  N.  Y.  Di<?.  new  ed.  104,  &c.  It  seems  that  the  fact  that  a 
substituted  covenant  or  conveyance  was  accepted  in  consummation  of  the  covenant, 
may  be  proved  by  parol.  Thomas  v.  Bartow,  48  N.  Y.  193, 197. 


ACTIONS  BETWEEN   VENDOR  AND  PURCHASER.  729 

presumed  that  the  deed  contains  the  final  agreement  of  the 
parties,1  and  that  the  grantee  intended  to  give  up  the  benefit  of 
covenants  of  which  the  conveyance  is  not  a  performance  or  satis- 
faction ; 3  but  the  presumption  may  be  rebutted  by  proof  of  the 
express  agreement  of  the  parties.3 

8.  Actions  to  recover  back  purchase-money.] — To  recover  back 
purchase-money,  on  the  ground  of  failure  of  title,4  the  burden  is 
on  plaintiff 5  to  prove  the  failure  of  title,  or  fraud  alleged,6  as  well 
as  the  payments  made.7    In  an  action  to  recover  back  for  a  defi- 
ciency in  the  land,  evidence  as  to  what  was  said  and  done  prior  to 
the  execution  of  the  written  contract  and  the  deed  is  competent, 
not  to  contradict  what  is  expressed,  but  to  show  intent  and  mis- 
take.8   Deficiency,  if  great,  may  sustain  an  inference  of  fraud, 
but  is  not  conclusive.9 

9.  fraud  or  misrepresentation.'] — Under  a   denial  of    title, 
fraudulent  misrepresentation  involved  in  proof  of  a  breach,  is  com- 
petent.10   The  test  of  materiality  in  a  variance  in  dimensions  is, — 
had  the  falsity  been  known,  would  the  contract  have  been  entered 
into?u    False  representations  alleged  as  a   ground  of    relief, 
should  be  proved  as  in  an  action  for  deceit.12     W  illful  suppression 
of  material  evidence  has  peculiar  significance,  in  an  action  for 
specific  performance.1? 

10.  Specific  performance  :  the  conti{act.~\ — The  proof  must  be 
clear,  definite  and  conclusive,  and  must  show  a  contract,  leaving 


1  Murdock  v.  Gilchrist,  52  N.  Y.  242,  246. 

s  Morris  v.  Whitcher,  20  N.  Y.  41. 

8  Murdock  v.  Giichrist,  52  N.  Y.  242,  247.  The  purchaser  is  not  necessarily  pre- 
sumed to  know  whether  the  deed  accepted  embraced  all  the  land  contracted  for;  and 
fraud  in  inducing  the  acceptance  of  a  deed  conveying  only  a  part  may  be  proved. 
Beardsley  v.  Duntley,  69  N.  Y.  577,  581.  So  of  mistake,  where  the  grantor  was  in- 
trusted to  prepare  the  deed  and  untruly  described  the  premises.  Wilson  v.  Van  Pelt, 
2  Supm.  Ct.  (T.  &  C.)414,  and  cas.  cit.  That  both  parties  were  ignorautof  an  incum- 
brance  is  not  relevant,  if  both  had  equal  and  adequate  means  of  information.  Whitte- 
more  v.  Farrington,  12  Hun,  349. 

4  As  to  the  necessary  facts,  see  Page  v.  McDonnell,  55  N.  Y.  299,  affi'g  46  How. 
Pr.  52;  Thomas  v.  Barton,  48  N.  Y.  193;  Friedman  v.  Dewes,  33   Super.  Ct.  (1  J.  <fe 
S.)  450;  Wheeler  v.  Mather,  5(i  111.  241,  s.  c.  8  Am.  Rep.  683. 

5  Treat  v.  Orono,  26  Me.  (13  Shep.)  217. 

6  Fraud  cannot  be  proved  unless  alleged.     Noonan  v.  Lee,  2  Blackf.  499,  508,  and 
cas.  cit. 

1  O'Brien  v.  Cheney,  5  Cush.  (Mass.)  148. 

8  Wilson  v.  Randall,  67  N.  Y.  338,  affi'g  7  Hun,  ]  5 ;  and  see  King  v.  Knapp,  59 
N.  Y.  462.    The  acceptance  of  the  deed  may  be  explained  by  parol  evidence  of  an 
agreement  to  fix  the  amount  of  the  purchase-money  by  a  subsequent  survey.     Mur- 
dock v.  Gilchrist,  52  N.  Y.  242,  246. 

9  Kreiter  v.  Homberger,  82Penn.St.  59,  s.c.22  Am.  R.750,  2  Weekly  Notes,  685,687. 

10  Rose.  N.  P.  328. 

11  Stokes  v.  Johnson,  67  N.  Y.  673. 

12  Chapter  XXXIV;  Casey  v.  Allen,  1  A.  K.  Marsh,  465;  see,  also,  Chapter  L.  In- 
adequacy of  price  may  raise  an  inference  of  fraud,  or  an  inference  that  the  parties  al- 
lowed for  a  defect,  and  thus  disprove  an  allegation  of  fraud.     Waldron  v.  Zollikoffer, 
8  Iowa,  108. 

18  Jenkins  v.  Eldredge,  3  Story,  181 ;  Vint  v.  King,  2  Am.  Law  Reg.  712. 


730  ACTIONS  BETWEEN  VENDOR  AND  PURCHASER. 

no  jus  deliberandi,  or  locus  pcenitenticB.  It  cannot  be  made  out 
by  mere  hearsay,  or  evidence  of  declarations  made  to  strangers.1 
Inadequacy  of  consideration  is  not  now  regarded  as  conclusive  evi- 
dence of  fraud,  but  raises  a  question  of  fact.3  Whether  the  con- 
tract is  executory  or  executed,  the  plaintiif  may  introduce  parol 
evidence  to  show  a  mistake  or  fraud  whereby  the  written  contract 
fails  to  express  the  actual  agreement,  and  to  prove  the  actual 
modification  necessary  to  be  made  therein,  whether  such  varia- 
tion consists  in  limiting  the  scope  of  the  writing,  or  in  enlarging 
it  so  as  to  embrace  land  which  had  been  omitted  through  the  mis- 
take or  fraud,  and  he  may  then  obtain  a  specific  enforcement  of 
the  contract  thus  varied ;  and  such  relief  may  be  granted,  although 
the  contract  is  one  which  is  required  by  the  statute  to  be  in  writ- 
ing.3 Inadequacy  of  consideration  is  relevant,  on  the  question  of 
fraud ;  and  may  be  so  great  as  to  be,  alone,  satisfactory  evidence 
of  fraud.4  A  plaintiif,  who  fails  to  establish  the  contract  he  has 
alleged,  cannot  rely  on  that  alleged  in  the  answer,  without  adopt- 
ing it  as  constituting  his  case.5  An  optional  contract  may  be 
proved,  but  if  the  time  for  the  exercise  of  the  option  is  limited, 
its  exercise  within  that  time  must  be  shown,6  And  if  personal, 
it  must  be  exercised  by  the  person  entitled  thereto.7 

Plaintiff  may  prove  a  claim  for  damages,  if  he  fails  to  show 
a  right  to  specific  performance.8 

11.  — oral  contract  partly  performed.'} — It  is  proper  to  prove 
the  part  performance  first,  as  a  foundation  for  letting  in  the  oral 
contract.9  The  acts  relied  on  for  part  performance  must  be  such  as 
to  show  that  some  contract  existed,  that  they  would  not  have  been 
done  but  for  the  contract,  and  are  not  inconsistent  with  that  al- 
leged ;  and  then  additional  oral  evidence  of  its  terms  is  compe- 
tent, if  the  circumstances  shown  are  such  that  to  exclude  it  would 
be  a  fraud  upon  the  plaintiff.10  Payment  of  price  is  not,  alone, 
enough.11  w  Change  of  possession  is  usually  enough,12  except  in  case 


I  Parcell  v.  Miner,  4  Wall.  513,  61 7. 
s  Pomeroy  Sp  Perf.  274,  §  194. 

3  Pomeroy  Sp.  Perf.  34*7,  §  264 ;  and  see  Bearclsley  v.  Duntley,  69  N.  Y.  577, 
683 ;  Wilson  v.  Van  Pelt,  2  Supm.  Ct.  (T.  <fe.  C.)  414,  and  cas.  cit. ;  Glass  v.  Hulbert, 
102  Mass.  24. 

4  Pomeroy  Sp.  Perf.  270,  §  193. 

6  Boardman  v.  Davidson,  7  Abb.  Pr.  N.  S.  439. 

6  Codding  v.  Warmsly,  4  Supm.  Ct.  (T.  <fe  C.)  49,  s.  o.  1  Hun,  585,  affl'd  in  60  N. 
Y.  644. 

7  Mendenhall  v.  Klinck,  El  N.  Y.  246. 

8  Beck  v.  Allison,  66  N.  Y.  366,  373,  reVg  4  Daly,  421 ;  s.  p.  Margraf  v.  Muir,  57 
N.  Y.  155,  159,  and  cas.  cit.     As  to  when  may  action  be  retained,  to  givo  damages, 
see  Sternberger  v.  McGovern,  56  N.  Y.  12,  s.  c.  15  Abb.  Pr.  N.  S.  257,  rev'g  4  Daly, 
456.     On  prayer  for  performance  as  to  pact  and  deduction  of  price  as  to  residue,  per- 
formance as  to  whole  cannot  be  decreed.     Boyd  v.  Schlesinger,  59  N.  Y.  301. 

•  Pomeroy  Sp  Perf.  151,  §  107. 
10  Miller  v.  Ball,  64  N.  Y.  286. 

II  Pomeroy  Sp.  Perf.  p.  159-63,  §§  112-14.     Contra.  Morrill  v.  Cooper,  65  Barb. 
612,  and  cas.  cit. 

"Poneroy  Sp.  Perf.  164-78,  §§  115-25;    and  see  Beardsley  v.  Duntley,   69  N. 
Y.  C77.     Contra,  Purcell  v.  Miner  (4  Wall.  513,  617),  requiring  also  possession. 


ACTIONS  BETWEEN  VENDOR  AND  PURCHASER.  731 

of  a  gift.     The  making  of  improvements  is  also  enough.1    In 
case  of  a  gift  both  together  are  enough.2 

To  establish  part  performance,  proof  to  a  reasonable  certainty 
is  sufficient.3 

12.  — plaintiff's  title,  and  performance.'] — Plaintiff  must  show 
clearly  that  the  purchaser  will  receive  such  a  title  as  he  contracted 
for.4  A  title  which  requires  oral  evidence  to  support  it  may  be 
enough,5  unless  the  purchaser  stipulated  for  record  title.6  If  the 
contract  was  by  a  trustee,  plaintiff  must  show  that  it  was  such  as 
he  might  properly  have  made,  and  as  the  court  would  have  ap- 
proved and  authorized,  had  its  authority  been  asked.7  Good  title 
at  the  time  of  trial  is  sufficient ;  but  defects  at  the  commence- 
ment of  the  action  are  relevant  on  the  question  of  interest8  and 
costs.  Either  party  may  show,  by  evidence  which  would  be  ap- 
plicable in  ejectment,  that  the  vendor  has  a  defective  title,  or 
none.  It  is  enough  for  the  purchaser,  when  sued  by  the  vendor, 
that  there  is  a  reasonable  doubt  concerning  the  title,  other  than  a 
pure  question  of  law,  which  the  court  ought  to  determine. 

Strict  fulfillment  in  point  of  time  on  the  part  of  the  plaintiff,  is 
not  in  general  essential.9  Unexcused  long  delay  is  a  bar.10  A  change 
of  circumstances,  detrimental  to  defendant,  will  not  be  presumed 
from  the  mere  fact  of  delay,  but  must  be  proved  if  relied  on.11 
The  statutory  presumption  of  payment13  of  a  sealed  instrument, 
arising  from  the  lapse  of  twenty  years,  is  not  sufficient  evidence 
of  payment.13 

1  Pomeroy  Sp.  Perf.  178-86,  §§  126-32. 

s  Lobclell  v.  Lobdell,  36  N.  Y.  327;  4  Abb.  Pr.  N.  S.  66;  33  How.  Pr.  347,  rev*g 
82  How.  Pr.  1 ;  Neale  v.  Neales,  9  Wall.  1. 

3  Neale  v.  Neales,  9  Wall.  1.     Contra,  it  must  be  "  indubitable."    GRIKR,  J.,  in 
Purcell  v.  Miner,  4  Wall.  513,  517.     But  see  p.  495  of  this  vol. 

4  Hinckley  v.  Smith,  51  N.  Y.  21,  25. 

6  Murray  v.  Harway,  56  N.  Y.  337,  344.     Compare  Thorn  v.  Sheil,  15  Abb.  Pr. 
N.  S.  81.    ' 

6  Coray  v.  Matthewson,  7  Lans.  80. 
'  Sherman  v.  Wright,  49  N.  Y.  227. 

8  Jenkins  v.  Fahey,  73  N.  Y.  355,  rev*g  11  Hun,  351. 

9  Davidson  v.  Jersey  Company,  71  N.  Y.  333,  334,  affi'g  6  Hun,  470. 

10  Finch  v.  Parker,  49  N.  Y.  1 ;  Merchants'  Bank  v.  Thomson,  55  N.  Y.  7,  12. 

11  Merchants'  Bankv.  Thomson  (above). 
11  2  N.  Y.  R.  S.  201,  §  48. 

13  Morey  v.  Farmers'  Loan  <fe  Trust  Co.  14  N.  Y.  302.     The  limitation  applicable 
'$  not  that  of  actions  on  sealed  contracts.    Petera  v.  Delaplaine,  49  N.  Y.  362,  372. 


OHAPTEE  L. 

ACTIONS   FOR   REFORMATION   OR  CANCELLATION   OF   INSTRUMENT. 

1.  Nature  of  the  action.  3.  Grounds  of  impeachment. 

2.  The  instrument  impeached. 

1.  Nature  of  the  action.'] — A  ground  of  action  substantially  of 
the  nature  alleged,  must  be  proved.1    Thus  an  action  to  cancel  for 
fraud  is  not  sustained  by  evidence  of  a  right  to  redeem.2    It  is 
enough  that  material  allegations  of  fraud  are  proved,  although 
other  allegations  of  fraud  remain  unproved  ; 3  or  although  there  is 
also  a  breach  of  warranty  or  other  wrong  on  which  plaintiff  might 
recover  damages.4 

2.  The  instrument  impeached^ — Plaintiff  may  prove  the  in- 
strument in  the  usual  way,5  and  then  proceed  to  impeach  it.6    Sev- 
eral contracts  having  together  the  effect  alleged,  may  be  proved 
under  an  allegation  of  one  contract.7 

3.  Grounds  of  impeachment^} — To  avoid  a  contract,  it  must  at 
least  be  shown  that  the  minds  of  the  parties  never  met.     To  re- 
form the  instrument,  it  must  be  shown  that  they  did  meet  on  other 
terms  than  those  embodied  in  the  writing,  and  that  the  intention 
of  both  was  by  mistake  misrepresented  in  the  writing.8 

Fraud  cannot  be  presumed  or  inferred  without  proof,  in  an 
equitable  action,  any  more  than  in  a  common  law  action.9    It  is 

1  Eyre  v.  Potter,  15  How.  U.  S.  42. 

s  Patterson  v.  Patterson,  1  Robt.  184,  s.  c.  1  Abb.  Pr.  N.  S.  262.  Nor  an  action 
to  cancel,  by  proof  of  a  right  to  specific  performance.  Fullerton  v.  McCurdy,  55 
N.  Y.  637. 

8  Moxon  v.  Payne,  L.  R.  8  Ch.  App.  881,  s.  c.  7  Moak's  Eng.  442. 

4  Smith  v.  Babcock,  2  Woodb.  &  M.  246,  and  cases  cited ;  Boyce  v.  Grundy,  3 
Pet.  210,  219. 

6  See  Chapters  I,  XXVI I  and  XLVIII. 

•«  Bunce  v.  Gallagher,  5  Blatchf.  481 ;  7  Am.  L.  Reg.  N.  S.  32. 

7  Pierce  v.  Wilson,  34  Ala.  596,  607.     And  under  a  denial  of  a  contract  alleged, 
defendant  may  prove  other  contemporaneous  and  qualifying  contracts.     Marsh  v. 
Dodge,  66  N.  Y.  533  ;  4  Hun,  278 ;  6  Supra.  Ct.  (T.  &  C.)  568. 

8  The  rules  of  proof  for  reformation  have  been  already  stated.    P.  512  of  this  vol. 
See,  also,  Jackson  v.  Andrews,  59  N.  Y.  244 ;  Mead  v.  Westchester  F.  Ins.  Co.  64  Id. 
455;  Bush  v.   Hicks,  60  Id.  298,  302,  s.  c.  2  Supm.  Ct.  (T.  &C.)85;6;  Hoag  v. 
Owen,  57  Id.  644,  affi'g  60  Barb.  34  ;  Boardman  v.  Davidson,  7  Abb.  Pr.  N.  S.  439; 
Gillespie  v.  Moon,  2  Johns.  Ch.  685,  597;    Bryce  v.  Lorillard  F.  Ins.  Co.  55  N.  Y. 
240,  s.  c.  46  How.  Pr.  498,  affi'g  35  Super.  Ct.  (3  J.  &  S.)  394.     As  to  cogency  of  proof, 
eee,  also,  Fishell  v.  Bell,  Clarke,  37  ;  Phoenix  F.  Ins.  Co.  v.  Gurnee,  1  Paige,  278 ;  Bryce 
v.  Lorillard  F.  Ins.  Co.  85  Super.  Ct.  (3  J.  &  S.)  394 ;  Pomeroy  Sp.  Perf.  345,  §  261.    As 
to  oral  evidence  that  the  terms  of  a  trust  were  fixed  under  a  misapprehension,  or  failed 
to  express  the  settlor's  intent,  see  Muloch  v  Muloch,  9  Reporter,  350,  and  cases  cited.- 

9  Haaer  v.  Thomson,  1  Black,  80 ;  Warner  v.  Daniels,  1  Woodb.  &  M.  90,  s.  c. 
9  Law  Rep.  160,  and  cases  cited.     Compare  Gallatian  v.  Cunningham.  8  Cow.  361. 
Courts  of  equity  have  repeatedly  refused  to  sustain  actions  to  set  aside  deeds  for 

[732] 


ACTIONS  FOR  CANCELLATION  OF  INSTRUMENT.  733 

enough  to  prove  the  suppression  or  misrepresentation  of  a  mate- 
rial fact,  though  there  were  no  intent  to  defraud.1  If  the  parties 
to  a  written  agreement  stood  on  equal  footing,  dealing  at  arm's 
length,  oral  evidence  is  inadmissible  to  show  that  one  represented 
to  the  other  that  the  agreement  would  give  to  him  something 
which  by  its  terms  it  denied  him,  unless  the  latter  shows  that 
some  part  of  the  contract  was  omitted  by  fraud  or  mistake,  which 
he  supposed  to  have  been  included  at  the  time  of  its  execution.2 
Knowledge  possessed s  by  the  attorney  or  counsel  employed  by 
the  party,4  in  a  particular  transaction  for  his  client,  is  notice  to  his 
client,  if  the  client  take  and  profit  by  the  fniits  of  the  transac- 
tion.5 Evidence  of  diligence  in  discovering  the  fraud  is  not  re- 
quired.6 Evidence  of  cnligence  in  rescinding  after  discovery  is 
required.7 

To  rescind  an  executed  contract 8  of  an  insane  person  who  was 
apparently  of  sound  mind  when  the  contract  was  made,  if  the 
consideration  has  been  enjoyed  and  cannot  be  restored  (even 
though  compensation  might  be  awarded),  the  plaintiff  must  show 
fraud,  undue  advantage  or  imposition  on  the  part  of  defendant,9 


fraud,  unless  there  was  proof  beyond  reasonable  doubt.  Gould  v.  Gould,  3  Story  C. 
Ct.  616 ;  Phettiplace  v.  Sayles,  4  Mas.  312  ;  Garrow  v.  Davis,  10  N".  Y.  Leg.  Obs.  225, 
and  cases  cited  in  note  3  on  page  731 ;  but  see,  on  this  subject,  pp.  495  and  670  of 
this  vol. 

For  the  rules  as  to  the  mode  of  proving  fraud  and  good  faith  respectively,  see 
Chapters  XVI,  XXXIV  and  LI. 

1  Hammond  v.  Pennock,  61  N.  Y.  145, 152,  affi'g  5  Lans.  358  ;  Smith  v.  Richards, 
13  Pet.  26. 

2  Jarvis  v.  Palmer,  11  Paige,  650,  658.     Compare,  for  a  freer  rule,  where  one  had 
some  right  to  rely  on  the  other,  Beardsley  v.  Duntley,  69  N.  Y.  577. 

3  If  previous  knowledge  is  relied  on,  it  should  be  shown  to  be  within  a  time  rea- 
sonable for  presuming  recollection. 

4  Otherwise  of  knowledge  on  the  part  of  one  employed  by  the  agent  or  corre- 
spondent of  the  party.     Hoover  v.  Wise,  91    U.  S.  (1  Otto),  308,  rev'g  Hoover  v. 
Greenbaum,  61  N.  Y.  305;  62  Barb.  138. 

6  May  v.  Le  Claire,  11  Wall.  217. 

6  Baker  v.  Lever,  67  N.  Y.  304,  affi'g  5  Hun,  114. 

7  According  to  Lindsay  Petroleum  Co.  v.  Hurd,  L.  R.  5  P.  C.  221,  s.  c.  8  Moak*s 
Eng.  180,  if  defendant  alleges  laches  in  the  other  party,  he  must  show  when  the  lat- 
ter acquired  knowledge  of  the  truth,  and  that  he  knowingly  delayed  asserting  his 
right. 

8  So,  also,  according  to  the  best  considered  recent  authorities,  of  an  executory 
simple  contract.     Lancaster  Co.  Bank  v.  Moore,  78  Penn.  St.  407,  s.  c.  21  Am.  R.  24 
(approved  in  78  Penn.  St.  414).     Compare  Musselman  v.  Cravens,  47  Incl.  1.     The 
contrary  held  of  a  power  of  attorney  and  conveyance  thereunder.    Dexter  v.  Hall, 
15  Wall.  9,  affi'g  Hall  v.  Unger,  2  Abb.  U.  S.  502.     See,  also,  Van  Deusen  v.  Sweet, 
61  N.  Y.  378.     In  this  case,  however,  the  later  English  ca«es,  applying  the  modern 
equitable  rule,  are  not  reviewed.     See  cases  above  cited,  and  \Viliard  Eq.  J.  Chap, 
on  Fraud ;  Ordronaux  Jud.  Aspects  of  Insan.  pp.  300,  306,  809. 

Lunacy  is  a  shield,  not  a  sword.  Allen  v.  Berryhill,  27  low»,  634,  s.  o.  1  Am.  R. 
809.  Imbecility  is  not  of  itself  sufficient,  but  is  material  in  connection  with  fraud  or 
undue  influence  or  advantage.  Johnson  v.  Harmon,  94  U.  S.  (4  Otto),  871,  879. 

•  Young  v.  Stevens,  48  N.  H.  133,  s.  c.  2  Am.  R.  202;  Molton  v.  Camroux.  2 
Exch.  487,  s.  o.  4  Exch.  17,  18  Law  Jour.  Exch.  356;  Elliott  v.  Ince,  7  De  G.,  M. 
A  G.  475-87 ;  Behrens  v.  McKenzie,  23  Iowa,  833,  343 ;  Scanlan  v.  Cobb,  85  111.  296 ; 
see  1  Story  on  Contr.  74 ;  1  Chitty  on  Contr.  191 ;  Addison  on  Contr.  140;  and  see 
Allore  v.  Jewell,  94  U.  S.  (4  Otto),  506  ;  Johnson  v.  Harmon,  Id.  371. 


734  ACTIONS  FOR  CANCELLATION  OF  INSTRUMENT. 

or  those  under  whom  he  claims.  The  burden  is  on  plaintiff  to 
show  the  insanity.1  An  inquisition  had,  at  the  time  of  or  prior 
to  the  transaction,  is  prima  facie  evidence  for  this  purpose.  An 
inquisition,  had  on  due  notice  to  the  subject,3  and  finding  that 
lunacy  existed  at  a  certain  time  or  for  a  specified  period,8  is  pre- 
sumptive evidence  of  incapacity  to  contract  during  that  period,4 
and  competent  against  all  the  world,5  but  is  not  conclusive  evi- 
dence of  lunacy  prior  to  the  day  of  the  finding,  against  persons 
not  parties  to  the  proceedings,  although  they  had  actual  notice  of 
their  pendency.6  As  to  the  time  after  the  day  of  appointment  of 
guardian  or  committee,  it  is  conclusive.7  A  decree  made  by  a 
probate  court  or  on  appeal  from  that  court,  adjudicating  the  insan- 
ity of  a  testator,  is  not  competent  evidence,  even  between  the  same 
parties,  on  a  question  of  the  validity  of  an  act  inter  vivos* 

A  general  or  habitual  insanity9  shown  to  have  existed  within 
a  reasonable  time  before  the  act  it  is  sought  to  annul,  is  presumed 
to  have  continued.  Proof  of  insanity  (other  than  idiocy)  at  a 
given  time  does  not  raise  a  presumption,  and  is  not  alone  compe- 
tent evidence,  that  the  person  was  insane  at  a  prior  date.10  A 
party  who  would  take  advantage  of  a  lucid  interval,  must  prove 
the  interval.11  But  he  is  not  bound  to  prove  as  perfect  a  state  of 
mind  as  existed  before  the  insanity.12  It  is  enough  to  show  a  dis- 
posing mind.18  The  existence  of  a  lucid  interval  may  be  inferred 
from  the  beneficial  and  advantageous  character  of  the  contract.14 
A  witness,  whether  professional  or  not,  may  state  the  opinion 
formed  by  him,  upon  his  own  knowledge  of  facts,  as  to  such 


1  Even  in  cnse  of  a  deed  set  up  by  defendant.     Howe  v.  Howe,  99  Mass.  88,  98. 
1  "Without  such  notice  it  is  absolutely  void.     Hathaway  v.  Clark,  6  Pick.  490. 

3  Although  admitting  lucid  intervals  not  specified.     Goodell  v.  Harrington,   3 
Supm.  Ct.  (T.  &  C.)  345.     As  to  the  jurisdiction,  and  the  period,  see  the  statute. 

4  And  even  at  a  time  subsequent  thereto.     Hoyt  v.  Adee,  3  Lans.  173.     Contra, 
Titcomb  v.  Vantyle,  84  111.  371,  373. 

6  Hoyt  v.  Adee  (above);  Goodell  v.  Harrington  (above);  2  Whart.  Ev.  §  1254; 
Hart  v.  Deamer,  6  Wend.  497. 

6  Banker  v.  Banker,  63  N.  Y.  409  ;  affi'g  4  Hun,  259. 

7  See  Gibson  v.  Soper,  6  Gray,  279,  286. 

8  Gray  v.  Thomas,  20  Miss.  (12  Smed.  &  M.)  Ill  ;  Den  v.  Ayres,  13  N.  J.  L. 
(1  Green),  152,  155  ;  Bogardus  v.  Clarke,  4  Paige,  623,  affi'g  1  Edw.  Ch.  266.     Unless 
the  statutes  have  the  effect  to  make  it  so. 

9  People  v.  Francis,  38  Cal.  183  :  Carpenter  v.  Carpenter,  8  Bush  (Ky.),  283.     So, 
also,  of  monomania.     Thornton  v.  Appleton,  29  Me.  298.     Otherwise  of  iusanity  of  a 
temporary  character,  or  shown  to  result  from  a  transient  cause.     Stewart  v.  Redditt, 
3  Md.  67,  81.     A  general  request  for  an  instruction  that  insanity  (unqualified)  is  pre- 
sumed to  continue,  should  be  refused.     Stewart  v.  Redditt,  3  Md.  67,  81. 

10  Terry  v.  Buffington,  11  Geo.  342,  cited  in  Swell's  Cases,  718.     The  competency 
of  the  state  of  mind  after  the  transaction,  depends  on  remoteness,  and  is  somewhat  in 
the  discretion  of  the  judge.     White  v.  Graves,  107  Mass.  325,  s.  c.  9  Am.  R.  38. 
And  when  it  has  been  received  from  one  side  may  be  received  from  the  other  within 
reasonably  similar  limits.     Walker  v.  Clay,  21  Ala.  797,  806. 

11  Cartwright  v.  Cartwright,  1  Phillimore,  90,  100 ;  and  see  Swell's  Cases,  716,  and 
cases  cited. 

18  Dicktn  v.  Johnson,  7  Geo.  488,  and  cases  cited. 

13  Exp.  Holyland,  11  Ves.  10;  Atty.-Gen.  v.  Parnther,  3  Brown's  Ch.  441,  8.  a 
Ewell's  Cases,  691 ;  and  see  Lilly  v.  Waggoner,  27  IU.  395,  399. 

14  Addison  on  Contr.  140, 


ACTIONS  FOR  CANCELLATION  OF  INSTRUMENT.  735 

grantor's  state  of  mind ;  provided  the  opinion  relate  to  matters  of 
fact,  and  not  of  law,  and  he  state  the  facts  which  he  observed,  in 
connection  with  his  opinion.1 

To  rescind  for  intoxication,  plaintiff  must  show  that,  as  matter 
of  fact,  the  intoxication,  however  produced,  was  such  as  to  sus- 
pend or  destroy  the  power  of  intelligent  assent ; 8  and  that  the 
consideration  has  been  restored.8 

To  rescind  on  the  ground  of  infancy,  the  burden  is  on  plaintiff 
to  prove  his  age;4  and,  in  case  of  an  executed  transfer,  the  proper 
acts  of  disaffirmance  on  his  part.5  Confirmation  may  be  proved 
by  slighter  evidence  than  disaffirmance.8  Mere  acquiescence  is 
not  of  itself  sufficient  evidence  of  confirmation,  but  evidence 
showing  clearly  and  unequivocally  an  intent  to  affirm  is  enough. 

"Where  &  fiduciary  relation"*  is  shown,  the  burden  is  on  the 
trustee  or  other  person  owing  the  duty,  to  repel  the  presumption 
of  fraud.8  A  witness  cannot  be  allowed  to  testify  directly  to  the 
question,  whether  defendant  had  undue  influence.9 


1  Thus,  be  may  testify  that  "he  thought"  the  grantor  was  growing  childish,  or. 
as  "  lie  took  it,"  was  a  little  light-headed.  De  Witt  v.  Early,  17  N.  Y.  340  ;  limiting 
a  previous  decision  in  9  Id.  371;  Pelamourges  v.  Clark,  9  Iowa,  14.  And  see,  to 
same  effect,  Stuckey  v.  Bellah,  41  Ala.  700,  707;  Walker  v.  Walker,  14  Geo.  242; 
Doe  v.  Reagan,  5  Blackf.  217;  Stewart  v.  Speddon,  5  Md.  433,446;  Dickenson  v. 
Barber,  9  Mass.  225;  McDougald  v.  McLean,  1  Winst.  120;  .Aiman  v.  Stout,  42 
Penn.  St.  114 ;  Morse  v.  Crawford,  17  Vt.  499.  The  rule  as  to  the  testimony  of  ex- 
perts is  stated  at  p.  1 16  of  this  vol  Upon  principles  already  stated  (p.  115)  declara- 
tions of  the  grantor  are  competent  to  show  his  state  of  mind  (Howe  v.  Howe,  99 
Mass.  88 ;  Howell  v.  Howell,  47  Geo.  492),  except  declarations  made  after  the  act 
and  offered  to  impeach  it,  for  this  might  sanction  fraud.  Stewart  v.  Redditt,  3  Md.  67. 
As  to  allowing  personal  inspection  by  the  court  or  jury,  see  Beaubien  v.  Cicotte,  12 
Mich.  459. 

9  Johnson  v.  Harmon,  94  U.  S.  (4  Otto),  371, 380 ;  1  MacA.  139  ;  and  see  Johns  v. 
Fritchey,  39  Md.  258  ;  Murray  v.  Carlin,  67  111.  286.  As  to  the  mode  of  proving  in- 
toxication, see  Chapter  LVI. 

3  Joest  v.  Williams,  42  Ind.  566. 

4  Compare  Roof  v.  Stafford,  7  Cow.  179,  183  ;  Gray  v.  Lessington,  2  Bosw.  257; 
Irvine  v.  Irvine,  5  Minn.  61.     For  mode  of  proof  of  age,  see  Chapter  V. 

6  Voorhies  v.  Voorhies,  24  Barb.  150.    Compare  Miles  v.  Lingerman,  24  Ind.  386. 

6  Irvine  v.  Irvine,  9  Wall.  617,  affi'g  5  Minn.  61.     See  Infancy,  as  a  defense. 

7  Such  as  attorney  and  client  (Bowen  v.  Bulkley,  14  N.  J.  Eq.  451,  458 ;  Mason 
v.  Ring,  3  Abb.  Ct.  App.  Dec.  210;  Widgery  v.  Tepper,  38  L.  T.  R.  N.  S.  436); 
principal  and  agent  (Brooks  v.  Martin,  2  Wall.  70,  85  ;  Eldridge  v.  Jenkins,  3  Story, 
181);  trustee  and  cestui  que  trust  (Da  vouev.  Fanning,  2  Johns.  Ch.  252,  2CO  ;  Michoudv. 
Girod,  4  How.  U.  S.  544,  663  ;  Gilman,  Ac.  R.  R.  Co.  v.  Kelly,  77  111.  42f>);  corpora- 
tion and  officer  (Cumberland  Coal  Co.  v.  Sherman,  80  Barb.  653 ;  The  Same  v.  Par- 
rish,  42  Md.  598) ;  and  the  same  rule  is  applied  to  some  extent  in  the  case  of  a  con- 
veyance by  a  child  just  of  age  to  a  parent  (compare  Turner  v.  Collins,  L.  R.  7  Chan. 
App.  329,  s.  c.  2  Moats  Eng.  290,  with  Taylor  v.  Taylor,  8  How.  U.  S.  183;  Jenkins 
v.  1'ye,  12  Pet.  241);  or  a  conveyance  by  an  aged  parent  to  one  of  several  children 
(Lansing  v.  Russell,  3  Barb.  Ch.  325  ;  Siemon  v.  Wilson,  3  Edw.  Ch.  86);  and  to  those 
•who  deal  with  expectant  heirs  and  reversiouers  (Earl  of  Aylesford  v.  Morris,  L.  R.  8 
Ch.  App.  484,  B.  c.  6  Moak's  Eng.  443;  compare  Parmalce  v.  Cameron,  41  N.  Y.  392). 

8  See  Lewin  on  Trusts,  615,  858.    Declarations  of  the  grantee  that  he  took  the 
grant  for  the  grantor's  benefit,  are  admissible,  not  as  proving  a  trust  by  parol,  but  as 
proving  the  pretended  and  the  real  intent.    Platt  v.  Platt,  68  N.  Y.  646,  affi'g  2  Supm. 
Ct.  (T.  &  C.)  25. 

9  Denn  v.  Fuller,  40  Penn.  St.  474,  478.     For  the  rule  as  to  proof  of  undue  influ- 
ence, and  of  weakness  of  mind,  see  pp.  119-22  of  this  voL 


CHAPTEE   LI. 

ACTIONS   BY   JUDGMENT  CREDITORS. 

1.  Judgment.  7.  Voluntary  settlement. 

2.  Execution.  8.  Intention  of  the  debtor. 
8.  Indebtedness  to  plaintiff.  9.  —  of  his  grantee. 

4.  Fraud.  10.  Admissions  and  declarations. 

6.  The  consideration.  11.  Defense. 

6.  Indebtedness  to  other  creditors.  12.  —  evidence  of  consideration. 

1.  Judgment.] — The  mode  of  proving  fhe  judgment  has  been 
already  stated.1    Docketing  need  not  be  shown,2  unless  execution 
or  a  lien  is  to  be  proved,  or  the  judgment  was  in  a  justice's  or  dis- 
trict court. 

2.  Execution.] — The  execution,  with  the  sheriff's  return  and 
the  date  of  filing  endorsed  thereon,  is  the  primary  evidence  of  its 
issue  and  return,3  and,  together  with  testimony  of  a  witness  that 
he  had  seen  it  on  file  in  the  clerk's  office,  is  sufficient.4    The  resi- 
dence of  the  debtor  in  the  county  where  execution  was  issued 
may  be  inferred  from  circumstances.5    Return  before  the  expira- 
tion of  sixty  days,  though  made  on  plaintiff's  request,  is  prima 

facie  sufficient.6 

3.  Indebtedness  to  plaintiff^ — The  plaintiff's  judgment,  un- 
less recovered  by  confession,7  is,  both  as  against  the  judgment 
debtor  and  as  against  his  grantees  (even  grantees  by  conveyances 
prior  to  the  judgment),  conclusive  evidence  of  the  existence  and 
the  amount  of  the  indebtedness  established  thereby,8  unless  fraud 


1  Chapter  XXIX.  Judgment  on  attachment  without  personal  service  (Thomas  v. 
Merchants'  Bank,  9  Paige,  216;  compare  Clarke,  234,  286),  or  an  interlocutory  de- 
cree not  finally  determining  the  question  of  liability  (Public  Works  v.  Columbia  Coll. 
17  Wall.  621,  530),  is  not  enough. 

8  Youngs  v.  Morrison,  10  Paige,  326. 

3  Jones  v.  Green,  1  Wall.  330 ;  Stahl  v.  Stahl,  2  Lans.  60 ;  McElwain  v.  Willis,  9 
Wend.  648,  affi'g  3  Paige,  505.     Lost  execution  may  be  proved  by  an  alias,  endorsed 
and  filed  pursuant  to  leave  of  court,  Bradford  v.  Read,  2  Sandf.  Ch.  163. 

4  Meyer  v.  Mohr,  1  Robt.  333,  s.  c.  19  Abb.  Pr.  299. 

5  Such  as  the  facts  that  the  other  parties  resided  there,  and  that  the  contract  was 
made,  for  a  long  time  performed,  and  finally  sued  on,  in  that  county.    Fox  v.  Moyer, 
54N.Y.  125. 

6  Forbes  v.  Waller,  25  N.  Y.  430,  s.  c.  as  Forbes  v.  Walter,  25  How.  Pr.  166.  afS'g 
Forbes  v.  Logan,  4  Bosw.  476  ;  Renaud  v.  O'Brien,  35  N.  Y.  99,  rev'g  25  How.  Pr.  67. 
But,  where  return  is  necessary,  it  must  have  been  made  before  the  commencement  of 
the  present  action.     McCullough  v.  Colby,  5  Bosw.  477;  compare  4  Id.  603. 

1  Botts  v.  Cozine,  Hoff.  Ch.  79.  But  see  Magniac  v.  Thompson,  1  Baldw.  344, 
affi'd  in  7  Pet.  348. 

8  Candee  v.  Lord,  2  N.  Y.  269  ;  Burgess  v.  Simonaon,  45  N.  Y.  225  ;  Ludington's 
Petition,  6  Abb.  New  Cas.  307,  and  caaes  cited. 

[736] 


ACTIONS  BY  JUDGMENT  CREDITORS.  737 

or  collusion  appears.  It  is  not  conclusive,  except  as  to  matters 
which  appear  to  hare  been  litigated  and  intelligently  determined, 
or  established  by  a  default,  in  a  court  of  competent  jurisdiction ; 
and  even  then  may  be  impeached  for  fraud  or  collusion.1 

If  the  indebtedness  is  not  established  by  judgment,  its  nature 
and  existence  must  be  shown  by  other  evidence.2 

4.  Fraud^\ — The  burden  is  on  the  plaintiff  to  show  fraud,8 
clearly.4  For  this  purpose  circumstantial  evidence  is  freely  re- 
ceived,5 and  is  sufficient  to  sustain  a  finding.6  Evidence  which  is 
not  altogether  irrelevant,  but  can  throw  light  upon  the  transac- 
tion, is  competent,  unless,  taken  with  all  otner  evidence  offered, 
it  could  only  raise  a  suspicion  insufficient  to  sustain  a  verdict. 

Character  is  not  in  issue.7 

A  secret  trust  for  the  debtor  may  be  proved  by  any  kind  of 
evidence  by  which  fraud  may  be  proved,  notwithstanding  the 
statute  of  frauds,  which  usually  requires  written  evidence  to 
establish  a  trust.8 

The  retention  of  the  possession  of  personal  property  after  con- 
veyance is  prima  facie  evidence  of  intent  to  defraud  existing 
creditors  of  the  transferor;9  and  this  presumption  is  sufficient 
against  both  parties  to  the  transfer ;  but  it  may  be  rebutted  by 
evidence  of  good  faith,  and  any  circumstances  tending  to  show 
good  faith  are  competent  to  go  to  the  jury.10  Retention  of  the 
possession  of  real  property  does  not  raise  a  presumption  of  fraud  in 
a  conveyance  for  value,  but  may  go  to  the  jury  with  other  evidence. 
If  the  terms  of  even  a  recorded  chattel  mortgage  allow  the  mort- 
gagor to  sell  and  substitute  other  goods,  instead  of  applying  pro- 


1  Same  cases.     The  competency  of  a  judgment  against  the  debtor's  personal  rep- 
resentative is  stated  in  Chapter  V. 

2  Elwell  v.  Johnson,  3  Jinn,  558. 

3  Loesohigk  v.  Hatfield,  5  Robt.  26,  s.  o.  as  Loeschigk  V.  Addison,  4  Abb.  Pr.  N. 
S.  210,  affi'd  in  51  N.  Y.  660.     A  mere  right  of  priority,  without  evidence  of  fraud,  is 
not  enough.     Skinner  v.  Stuart,  15  Abb.  Pr.  391,  s.  c.  39  Barb.  206,  24  How.  Pr.  489, 
rev'g  13  Abb.  Pr.  442.     Compare  Shaw  v.  Dwight,  27  N.  Y.  244. 

4  Townsend  v.  Stearns,  32  N.  Y.  209.     The  weight  of  opinion  is,  that  it  need  not 
be  shown  beyond  reasonable  doubt,  but  the  presumption  of  innocence  should  be 
weighed  with  the  testimony.     See  p.  495  of  this  vol.  and  cases  cited  at  pp.  731.733. 

The  only  available  grounds  of  relief  are  those  substantially  stated  in  the  pleadings. 
Rome  Exchange  Bank  v.  Eames,  4  Abb.  Ct.  of  App.  Dec.  83,  s.  c.  1  Keyes,  688. 

8  "In  every  transaction  where  fraud  is  imputed,  it  must  be  conceded  to  be  of  es- 
sential importance  that  the  jury  should  be  put  in  possession  of  every  fact  and  circum- 
stance tending  to  elucidate  the  question."  GOLDTHWAITE,  J.,  Goodgame  v.  Cole,  12 
Ala.  80.  The  evidence  of  it  is  almost  always  circumstantial.  Nevertheless,  though 
circumstantial,  it  produces  conviction  in  the  mind  often  of  more  force  than  direct  tes- 
timony. GRIKR,  J.,  Kempner  v.  Churchill,  8  Wall.  362. 

6  Hildreth  v.  Sands,  2  Johns.  Ch.  35,  affi'd  in  14  Johns.  493 ;  Booth  v.  Bunce,  83 
N.Y.  139. 

1  See  Johnson  v.  Camley,  10  N.  Y.  570. 

8  Bump  Fraud.  Conv.  542. 

•  For  recent  authorities,  see  21  Alb.  L.  J.  10 ;  5  South.  L.  Rev.  N.  S.  617. 
10  Proof  of  good  faith  is  sufficient,  without  proof  of  excuse,  for  not  transferring 
possession.    Mitchell  v.  West,  55  N.  Y.  107. 

47 


738  ACTIONS  BY  JUDGMENT  CREDITORS. 

ceeds  in  payment  of  the  mortgage,  it  is  conclusively  presumed 
void,  and  good  faith  is  irrelevant.1  In  the  absence  of  such  pro- 
visions in  the  mortgage,  extrinsic  evidence  of  intent  is  com- 
petent.2 

5.  The  consideration.'} — The  recital  of  payment  of  a  considera- 
tion, though  inadequate  or  not  even  valuable,  is  not  conclusive 
on  defendant  ;3  and  plaintiff  should  be  prepared  with  evidence, 
if  he  desires  either  to  contradict  the  recital,  or  to  support  it 
against  defendant's  contradiction.     Inadequacy  may  be  shown  by 
value  proven  by  opinions  of  witnesses.4 

6.  Indebtedness  to  other  creditors.] — The  grantor's  indebted- 
ness to  other  creditors  may  be  proved  by  parol,  without  producing 
the  written  obligations.5    Judgments  against  him  are  competent 
in  evidence  for  this  purpose,  without  anything  to  connect  the 
grantee  with  them.? 

7.  Voluntary  settlement.] — A  voluntary  conveyance  is  not  pre- 
sumed fraudulent  from  the  mere  fact  that  the  grantor  was  in- 
debted.7   Prior  creditors  make  a  prirha  facie  case  by  showing 
that,  at  the  timp  of  the  transfer,  ne  was  indebted  to  such  an 
extent  that,  having  regard  to  his  property,  the  effect  might  be  to 
delay,  hinder  and  defraud  the  creditors.8    A  settlement  made 
when  insolvent  is  fraudulent.9    This  presumption  may  be  ex- 
plained and  rebutted ;  for  the  fraud  is  always  a  question  of  fact 
with  reference  to  the  intention  of  the  grantor.10 

Where  there  are  no  prior  creditors,  a  subsequent  creditor  (es- 
pecially if  impeaching  a  settlement  on  the  children)  must  show  that 
it  was  intended  to  defraud  those  who  might  become  creditors.11 
Evidence  that  it  was  made  just  before  entering  a  hazardous  enter- 


1  Robinson  v.  Elliott,  22  Wall.  613 ;  Peiser  v.  Peticolas,  8  Reporter,  408. 
1  Southard  v.  Pinckney,  5  Abb.  XewCas.  184  ;  Peiser  v.  Peticolas  (above). 

3  See  paragraph  12.     "  Too  commonly  a  fair  debt  is  used  as  a  little  spark  of  hon- 
esty to  animate  a  mass  of  collusion-and  falsehood."    COWEN,  J.,  Waterbury  v.  Sturtc- 
vent,  18  Wend.  853. 

4  Pages  636  and  637  of  this  vol.  and  notes ;  Dailey  v.  Grimes,  27  Md.  440,  448. 

5  Snodgrass  v.  Branch  Bank  of  Decatur,  25  Ala.  161,  173. 

6  Hinde  v.  Longworth,  11  Wheat.  199.    An  expert  cannot  be  asked  whether  the 
debtor's  books  showed  that  he  was  insolvent  (Persse  &  Brooks  Paper  Works  v.  Wil- 
lett,  1  Robt.  131,  8.  c.  19  Abb.  Pr.  416),  without  producing  the  books  or  a  statement 
drawn  from  them  by  the  witness.     Other  rules  as  to  proving  insolvency  have  been 
already  stated.    Page  616. 

7  Dygert  v.  Remerschneider,  32  N.  Y.  629,  affi'g  39  Barb.  417. 

8  Schouler's  Dotn.  Rel.  278.     Embarrassed  circumstances  at  the  time  cannot  be 
inferred  from  the  mere  fact  of  insolvency  at  a  later  period.     Sexton  v.  Wheaton,  8 
Wheat.  229.     As  to  conveyance  by  husband  to  wife,  in  fraud  of  his  creditors,  sco 
p.  172,  <fec.  of  this  vol. 

»  Cole  v.  Tyler,  65  N.  Y.  73. 

10  Lloyd  v.  Fulton,  91  U.  S.  (1  Otto),  479,485  ;  1  Bish.  Marr.  W.  §  743  ;  Dunlap  v. 
Hawkins,  59  N.  Y.  342,  affi'g  2  Supra.  Ct.  (T.  <fe  C.)  292. 

11  Sexton  v.  Wheaton  (above);  Smith  v.  Vodges,  92  U.  S.  (2  Otto),  183  ;  Zimmer- 
man  v.  Schoenfeldt,  3  Hun,  692,  s.  c.  6  Supm.  Ct.  (T.  <fe  C.)  142.     Contra,  Redfield  v. 
Buck,  35  Conn.  328. 


ACTIONS  BY  JUDGMENT  CREDITORS.  739 

prise,  imposes  upon  the  grantor  the  burden  of  proving  that  he 
was  solvent  and  in  a  position  to  make  it.1 

8.  Intention  of  the  deltorJ] — Where  the  facts  in  evidence  do  not 
raise  a  legal  presumption  of  fraud,  the  debtor  may  be  asked,  as  a 
witness,  whether  he  intended  to  defraud,2  and  he  may  state  the 
particular  reasons  which  induced  the  act,  and  that  he  communi- 
cated those  reasons  to  his  creditors  before  the  act.8    His  testi- 
mony, that  he  did  not  intend  to  defraud,  is  not  conclusive.4 

'  Subject  to  the  qualifications  below  stated,  in  reference  to  the 
admissibility  of  the  admissions  and  declarations  of  an  assignor, 
other  fraudulent  transfers  made  by  the  same  debtor,  at  about  the 
same  time,  may  be  proved,  for  the  purpose  of  showing  his  intent 
in  the  transfer  in  question,  though  there  be  no  evidence  that 
the  grantee  knew  of  them.5  Such  other  frauds  are  only  evidence 
for  the  jury,  and  do  not  raise  a  presumption  of  law.6 

9.  —  of  his  grantee.~\ — To  impeach  a  conveyance  for  valuable 
consideration,7  or  a  mortgage  for  value,8  or  an  assignment  by  way 
of  lawful  security,9  or  an  ante-nuptial  settlement,1'1  it  is  necessary 
to  show  fraudulent  intent  on  the  part  of  the  grantee,11  or  that  he 
took  with  notice  of  the  grantor's  intent.12     To  establish  notice  to 


1  Mackay  v.  Douglass,  L.  R.  14  Eq.  C.  106,  s.  c.  8  Moak's  Eng.  659. 

s  Seymour  v.  Wilson,  14  N.Y.  667,  s.  c.  15  How.  Pr.  355  ;  Pope  T.  Hart,  35  Barb. 
630,  s.  c.  23  How.  Pr.  215. 

8  Persse  &  Brooks  Paper  Works  v.  Willett,  1  Robt.  131,  s.  c.  19  Abb.  Pr.  416. 
The  belief  of  the  debtor  that  his  debt  waa  paid  at  the  time  of  his  making  conveyance 
is  admissible.  Stacy  v.  Deshaw,  7  Hun,  449. 

4  Newman  v.  Cordell,  43  Barb.  448 ;  Bruce  v.  Kelly,  39  Super.  Ct.  (7  J.  <fc  S.)  27  ; 
Kimball  v.  Thompson,  58  Mass.  (4  Cush.)  441. 

8  Foster  v.  Hall,  12  Pick.  b9.  99  ;  Cathcart  v.  Robinson,  5  Pet.  264  ;  Van  Kirk  v. 
Wilds,  1 1  Barb.  520 ;  Fuller  v.  Acker,  1  Hill,  473 ;  Taylor  v.  Robinson,  2  Allrn  (Mass.), 
662 ;  and  compare  Reed  v.  Stryker,  4  Abb.  Ct.  App.  Dec.  26.  See  Bump  Fraud.  Con. 
644.  According  to  some  authorities,  it  should  appear  that  all  were  a  part  of  the  same 
general  plan.  Angrave  v.  Stone,  45  Barb.  85,  affi'g  25  How.  Pr.  167;  Lynde  v.  Me- 
Gregor,  13  Allen,  172.  See  the  same  distinction  at  p.  618  of  this  vol.,  n.  10.  Under 
the  free  rules  of  evidence  now  applied,  it  is  consonant  with  general  principles  to 
allow  evidence  of  any  fraudulent  transaction  which  indicates  fraudulent  intent  on  the 
part  of  the  grantor  in  making  the  transfer  in  question;  for  proving  fraud  in  one  party 
is  one  step  toward  proving  it  in  both.  But  it  is  only  one  step;  and  where  it  is  nec- 
essary to  prove  fraud  in  the  grantee,  other  fraudulent  transfers  in  no  wise  connected 
do  not  avail  oa  evidence  against  him,  and  there  must  be  further  proof  not  only 
of  intent  on  his  part,  but  proof  competent  against  him  of  intent  on  the  part  of  hia 
grantor.  In  other  words,  plaintiff  need  not  prove  a  common  or  communicated  intent ; 
and  even  where  he  must  prove  concurring  intentions,  he  may  prove  each  by  independ. 
ent  evidence;  and  evidence  which  proves  the  intent  of  one  party,  is  not  inadmissible 
merely  because  it  is  no  evidence  of  the  intention  of  the  other.  A  similar  question  as 
to  the  resgestce  of  a  payment  remains  somewhat  unsettled.  P.  246  of  this  vol. 

'  Liver  more  v.  North  rup,  44  N.  Y.  107. 

7  Waterbury  v.  Sturtevant,  18  Wend.  353. 

8  Carpenter  r.  Muren,  42  Barb.  800. 

9  Griffin  v.  Cranston,  1  Bosw.  281. 

10  Mngniac  v.  Thompson,  7  Pet.  348,  affi'g  1  Baldw.  344.  But  not  other  conveyances 
in  consideration  of  love  and  affection  only,  even  if  impeached  by  subsequent  creditors 
only.  Savage  v.  Murphy,  34  N.  Y.  508.  Contra,  Holmes  v.  Clark,  48  Barb.  237. 

"  Jackson  v.  Mather,  7  Cow.  301. 

19  So  a  creditor  of  a  testator,  who  impeaches  the  validity  of  tho  mortgage  or  sale 


740  ACTIONS  BY  JUDGMENT  CREDITORS. 

a  grantee,  even  for  value,  it  is  enough  to  show  such  circumstances 
as  ought  reasonably  to  have  excited  his  suspicions  and  put  him  on 
inquiry  ;  but  proof  of  such  circumstances  is  not  conclusive ;  the 
grantee  may  show  that  lie  exercised  due  diligence,  and  failed  to 
discover  the  prior  right.1  Evidence  that  the  grantee  had  reason- 
able cause  to  believe  the  grantor  insolvent  is  competent,2  but  not 
conclusive.8  The  grantee,  like  the  grantor,  may  be  examined  as 
to  his  own  intent.4 

10.  Admissions  and  declarations."] — In  applying  the  general 
rules  elsewhere  stated, — which  exclude  admissions  and  declarations 
made  by  an  owner,  when  offered  to  affect  his  successor's  title  to 
real,5  but  not  to  personal  property  or  things  in  action,6 — it  should 
be  observed  that,  in  a  creditor's  suit,  both  grantor  and  grantee 
being  parties  (as  is  usually  the  case),  the  declarations  of  the  grantor 
are  usually  admissible  for  the  purpose  of  charging  him,7  whether 
they  relate  to  realty  or  personalty ;  for  what  a  party  has  said 
about  his  own  case  is  always  admissible  -against  him.  But  it  is 
not  enough  that  there  is  such  evidence  of  fraud  on  the  part  of  the 
grantor,  made  competent  against  him.  There  must  also  be  evi- 
dence of  it,  competent  against  the  grantee.8 

The  doctrine  of  the  Kew  York  courts  is,  that  acts,  admissions 
and  declarations  of  the  grantor,  after  he  has  parted  with  title,* 


by  an  executor  for  purposes  of  a  misapplication,  has  the  burden  of  proving  that  the 
mortgagee  of  the  purchaser  had  notice  of  the  true  state  of  the  facts.  Corser  v.  Cart- 
wright,  L.  R.  7  Ho.  of  L.  731,  s.  c.  14  Moaks'  Eng.  115.  Compare  p.  716  of  this  vol. 

1  Williamson  v.  Brown,  15  N.  Y.  354, 362;  Herlich  v.  Brennan,  11  Hun,  194;  and 
see  Reed  v.  Cannon,  50  N.  Y.  345. 

8  Lee  v.  Kilburn,  8  Gray,  694,  598.     See  p.  617  of  this  vol. 

8  Waterbury  v.  Sturtevant,  18  Wend.  353.  Whether  notice  to  an  agent  or  attor- 
ney is  competent  and  sufficient,  see  Weiss  v.  Brennan,  41  Super.  Ct.  (J.  &  S.)  177 ; 
Hoover  v.  Greenbaum,  62  Barb.  188,  affi'd  61  N.  Y.  305,  affi'd  sub  nom.  Hoover  v. 
Wise,  91  U.  S.  (1  Otto),  808 ;  May  v.  Le  Claire,  11  Wall.  217  ;  Foster  v.  Hall,  12  Pick. 
89,  98 ;  Lynde  v.  McGregor,  13  Allen,  172.  As  to  competency  of  attorney  as  wit- 
ness, see  N.  Y.  Code  Civ.  Pro.  $  835. 

4  Bedell  v.  Chase,  34  N.  Y.  386. 

6  Page  711  of  this  vol. ;  Jackson  v.  Myers,  11  Wend.  533 ;  Norton  v.  Pettibone,  7 
Conn.  319. 

6  Page  11. 

7  Gamble  v.  Johnson,  9  Mo.  697, 615 ;  Venable  v.  Bank  of  the  U.  S.  2  Pet.  107, 119. 

8  Even  in  case  of  an  assignment  for  benefit  of  creditors,  fraud  on  the  part  of  the 
grantor  must  be  established  by  evidence  competent  against  the  assignee.     Evidence 
of  the  assignee's  declarations  such  as  are  competent  against  him  alone,  or  even  against 
him  and  an  assignee  who  has  been  removed,  is  not  enough  to  sustain  the  action  against 
the  assignee.     Cuyler  v.  McCartney,  40  N.  Y.  221,  rev'g  33  Barb.  165.     And  even 
where  it  is  only  necessary  to  prove  fraud  in  the  grantor,  and  his  subsequent  admis- 
sions are  satisfactory  evidence  against  himself,  there  must  be  evidence  competent 
against  the  grantee ;  otherwise  a  grantor,  having  made  a  fair  conveyance,  could  annul 
it  by  subsequent  transactions  or  even  admissions. 

'  This  rule,  while  it  admits  declarations  made  after  the  executory  contract  to  sell, 
excludes  those  made  after  the  inception  of  the  transfer.  Vrooman  v.  King,  36  N.  Y. 
477,  483,  and  cases  cited.  Compare,  for  the  distinction  in  various  cases  of  incomplete 
execution  or  delivery,  Wyckoff  v.  Carr,  8  Mich.  44 ;  Bunker  v.  Green,  48  111.  243 ; 
McLanathan  v.  Patten,  39  Me.  142;  McClellan  v.  Cornwall,  2  Coldw.  (Tenn.)  298, 
305 ;  Goodgame  v.  Cole,  12  Ala.  77,  82. 


ACTIONS  BY  JUDGMENT  CREDITORS.  741 

are  not  competent  against  the  grantee,  unless  there  be  independent 
evidence  of  fraud  to  connect  the  two,  and  bring  them  within  the 
rule  as  to  confederates.  But  for  this  purpose  independent  evi- 
dence that  the  grantor,  after  selling,  continued  in  a  possession 
which  is  presumptively  fraudulent,  is  enough  to  let  in  declarations 
made  during  its  continuance.1  The  declarations  cannot  aid  the 
proof  of  combination.  If  there  be  not  independent  evidence  of 
combination,  the  assignor  should  be  offered  as  a  witness,  instead 
of  resorting  to  proof  of  his  declarations.2 

If  there  is  independent  evidence  connecting  the  grantor  and 
grantee  in  an  attempt  to  defraud,  the  acts,  admissions  and 
declarations  of  either  are  admissible  against  the  other,  within  the 
limits  already  stated  ;3  and  it  need  not  be  shown  that  the  latter 
had  any  knowledge  of  them.4 

But  the  acts*,  admissions  and  declarations  of  grantor  or  grantee, 
though  made  while  holding  title  and  possession,  are  not  evidence 
in  his  favor,  or  in  favor  of  those  claiming  under  him,  to  disprove 
fraud,  unless  part  of  the  res  yestce?  or  where  the  making  of  the 
declaration,  and  not  its  truth,  is  the  relevant  fact.6 

11.  Defense.] — Defendant  may  show  any  ground  of  equitable 
impeachment  of  the  judgment.7     But  mere  irregularity  in  it,  or 
in  the  execution,8  is  no  defense,  nor  is  the  fact  that  the  execution 
was  returned  in  less  than  sixty  days,  unless  shown  to  have 'been 
done  in  bad  faith.9   Neither  a  second  execution,  levied  after  com- 
mencement of  action,  nor  a  second  judgment,  is  necessarily  a  bar; 
it  depends  on  whether  the  circumstances  will  sustain  an  inference 
of  satisfaction.10 

The  grantee  may  prove  the  circumstances  and  the  advice  on 
which  he  took  the  transfer,  for  the  purpose  of  showing  good  faith.11 

12.  —  evidence  of  consideration  paid.] — The  recital,  in  a  con- 
veyance sought  to  be  impeached,  of  payment  of  a  valuable  con- 
sideration, is  presumptive  evidence  01  its  payment.12    Its  inade- 


1  Lee  v.  Huntoon,  Hoffm.  447,  453;  Adams  v.  Davidson,  ION.  Y.  309;  Newlinv. 
Lyon,49  Id.  661.  A  possession  resumed,  after  delivery  once  made  and  continued, 
is  not  enough.  Tilson  v.  Terwilliger,  56  N.  Y.  273. 

8  Cuyler  v.  McCartney,  40  N.  Y.  221,  226. 

8  Page  190  of  this  vol. ;  Cuyler  v.  McCartney,  40  N.  Y.  221 ;  Newlin  v.  Lyon,  49 
N.Y.  661. 

4  Nudd  v.  Burrows,  91  U.  S.  (1  Otto),  421,  438.  Declarations  made  before  the 
combination  are  not  made  competent.  Legg  v.  Olney,  1  Den.  202. 

4  Ward  v.  Sounders,  6  Ired.  (N.  C.)  L.  382,  387  ;  Badger  v.  Story,  16  N.  H.  168 ; 
Hale  v.  Stone,  14  Ala.  803,  806;  Tevis  v.  Hicks,  41  Cal.  123. 

•  IMace  v.  Gould,  123  Mass.  847,  and  cases  cited. 

T  Smith  v.  Crocheron,  2  Edw.  Ch.  501 ;  nnd  see  Mandeville  v.  Reynolds,  68  N.Y.  528, 
6  Hun,  338 ;  Teed  v.  Valentine,  65  N.  Y.  47 1.     Contra,  Mattingly  v.  Nye,  8  Wall.  370. 
8  2  Abb.  N.  Y.  Dig.  new  ed.  478, 482,483. 

•  2  Id.  487,  490. 

10  2  Abb.  N.  Y.  Dig.  new  ed.  477. 

11  Norton  v.  Mallory,  63  N.  Y.  434,  affi'g  1  Hun,  499,  B.  o.  8  Supm.  Ct  (T.  A  C.) 
640;  Goodgame  v.  Cole,  12  Aln.  77,  80;  Fisher  v.  True,  38  Me.  536. 

14  Thallhimer  v.  Brinckerhoff,  6  Cow.  90;  Jackson  v.  McChesney,  7  Id.  SCO;  Car* 


74:2  ACTIONS  BY  JUDGMENT  CREDITORS. 

quacy  is  material  only  on  the  question  of  fraudulent  intent.1  In 
case  of  a  mortgage,  the  bond2  or  note8  to  which  it  is  collateral, 
if  produced  and  proved,4  and  shown  to  be  connected  with  the 
mortgage,5  is  presumptive  evidence  of  a  just  debt.  After  plaint- 
iff has  given  evidence  of  fraud,  defendant  should  give  extrinsic 
evidence  of  consideration,  if  he  relies  on  that.  A  conveyance 
purporting  to  have  been  voluntary,  can  not  be  contradicted  by  ev- 
idence that  it  was  for  value.6  But  the  indebtedness  to  the  grantee 
may  be  shown  as  evidence  rebutting  extrinsic  evidence  of  fraud 
in  fact.7  If  plaintiff  has  disproved  the  pecuniary  consideration  re- 
cited, defendant  may  prove  the  actual  pecuniary  consideration  in 
support  of  the  instrument.8  Payment  since  commencement  of  the 
action  is  inadmissible.9  The  payment  may  be  proved  by  a  witness, 
without  accounting  for  receipts  shown  to  have  been  taken  ; 10  or 
by  the  previous  transactions  between  the  parties  to  the  instru- 
ment,11 and  the  state  of  their  accounts.12  The  existence  of  an  in- 
debtedness having  been  shown,  the  debtor  may  testify  directly 
that  he  was  indebted  to  the  grantee.13 


penter  v.  Freeland,  Hill  &  D.  Supp.  37 ;    Foster  v.  Hall,  12  Pick.  89,  92.      Contra, 
Kimball  v.  Fenner,  12  N.  H.  248. 

1  Jackson  v.  Peek,  4  Wend.  300 ;  Twyne's  Case,  1  Smith's  L.  Cas.  33,  47. 

a  Dunham  v.  Gates,  3  Barb.  Ch.  196. 

8  Dunham  v.  Whitehead,  3  Abb.  Pr.  207. 

4  As  to  mode  of  proof,  see  pp.  392-8  and  504-7  of  this  vol. 

6  Baskins  v.  Shannon,  3  N.  Y.  310. 

•  Potter  v.  Gracie,  58  Ala.  303,  s.  c.  29  Am.  R.  748;  Bump  Fraud.  Conv.  555,  658. 

7  Hinde  v.  Longworth,  11  Wheat.  199. 

8  McKinster  v.  Babcock,  26  N.  Y.  378,  reVg  37  Barb.  265. 

9  Angrave  v.  Stone,  45  Barb.  35,  affi'g  25  How.  Pr,  167. 

10  Johnson  v.  Cunningham,  1  Ala.  249,  257;  Planters'  Bank  v.  Borland,  5  Id.  531, 
543. 

11  Jaycox  v.  Caldwell,  51  N.  Y.  395,  affi'g  37  How.  Pr.  240.     So,  also,  in  rebuttal 
Treat  v.  Barber,  7  Conn.  274. 

18  De  Forest  v.  Bacon,  2  Conn.  633.     Compare  Isham  v.  Schafer,  60  Barb.  317. 
18  Jaycox  v.  Caldwell  (above). 


CHAPTER  LTI. 

ACTIONS  JFOR  DIVORCE. 

1.  Marriage.  9.  —  and  as  to  paramour. 

2.  Fraud.  10.  —  delay. 

8.  Impotence.  11.  —  character. 

4.  Adulti-ry.  12.  Cruelty. 

6.  —  circumstantial  evidence.  13.  Witnesses. 

6.  —  cogency  of  proof.  14.  Confessions  and  admissions. 

7.  —  opinions  of  witnesses.  15.  Condonation. 

8.  —  limits  of  the  issue  of  adultery 

in  respect  to  time  and  place. 

1.  Marriage.'] — -There  must  be  evidence  of  actual  marriage. 
Cohabitation  and  repute  is  relevant,  but  not  alone  enough.1 

2.  Fraud.~]^  The  fraud  proved  must  be  that  alleged.2    Ex- 
press representation  of  chastity  need  not  be  proved  to  substan- 
tiate an  allegation  that  the  woman  fraudulently  induced  plaintiff 
to  believe  her  chaste.8     Admissions,  especially  if  tacit,  are  not 
alone  sufficient  to  establish  fraud  as  a  ground  of  divorce.4 

3.  Impotence.']  — The  burden  of  proving  impotence  as  a  ground 
of  action  is  on  plaintiff,  and  increases  with  the  lapse  of  time  from 
the  date  of  marriage  to  the  bringing  of  the  action.5 

4.  Adultery.'] — Actual   marriage  and    cohabitation   with   a 
second  spouse,  is   conclusive   evidence  of   sexual   intercourse.6 
Residence  of  man  and  woman  in  the  same  house,7  holding  each 
other  out  as  man  and  wife,  is  not  necessarily  prima  facie  evi- 
dence of  it.8 

Birth  of  a  child,  or  pregnancy,  is  not  evidence  of  adultery 
without  clear  proof  of  the  husband's  non-access,9  by  witnesses  who 
have  means  of  knowledge.10 


1  2  Bish.  Marr.  <fe  Div.  §  266,  <fec. ;  p.  79,  <fcc.  of  this  vol.     The  mode  of  proving  the 
material  facts  es-sential  to  the  jurisdiction  has  already  been  stated.     See  chap.  V. 

2  Klein  v.  Wolfsohn,  1  Abb.  N.  C.  134. 
8  Donovan  v.  Donovan,  9  Allen,  140. 

4  Montgomery  v.  Montgomery,  3  Barb.  Ch.  132. 

*  M.  T.  C.,  L.'R.  2  P.  <fc  D.  414,  s.  c.  4.  Moak's  Eng.  650.  Continuance  must  be 
shown.  As  to  surgical  examination,  see  Devanbagh  v.  Devanbagh,  5  Paige.  554 ; 
6  Id.  176;  Newell- v.  Newell,  9  Id.  25.  Where  the  only  evidence  is  the  conflicting 
testimony  of  the  parties,  the  lapse  of  time  is  a  very  strong  circumstance  against  the 
case.  Cuno  v.  Cuno,  L.  R.  2  S.  <fc  D.  App.  300,  s.  o.  6  Moats  Eng.  73. 

'  Clapp  v.  Clapp,  97  Mass.  531. 

T  Pollock  v.  Pollock,  71  N.  Y.  137. 

8  Hart  v.  Hart,  2  Edw.  207.  But  see  Hoffm.  on  Ref.  115.  Aa  to  presumption  of 
death  from  absence,  see  p.  73  of  this  vol. 

8  Van  Aernam  v.  Van  Aernam,  1  Barb.  Ch.  875.  See  pp.  88  and  89  of  this  vol. 
10  See  Turney  v.  Turney.  4  Edw.  666,  and  p.  89  of  this  vol.  By  N.  Y.  Rule  82, 
legitimacy,  if  not  questioned  in  pleading,  cannot  be  questioned  on  the  trial. 

[743] 


744  ACTIONS  FOR  DIVORCE. 

A  husband's  consorting  with  prostitutes  is  competent  as  evi- 
dence of  his  adultery.1  A  woman's  visiting  a  house  of  prostitution 
with  a  man  other  than  her  husband  is  competent  evidence  of  her 
adultery.  Continuation  of  an  intercourse-  formerly  adulterous, 
without  anything  to  indicate  a  change,  will  sustain  an  inference 
of  continued  adultery.2  A  husband's  having  the  venereal  disease, 
long  after  marriage,  is  prima,  facie  evidence  of  his  adultery.8 
Defendant's  physician  is  not  competent  as  to  facts  derived  from 
him  in  professional  confidence.4  The  wife's  disease  is  not  evi- 
dence of  the  husband's  infidelity.5 

5.  —  circumstantial  evidence.'] — To  establish  adultery  by  cir- 
cumstantial evidence,  the  circumstances  are  to  be  taken  together 
and  when  combined  must  tend  to  establish  the  following  three 
facts  :  1.  The  lustful  disposition  of  the  party  charged,  towards 
the  alleged  paramour ;  2.  A  like  disposition  on  the  part  of  the 
latter ;  3.  The  opportunity  to  commit  the  act.6 

These  three  facts  must  be  reasonably  approximate  in  point  of 
time.7  The  proof  must  sustain  an  inference  of  actual  connexion 
but  it  is  not  essential  that  it  identify  time  and  place,8  unless  these 
have  been  made  part  of  the  issue  by  the  pleadings. 

Circumstances  susceptible  of  a  reasonable  interpretation  con- 
sistent with  innocence,  and  which  do  not  lead  to  guilt  by  a  fair 
inference  as  a  necessary  conclusion,  are  insufficient." 


1  But  whether  sufficient,  depends  on  evidence  of  disposition  and  opportunity.  See 
Ciocci  v.  Ciocci,  26  Eng.  Law  &  Eq.  R.  604 ;  Platfc  v.  Platt,  5  Daly,  295 ;  Van  Eppa 
V.  Van  Epps,  6  Barb.  320  ;  Hoffm.  on  Ref.  155. 

8  Smith  v.  Smith,  4  Paige,  432 ;  Van  Epps  v.  Van  Eppa,  6  Barb.  320. 

3  Johnson  v.  Johnson,  14  Wend.  637,  rev'g  4  Paige,  460.     Compare  Ferguson  v. 
Ferguson,  Seld.  Notes,  249  (No.  6,  p.  77),  modifying  effect  of  1  Barb.  Ch.  604  ;  3  Sandf, 
307. 

4  N.  T.  Code  Civ.  Pro.  §  834;  Hunn  v.  Hunn,  1  Supm.  Ct.  (T.  <fc.  C.)  499;  and  see 
p.  501  of  this  voL 

6  Homburger  v.  Homburger,  46  How.  Pr.  346. 

6  Westmeath  v.  Westmeath,  4  Eng.  Ecc.  438 ;  followed  in  Juskeep  v.  Inskeep,  5 
Clarke  (Iowa),  204,  and  Freeman  v.  Freeman,  81  Wis.  535. 

1  Thayer  v.  Thayer,  101  Mass.  111.  Opportunity  must  be  proved  by  evidence 
that  the  parties  were  in  some  place  together  where  adultery  might  probably  have 
been  committed.  Otherwise  guilty  intention  might  be  mistaken  for  actual  guilt. 
Caton  v.  Caton,  7  Notes  Ecc.  &  Mat.  Cas.  16. 

8  Hamerton  v.  Hamerton,  2  Hagg.  Ecc.  8;  Grant  v.  Grant,  2  Curt.  Ecc.  Ct.  16. 

9  Moser  v.  Moser,  29  Ala.  313 ;  Inskeep  v.  Inskeep  (above);  Ferguson  v.  Ferguson, 
8  Sandf.  307.     The  following  cases  illustrate  the  application  of  this  principle,  by  in- 
dicating, not  rules  of  law,  but  situations  which  the  courts  have  held  would  sustain  a 
finding  of  fact.     Great  intimacy  and  opportunity;  not  proof.     Faussett  v.  Faussett,  7 
Notes  Ecc.  <fe  Mat.  Cas.  88.    Kissing,  letters  and  opportunity ;  not  proof.    Hamerton  v. 
Hamerton,  2  Hagg.  Ecc.  8.    Intimacy,  indecorous  freedom,  without  indecent  familiar- 
ities, but  with  opportunity ;  not  proof.     Caton  v.  Caton,  7  Notes  Ecc.  <fe  Mat.  Cas.  1 6. 
Willing  receipt  of  letters  of  solicitation,  suspicious  intimacy  and  opportunity  ;  not 
proof.     Haraerton  v.  Hamerton  (above),  approved  in  Caton  v.  Caton,  7  Notes  Ecc.  A 
Mat.  Cas.  16.     Criminal  disposition  and  attempt  to  gain  opportunity;  not  proof.    Ca- 
ton v.  Caton  (above).      Opportunity  alone;    not  proof.      Hamerton  v.  Hamerton 
(above).    Opportunity  must  be  connected  with  design.    Mayer  v.  Mayer,  21  N.  J.  Eq. 
(6  C.  E.  Green),  246.     Indecent  familiarities,  clandestine  interviews,  love  letters  ex- 
pressing desire,  followed  by  opportunity ;  held  to  be  proof.     Grant  v.  Grant,  2  Curt. 
Ecc.  Ct.  16,  71 ;  and  see  Lockyer  v.  Lockyer,  1  Edm.  beL  Cas.  107. 


ACTIONS  FOR  DIVORCE. 

The  social  habits  of  the  parties  and  of  the  community  of  which 
they  were  a  part,1  and  any  circumstances  giving  an  innocent  char- 
acter to  the  intimacy,2  are  relevant. 

6.  —  cogency  of  proof  J] — Nothing  is  to  be  taken  in  favor  of 
plaintiff  by  presumption  or  intendment,  even  in  the  case  of  a  de- 
fault.3    The  evidence  must  be  such  as  would  lead  the  guarded  dis- 
cretion of  a  reasonable  and  just  man  to  the  conclusion  of  guilt,  for 
it  is  not  to  lead  a  rash  and  intemperate  judgment,  moving  upon 
appearances  that  are  equally  capable    of  two  interpretations, 
neither  is  it  to  be  a  matter  of  artificial  reasoning,  judging  upon 
such  things  differently  from  what  would  strike  the  careful  and 
cautious  consideration  of  a  discreet  man.4    It  must  be  a  conclusion 
so  far  inevitable  as  that  the  supposition  of  innocence  cannot  by 
any  just  course  of  reasoning  be  reconciled  with  it.5 

7.  —  opinions  of  witnesses.'] — The  opinions  of  witnesses  as  to 
guilt  or  guilty  intent  are  not  competent.6    But  the  impression  or 
belief  produced  in  the  mind  of  the  witness  at  the  time  of  what  he 
saw,  may  be  called  for  by  the  court,7  or  on  cross-examination.8 

8.  —  limits  of  the  issue  of  adultery  in  respect  to  time  and 
place.] — In  connection  with  proof  of  at  least  improper  familiarities 
within  the  time  alleged,  evidence  of  acts  of  adultery,  with  the  same 
paramour,  previous  to  the  time  alleged,  is  admissible  to  give  sig- 
nificance to  those  familiarities.9    Evidence  of  adulterous  acts  sub- 
sequent to- the  time  alleged,  is  not  admissible  because  it  raises  no 
presumption  that  the  prior  familiarities  were  accompanied  with  an 
adulterous  act  within  the  period  alleged.10    If  presumptive  evi- 
dence of  an  act  of  adultery,  within  the  period  alleged,  has  been 
given,  evidence  of  an  act,  with  the  same  paramour,  subsequent  to  the 
period  but  reasonably  proximate  in  time,  may  be  proved  in  corrob- 


1  Inskeep  v.  Inskeep,  5  Clarke  (Iowa),  204 ;  Gethin  v.  Gethin,  2  Sw.  <fe  Tr.  560-3. 

8  Dunlap  v.  Robinson,  2  Ala.  N.  S.  100;  Berckmans  v.  Berckmans,  17  N.  J.  Eq. 
(2  C.  E.  Green),  453,  affi'g  16  Id.  122 ;  King  v.  King,  4  Scotch  Sess.  Cas.  2d  series, 
583. 

3  Linden  v.  Linden,  36  Barb.  61.     . 

4  Lovedon  v.  Lovedon,  2  Hagg.  Cons.  3;    Ferguson  v.  Ferguson,  3  Sandf.  807; 
Freeman  v.  Freeman,  31  Wis.  235 ;  Mosser  v.  Mosser,  29  Ala.  N.  S.  313;    Day  v. 
Day,  3  H.  W.  Green  Ch.  (N.  J.)  444. 

6  Anon.,  17  Abb.  Pr.  48,  and  cas.  cit.     Proof  beyond  reasonable  doubt  is  required 
in  Berckmans  r.  Berckmans,  17  N.  J.  Eq.  (2  C.  E.  Green),  453,  affi'g  16  Id.  222; 
Freeman  v.  Freeman  (above).     Compare  p.  495  of  this  vol.     For  various  forms  of 
stating  the  rule  requiring  proof  beyond  a  mere  preponderance  of  probability,  see  Mil- 
ler v.  Miller,  4  Sw.  &  Tr.  427;    Clare  v.  Clare,  19  N.  J.  Eq.  (4  C.  E.  Green),  37; 
Cooper  v.  Cooper,  10  La.  O.  S.  249;  Edmond's  Appeal,  57  Penn.  St.  232;  Catonv. 
Cuton,  7  Notes  Ecc.  <fe  Mat.  Cas.  16  ;  Day  v.  Day,  3  Green  Ch.  (N.  J.)  444;  Purcell 
v.  Purcell,  4  Ilenn  «fe  M.  511 ;  Meble  v.  Lapeyrollerie,  16  La.  Ann.  4. 

«  See  Cox  v.  Whitfield,  18  Ala.  738,  741. 

7  Crewe  v.  Crewe,  3  Hagg.  Ecc.  129,  cited  in  Macq.  on  Marr.  <fc  D.  213. 

8  See  3  Abb.  New  Cas.  234,  note. 

9  Lockyer  v.  Lockyer,  1  Edm.  Sel.  Cas.  107. 

10  Freeman  v.  Freeman,  31  Wis.  235.  There  should  be  leave  to  amend  or  file 
supplemental  pleading. 


746  ACTIONS  FOR  DIVORCE. 

oration.1  Upon  the  same  principles,  prima  facie  proof  of  com- 
mission of  adultery  at  the  place  alleged,  may  be  corroborated  by 
evidence  of  other  acts  of  adultery  at  other  places  not  alleged  ; 2 
but  such  evidence  is  not  competent  as  an  independent  charge.3 

9.  —  and  as  to  paramour.] — An  allegation  of  adultery  with 
a  person  named,  is  not  sustained  by  proof  of  adultery  with  another 
person,4  or  with  a  person  unknown  ; 5  but,  under  an  allegation  of 
adultery  with  a  person  unknown,  or  of  adultery  with  a  person 
named  and  others  unknown  (with  proper  allegations  of  inability 
to  state  name),  adultery  with  a  person  not  named,  whether  known 
or  unknown,  may  be  proved.6 

10.  —  delay. ~\ — The  husband's  delay  to  proceed  after  having 
what  he  claims  as  proof,  is  strong  evidence  in  the  wife's  favor? 
The  wife's  delay  is  not  equally  strong  evidence.8     Aversion  to 
publicity  or  to  involving  children,  does  not  excuse  the  husband's 
delay,  as  it  does  the  wife's.9     Explanations  of  delay  are  admis- 
sible.10 

11.  —  character^ — The  defendant's  character  is  not  in  issue.11 
But  unquestionably  good  character  appearing  incidentally  from 
otherwise  competent  evidence,  may  be  considered  as  a  circum- 
stance in  defendant's  favor,  aiding  the  presumption  of  innocence.12 
The  unchaste  character  of  a  servant  employed  for  household  pur- 
poses, is  not  alone  competent.13 

12.  Cruelty.'] — The  mode  of  proving  facts  such   as   consti- 
tute cruelty  and  their  effects,  has  been  stated  in  other  chapters.14 
Defendant's  conviction  on  a  plea  of  guilty,15  or  his  plea  of  guilty18 
to  an  indictment  for  cruelty,  is  competent  against  him  j  but  a  con- 
viction on  a  plea  of  not  guilty  is. not.17    A  defendant  offering  to 
prove,  in  his  justification,  plaintiff's  ill-conduct,  is  restricted  to 
what  preceded  or  was  contemporaneous  with  his  own  cruelty  or 
misconduct.18 

1  See  reasoning  in  Law?on  v.  The  State,  20  Ala.  N.  S.  66. 
3  Thayer  v.  Thayer,  101  Mass.  111. 

3  Green  v.  Green,  26  Mich.  437. 

4  See  cases  cited  and  limited  in  Mitchell  v.  Mitchell,  61  N.  Y.  398. 

5  Bokel  v.  Bokel,  3  Edw.  376. 

6  Mitchell  v.  Mitchell,  61  N.  Y.  398. 

7  Berckmans  v.  Berckmans,  16  N.  J.  Eq.  (1  C.  E.  Green),  122,  affi'd  in  17  Id.  435. 

8  Newman  v.  Newman,  L.  R.  2  Pr.  &  D.  157. 

9  Cummins  v.  Cummins,  15  N.  J.  Eq.  (2  McCarter),  138. 

10  Leary  v.  Leary,  18  Geo.  G96. 

11  Humphrey  v.  Humphrey,  7  Conn.  116  ;  Washburn  v.  "Washburn,  5  N.  H.  195; 
Lockyer  v.  Lockyer,  1  Edm.  Sel.  Cas.  107. 

12  Alexander  v.  Alexander,  2  Sw.  &  Tr.  95. 

13  Carter  v.  Carter,  62  111.  439. 

14  Pages  179,  599,  648,  682,  685  of  this  vol. 

15  1  Greenl.  Ev.  (13  ed.)  570,  §  527a,note. 
"Page  649  of  this  vol. 

"Id. 

18  Bihin  v.  Bihin,  17  Abb.  Pr.  19. 


ACTIONS  FOR  DIVORCE.  747 

13.  Witnesses."] — The  competency  of  the  parties  has  been 
stated.1    Plaintiff 's  testimony  alone  may,  in  the  discretion  of  the 
court,  in  a  perfectly  clear  case,  be  sufficient  if  other  evidence  does 
not  exist  or  cannot  be  obtained.2    A  child,  if  of  a  competent  age 
and  intelligence  to  be  a  witness,  may  testify  against  its  parent.8 
Testimony  of  a  prostitute,4  or  an  alleged  paramour,5  or  the  keeper 
or  a  servant  of  a  house  of  prostitution,6  is  not  sufficient  to  prove 
adultery.    That  of  a  witness  employed  to  watch  and  detect  is  not 
incompetent,  but  is  to  be  received  with  great  caution  and  scrupu- 
lously scrutinized.7    At  least  two  witnesses  are  generally  required. 

Satisfactory  testimony  of  the  defendant  and  the  alleged  para- 
mour, to  their  innocence,  though  of  little  weight  against  clear 
proof,  should  prevail  against  merely  circumstantial  evidence  or 
unsatisfactory  testimony  making  a  doubtful  case.8 

14.  Confessions  and  Admissions.] — A   confession,  not  con- 
nected with  other  proof,  is  not  competent.9     However  explicit, 
it  will  not  alone  justify  a  decree ; 10  but  may,  in  the  discretion  of 
the  court,  be  sufficient  when  clearly  proved,  if  accompanied  with 
evidence  effectually  repelling  all  suspicion  of  collusion,11  or  cor- 
roborated by  other  evidence  of  guilt,12  and  free  from  any  appear- 


1  Pages  165  and  166  of  this  vol.  If.  Y.  Rules  78-80  provide  for  their  examina- 
tion in  certain  cases. 

4  Robbins  v.  Robbins,  100  Mass.  150 ;  Kaiser  v.  Kaiser,  16  Hun,  602,  605.     The  N. 

Y.  courts  usually  require  further  evidence.     Compare  U.  v.  J.,  L.  11.  1  Pr.  <fe  M.  460. 

•   3  Lockwood  v.  Lockwood,  2  Curteis,  281.     The  omission  to  call  a  child  of  tender 

years  is  approved  in  Kneale  v.  Kneale,  28  Mich.  344,  COOLET,  J. ;  s.  p.  Tobey  v. 

Leonards,  2  Wall.  423,  WAYNE,  J. 

4  Turney  v.  Turney,  4  Edw.  Ch.  566.    Compare  Ciocci  v.  Ciocci,  26  Eng.  L.  &  Eq. 
604,  9.  o.  18  Jur.  194. 

5  Ginger  v.  Ginger,  L.  R.  1  Pr.  &  D.  87,  and  see  Simons  v.  Simons,  13  Tex.  558. 
8  Platt  v.  Platt,  5  Daly,  2.95,  297. 

7  Anon.  17  Abb.  Pr.  48. 

8  Mayer  v.  Mayer,  21  N.  J.  Eq.  240;  Larrison  v.  Larrison,  20  Id.  100. 

9  Doe  v.  Roe,  1  Johns.  Gas.  25;  Betts  v.  Betts,  1  Johns.  Ch.  197;  Miller  v.  Mil- 
ler, 1  H.  W.  Green  Ch.  (N.  J.)  139;    Searle  v.  Price,  2  Hagg.  Cons.  189 ;  Macqueen's 
Pr.  in  H.  of  L.  606 ;  1  Tayl.  Ev.  673 ;  and  see  White  v.  White,  45  N.  H.  121.    Contra, 
Sheffield  v.  Sheffield,  3  Tex.  79;  Williams  v.   Williams,  35  L.  J.  Mat.  C.,  s.  c.  8 
L.  K.  1  Pr.  &  D.  29  •,  13  L.  T.  R.  N.  S.  610;  Robinson  v.  Robinson,  1  Sw.  &  Tr.  562; 
Vance  v.  Vance,  8  Greeul.  (Me.)  132. 

10  Lyon  v.  Lyon,  62  Barb.  138,  and  cases  above  cited.     By  the  N.  Y.  Statute  "no 
sentence  of  nullity  of  niarriage  shall  be  pronounced  solely  on  the  detlarntions  or  con- 
fessions of  the  parties;   but  the  court  shall  in  all  cases  require  other  satisfactory  evi- 
dence of  the  existence  of  the  facts  on  which  the  allegation  of  nullity  is  founded."    2 
N.  Y.  R.  8.  p.  144,  S  36 ;   3  Id.  (6th  ed.)  155.     But  the  rule  is  not  dependent  on  the 
statute,  but  ia  one  of  public  policy.     True  v.  True,  6  Minn.  458.     On  the  infirmity  of 
evidence  of   confessions,  see  Lench  v.  Lench,  18  Ves.  611 ;    Smith  v.  Burnham,  3 
Sumn;  435;  1  Greenl.  on  Ev.  (Redf.  ed.)  229,  §  200;    State  v.  Fields,  Peck  (Tenn.), 
141  ;  Malin  v.  Malin,  1  Wend.  625,  652;  Getman  v.  Getman,  1  Barb.  Ch.  499,  504; 
Law  v.  Merrills,  6  Wend.  268,  rev'g  9  Cow.  65;  Garrison  v.  Aiken,  2  Barb.  25,  27; 
Rex  v.  Simons,  6  C.  C.  <fe  P.  641 ;  Rex  v.  Coleman,  Remarkable  Trials,  1 162,  cited  in 
Joy  on  Confessions,  108. 

11  Billings  v.  Billings,  11  Pick.  461 ;  Fullerton  v.  Fullerton,  11  Scotch  Ct.  of  Sess. 
Cas.  3d  series,  720 ;  Armstrong  v.  Armstrong,  32  Miss.  279. 

19  Cases  above;  Clutch  v.  Clutch,  1  Saxt.  N.  J.  474;  Lyon  v.  Lyon,  62  Barb.  138; 


74:8  ACTIONS  FOR  DIVORCE. 

ance  of  collusion.1  A  confession  in  ambiguous  language  sug- 
gestive of  guilt,  but  consistent  with  there  having  been  no  actual 
adultery,  is  not  enough  ; 8  but  is  competent,  and  may  be  sufficient, 
in  connection  with  other  proof.8 

Confessions  or  declarations  by  the  alleged  paramour  are  no 
evidence  against  the  defendant,4  unless  brought  to  the  knowledge 
of  defendant  and  proved  as  a  foundation  for  showing  defendant's 
tacit  or  express  confession.5  Admissions  or  declarations  of  a  third 
person,  though  made  when  acting  for  the  defendant,  are  not  com- 
petent as  a  confession  unless  shown  to  have  emanated  from  the 
defendant.6 

If  the  confession  or  admission  received,  is  contained  in  a  writ- 
ing, the  party  against  whom  a  part  is  read  has  a  right  to  have  the 
whole  put  in  evidence.7 

15.  Condonation.'] — Condonation  may  be  proved  by  the  vol- 
untary cohabitation  of  the  parties,  with  the  knowledge  of  the 
fact  of  adultery.8  Condonation  may  be  conditional.  Cohabita- 
tion is  not  conclusive  proof  of  condonation  of  cruelty.9 


Sawyer  v.  Sawyer,  Walk.  Ch.  52 ;  Baxter  v.  Baxter,  1  Mass.  346 ;  Matchin   v. 
Matchin,  6  Penn.  St.  332. 

1  Doe  v.  Hoe,  1  Johns..  Cas.  25  ;  Hoffm.  on  Ref.  161.. 

2  Winscome  v.  Winscome,  3  Sw.  &  Tr.  380  :  Williams  v.  Williams,  1  Hagg.  Cons. 
302;  Caton  v.  Caton,  1  Notes  of  Ecc.  &  Mat.  Cas.  16. 

3  Faussett  v.  Faussett,  1  Notes  of  Ecc.  &  Mat.  Gas.  88 ;  Grant  v.  Grant,  2  Curt. 
Ecc.  16. 

4  Montgomery  v.  Montgomery,  3  Barb.  Ch.  132  ;  Leary  v.  Leary.  18  Geo.  696  ; 
Hobby  v.  Hobby,  64  Barb.  277. 

5  Burgess  v.  Burgess,  2  Hagg.  Cons.  223  ;  Croft  v.  Croft,  3  Hagg.  Ecc.  310. 

6  Faussett  v.  Faussett,  1  Notes  Ecc.  efc  Mat.  Cas.  88. 

7  Forrest  v.  Forrest,  6  Duer,  102,  132,  affi'd  in  25  N.  Y.  501.     As  to  correspon- 
dence,  see  p.  677  of  this  vol. 

8  2  N.  Y.  R.  S.  p.  145,  §  42 ;  3  Id.  (6th  ed.)  156.    And  this  is  conclusive.    See  Sew- 
all  v.  Sewall,  122  Mass.  156,  s,  c.  23  Am.  R.  299 ;  Reynolds  v.  Reynolds,  4  Abb.  Ct 
App.  Dec.  35. 

9  Reynolds  v.  Reynolds  (above) ;  and  see  Perkins  v.  Perkins,  6  Mass.  69. 


CHAPTER  LIII. 

ACTIONS  OF  QUO  WARRANTO. 
1.  Office.  2.  Corporations. 

1.  Office.'} — The  claimant  to  office  must  show  a  good  title, 
not  a  colorable  one,  nor  one  resting  upon  his  own  neglect.1  Jf  he 
claims  by  appointment,  the  title  of  the  appointing  power  must 
be  shown.2  Preliminary  explanation  is  not  required  of  an  altera- 
tion in  a  public  document  produced  from  the  custody  of  the 
proper  officer.3 

The  election  return  of  the  local  canvassers  is  competent  evi- 
dence of  the  number  of  votes  cast.4  But  no  canvasser's  certificate 
is  conclusive ;  it  may  be  disproved, — for  instance,  by  proof  that 
votes  were  improperly  registered  or  received  at  the  election.5 
And  for  this  purpose  oral  evidence  is  competent.6  He  who  im- 
peaches the  certificate  must  show  that  the  votes  were  untruly 
canvassed,  or  that  some  facts  exist  which  show  that  the  certificate 
does  not  truly  state  the  result  of  the  popular  will.  It  is  not 
enough  to  show  irregularities  in  the  constitution  of  the  board  of 
inspectors,  or  the  mode  of  receiving  votes,  &c.,  if  no  illegal  votes 
were  received,  and  no  legal  ones  were  excluded.7  This  burden  is 
on  him,  even  though  it  require  proving  a  negative.8  The  certifi- 
cate may  be  contradicted  by  producing  the  ballots,  if  it  appear 
that  they  have  been  preserved  in  the  manner  and  by  the  officers 
prescribed  in  the  statute,  and  that,  while  in  such  custody,  they 
nave  not  been  so  exposed  to  the  reach  of  unauthorized  persons  as 
to  afford  a  reasonable  probability  of  their  having  been  changed  or 


1  People  ex  rel.  Ganno  v.  Bartlett,  6  "Wend.  422. 

9  People  ex  rel.  Steinert  v.  Anthony,  6  Hun,  142.  For  the  mode  and  effect  of 
resignation  and  of  revocation  of  it,  see  State  v.  Ferguson,  31  N.  J.  L.  107;  State  v. 
Hauss,  43  Ind.  105;  State  v.  Fitts,  49  Ala.  402  ;  also  3  Nev.  666  ;  1  Cranch,  137  ;  6 
Cal.  26. 

3  People  ex  rel.  Stone  v.  Minck,  21  N.  Y.  539 ;  Devoy  v.  Mayor,  <fec.  of  N.  Y.  35 
Barb.  264,  s.  c.  22  How.  Pr.  226. 

4  Upon  general  principles,  even  though  there  be  no  express  statute.  People  ex  rel. 
Stone  v.  Minck,  21  N.  Y.  539.   Otherwise  of  a  town  clerk's  certificate.  People  v.  Cook, 
14  Barb.  259,  affi'd  in  8  N.  Y.  67. 

5  People  v.  Cook  (above);   People  v.  Van  Slyck,  4  Cow.  297 ;   People  v.  Vail,  20 
Wend.  12.     Otherwise  of  minutes  of  town  meeting,  kept  by  the  town  clerk  pursuant 
to  requirement  of  law.     If  erroneous,  thev  must  be  corrected  by  a  direct  proceeding. 
People  v.  Zeyst,  28  N.  Y.  140,  and  cases  cited;  1  Dill.  M.  C.  850.  §  286.     As  to  the 
power  of  the  clerk  or  board  to  amend  the  records,  see  1  Dill.  M.  C.  346,  §§  233,  234. 

«  People  ex  rel.  Stemmler  v.  McGuire,  2  Hun,  269,  274,  277,  s.  c.  4  Supm.  Ct.  (T. 
«fc  C.)  658.  affi'd  in  60  N.  Y.  640. 

7  People  v.  Cook,  8  N.  Y.  67,  affi'g  14  Barb.  259. 

8  People  ex  rel.  Smith  v.  Pease,  27  N.  Y.  46,  a.  c.  25  How.  Pr.  495,  affi'g  80  Barb.  58a 

[749] 


750  ACTIONS  OF  QUO  WARRANTO. 

tampered  with.1  Writing,  on  the  ballot,  controls  print.*  To  show 
that  one  voted,  the  poll  list  is  admissible,  though  not  authenti- 
cated nor  filed.3  A  voter  may  testify,  as  a  witness,  how  he  voted.4 
If  he  refuses  to  disclose,  or  fails  to  remember,  for  whom  he  voted, 
circumstantial  evidence  is  competent  to  raise  a  presumption  as  to 
that  fact.5  The  declarations  of  a  voter,  although  hearsay,  are  re- 
ceived on  the  question  of  his  qualification,  for  the  purpose  of  sus- 
taining or  annulling  his  vote,  but  not  to  set  aside  the  election  on 
other  grounds.8  One,  alien  born,  who  voted,  must  be  presumed  to 
have  been  naturalized,  in  absence  of  evidence  to  the  contrary  ;7 
but  if  there  is  prima  facie  evidence  that  he  was  never  naturalized, 
the  burden  is  shifted.8 

Defendant  cannot  have  judgment  for  the  office  by  showing 
possession  in  himself,  even  though  the  relator  fail  to  prove  title.9 

2.  Corporations.'] — If  the  proceeding,  founded  on  alleged 
usurpation  of  power,  is  by  the  State,  not  on  the  relation  of  a 
private  person,  the  burden  of  proof  is  on  the  defendant  to  dis- 
claim or  to  justify,  and  the  State  is  not  bound  to  make  affirmative 
proof.10  If  the  corporation  is  shown  once  to  have  existed,  its  con- 
tinuance is  presumed,  until  the  contrary  is  shown,,11  An  official 
certificate,  sanctioning  the  construction  of  defendants'  works,  and 
allowing  them  to  exercise  their  franchise,  is  not  conclusive  against 
the  people.13  Where  it  is  discretionary  with  the  court  to  declare 
a  forfeiture  or  not,  there  should  be  some  evidence  of  existing 
danger  or  inconvenience  to  the  community,  requiring  it.13  Where 
the  action  depends  on  the  breach  of  a  condition  subsequent,  a 
failure  to  comply  with  it  literally,  is  not  enough.14  A  substan- 
tial performance  will  prevent  forfeiture.15 


I  Hudson  T.  Solomon,  19  Kans.  177,  s.  c.  16  Alb.  L.  J.  349. 

s  People  v.  Saxton,  22  N.  Y.  309.  As  to  pasters,  see  People  ez  rel.  Gregory  v. 
Love,  63  Barb.  535. 

3  People  ex  rel.  Smith  v.  Pease,  27  N.  Y.  45,  s.  c.  25  How.  Pr.  495,  affi'g  30  Barb. 
688. 

4  People  ex  rel.  Judson  v.  Thacher,  55  N.  Y.  625 ;  reported  below  in  7  Lans.  274, 
8.  c.  1  Supra.  Ct.  (T.  &  C.)  158.     But  his  intention  is  to  be  learned,  not  from  his  tes- 
timony to  the  mental  purpose,  but  by  a  reasonable  construction  of  his  acts.     People 
v.  Saxton,  22  N.  Y.  309. 

6  People  ex  rel.  Smith  v.  Pease  (above). 

6  Id. 

*  Id.  Parol  evidence  is  not  admissible  to  impeach  the  record  of  naturalization 
by  showing  that  the  preliminary  steps  were  not  taken.  People  ex  rel.  Brackett  v. 
M^Gowan,  77  111.  644,  s.  c.  20  Am.  R.  254. 

8  People  ex  rel.  Smith  v.  Pease  (above). 

9  People  ex  rel.  Judson  v.  Thacher,  55  N.  Y.  525. 

10  Ang.  &NA.  on  C.  §  756 ;  People  v.  Ulica  Ins.  Co.  15  Johns.  358  ;  High  on  Ex.  R. 
§652. 

II  Ang.  &  A.  on  C.  §  757;  People  v.  Manhattan  Co.  9  Wend.  351,  378. 
14  People  v.  Fishkill  <fe  Beekman  Plankroad  Co.  27  Barb.  44J>. 

13  Ang.  <fe  A.  on  C.  §  775  ;  State  v.  Essex  Bank,  8  Vt.  489. 

14  Thompson  v.  People,  23  Wend.  637,  686,  rev'g  21  Id.  235 ;  People  v.  Williams* 
bureh  Turnpike  Co.  47  N.  Y.  586,  692. 

"Id. 


CHAPTER  LIY. 

ACTIONS  FOR  INFRINGEMENT  OF  TRADE  MARKS. 

1.  Plaintiff's  title.  4.  Damages. 

2.  Resemblance  of  defendant's  mark.  6.  "Witnesses. 

3.  Intent.  6.  Defenses. 

1.  Plaintiff's  title."] — Title  may  be  shown  by  evidence  of  in- 
vention or  composition  (by  plaintiff  or  his  servants/  or  grantors),3 
and  an  appropriation  and  adoption8  in  a  general  use  antedating  de- 
fendant's use.     The  fact  that  an  article  was  known  in  a  trade  in  a 
certain  way,  is  one  to  which  qualified  witnesses  may  testify  di- 
rectly ; 4  and  even  negative  evidence  from  such  witnesses  is  com- 
petent.5   In  an  action  in  a  State  court,  registration  under  the  act 
of  Congress6  is  not  a  ground  of  right  or  relief.7    In  an  action  in 
the  United  States  courts,  a  certification  of  registration  is  not  con- 
clusive evidence  that  the  mark  is  a  proper  trade  mark,  or  that 
plaintiff  has  prior  right.8     Unsustained  claim  of  copyright  is  not 
relevant.9 

2.  Resemblance  of  defendant's  mark.'] — It  is  not  necessary  to 
prove  the  use  of  a  mark  in  all  respects  like  the  original.     It  is  suffi- 
cient if  the  resemblance  is  such  as  to  show  an  intention  to  deceive,10 
or  a  degree  of  imitation  so  resembling  the  mark  of  the  plaint- 
iff, as  that  ordinary  purchasers,  buying  with  ordinary  caution,  are 
likely  to  be  misled.11    Variations  that  a  comparison  with  the  orig- 
inal would  instantly  disclose,  do  not  protect  defendant,  if  it  ap- 
pears that  the  ordinary  mass  of  purchasers,  paying  that  attention 
which  such  persons  usually  do  in  buying  the  article,  would  prob- 


1  Caswell  v.  Davis,  68  N.  T.  223. 

I  Cong.  <fe  Ernp.  Spring  Co.  v.  High  Rock  Cong.  Spring  Co.  10  Abb.Pr.  N.  S.  348, 
8.  c.  45  N.  Y.  291,  rev'g  57  Barb.  526;  Fulton  v.  Sellers,  4  Brewst.  (Penn.)  72. 

8  As  to  how  far  proof  of  association  of  the  plaintiff's  article,  and  his  only,  with 
the  word  adopted  by  him,  will  serve  to  show  origin  and  ownership,  see  Smith  v.  Rey- 
nolds, 10  Blatchf.  100 ;  Morrison  v.  Case,  9  Id.  548 ;  Meriden  Britannia  Co.  v.  Parker, 
39  Conn.  450;  Canal  Co.  v.  Clark,  13  Wall  311;  same  cases,  Codd.  Dig.  L.  of 
Tradem.  §§  261,  694,  716,  759,  1010. 

4  Pollen  v.  Le  Roy,  80  N.  Y.  649. 

6  Wilkinson  v.  Greely,  1  Curt.  C.  Ct.  439. 
•  U.  S.  R.  S.  §  4937. 

7  Pophatn  v.  W  ilcox,  14  Abb.  Pr.  N.  S.  206.     Though  it  may  be  a  relevant  fact  on 
the  question  of  adoption  and  priority  of  claim. 

8  Moorman  v.  Hoge,  2  Sawyer,  78. 

9  Wolfe  v.  Barnett,  24  La.  Ann.  97,  8.  o.  13  Am.  R.  111. 

10  Wotherspoon  v.  Currie,  L.  R.  6  II.  of  L.  608,  s.  c.  8  Moak's  Eng.  29. 

II  McLean  v.  Fleming,  96  U.  S.  (6  Otto),  245,  251. 

[731] 


752     ACTIONS  FOR  INFRINGEMENT  OF  TRADE  MARK& 

ably  be  deceived.1  Evidence  that  any  one  has  been  actually  de- 
ceived, or  has  bought  goods  with  the  defendant's  mark,  under  the 
belief  that  they  were  manufactured  by  the  plaintiff,  is  not  neces- 
sary, provided  the  resemblance  is  such  as  would  be  likely2  to  cause 
the  one  mark  to  be  mistaken  for  the  other.3  Probability  of  de- 
ception is  generally  shown  by  resemblance  and  by  the  opinions  of 
experts.  Kesemblance  as  shown  by  inspection  is,  however,  the 
primary  test  and  criterion,  and  proof  by  experts  is  seldom  re- 
sorted to. 

3.  Intent."] — Evidence  that  defendant  intentionally,  either 
uses  or  closely  imitates  plaintiff's  trade  mark,  raises  a  legal,  but 
not  conclusive,  presumption  of  a  fraudulent  purpose  of  deceiving 
the  public ;  and  in  such  case,  even  at  law,  nominal  damages  will  be 
given,  though  no  specific  injury  be  proved.4  To  obtain  an  injunc- 
tion, fraud  need  not  be  proved.  An  infringement  inadvertently 
commenced  may  be  enjoined.5  Intent  is  generally  immaterial  in 
equity  cases,  except  upon  the  question  of  damages.6  Presump- 
tion of  fraudulent  intent,  arising  from  resemblance,  is  very  strong 
where  it  is  shown  that  the  defendant  himself  places  the  mark 
upon  the  articles  ;  but  in  suits  against  a  dealer  who  buys  and  sells 
them  with  the  marks  already  affixed,  knowledge  must  be  clearly 
proved  to  make  him  liable  to  account. 


1  Meriden  Britannia  Co.  v.  Parker,  39  Conn.  450 ;  Partridge  v.  Menck,  1  How. 
App.  Cas.  548,  affi'g  2  Sandf.  Ch.  622,  2  Barb.  Ch.  101 ;  Davis  v.  Kendall,  2  R.  I. 
666 ;  Fetridge  v.  W.ells,  4  Abb.  Pr.  144,  s.  c.  13  How.  Pr.  385  ;  Braham  v.  Bnstard,  9 
L.  T.  R.  N.  S.  199,  s.  c.  1  H.  &  M.  4473  11  \V.  R.  1061,  2  New.  572;  Swift  v. 
Dey,4  Robt.  611 ;  Seixo  v.  Provezende,  L.  R.  1  Ch.  192,  s.  c.  12  Jurist  (N.  S.),  215, 
14  W.  R.  357, 14  L.  T.  R.  N.  S.  314 ;  Gillott  v.  Esterbrook,  48  N.  Y.  374,  affi'g  47  Barb. 
455 ;  Blackwell  v.  Crabb,  86  L.  J.  Ch.  N.  S.  504;  Rowley  y.  Hougliton,  2  Brews.  303, 
8.  o.  7  Phil.  39 ;  Filley  v.  Fassett,  44  Mo.  168;  McCartney  v.  Garnhart,  45  Id.  593; 
Hostetter  v.  Vowinkle,  1  Dill.  329 ;  Blackwell  v.  Armistead,  5  Am.  L.  T.  85  ;  Burke 
v.  Cassin,  45  Cal.  467 ;  Bradley  v.  Norton,  33  Conn.  157 ;  Amoskeag  Mfg.  Co.  v.  Gar- 
ner, 4  Am.  L.  T.  N.  S.  176  ;  Leather  Cloth  Co.  <tc.  v.  American  Leather  Cloth  Co.  <tc. 
11  H.  of  L.  Cas.  623,  85  L.  J.  Ch.  N.  S.  53,  13  W.  R.  873,  12  L.  T.  R.  N.  S.  742,  6  New. 
209,  11  Jur.  N.  S.  81 ;  Bnss  v.  Dawber,  19  L.  T.  R.  N.  S.  626 ;  same  cases,  Codd.  Dig. 
L.  of  Tradem.  §§  289,  839-401 

8  In  many  of  the  cases  even  the  possibility  of  misleading  the  public  is  held  suffi- 
cient. See  Amoskeag  Mfg.  Co.  v.  Garner,  4  Am.  L.  T.  N.  S.  176;  Cope  v.  Evans,  L. 
R.  18  Eq.  138,  s.  c.  30  L.  T.  R.  N.  S.  292,  22  W.  R.  453;  Meriden  Britannia  Co.  v. 
Parker  (above). 

8  Abbott  v.  Bakers,  (fee.  Ass'n,  1872,  "Weekly  Notes,  31 ;  Braham  v.  Bustard 
(above);  Partridge  v.  Menck  (above) ;  Shrimpton  v.  Laight,  18  Beav.  164;  Filley  v. 
Fassett  (above) ;  same  cases,  Codd.  Dig.  L.  of  Tradem.  §§  286,  349,  360,  377,  389 ;  but 
Bee,  also,  £§  288,  296,  327,  352,  361,  395. 

*  Browne  on  Tradem.  §  601.  Otherwise  of  an  ignorant  violation.  Weed  v.  Peter- 
eon,  12  Abb.  Pr.  N.  S.  178.  On  the  other  hand,  mnlicious  use  of  same  name,  if  it  be 
not  a  trade  mark,  is  not  actionable.  See  Glendon  Iron  Co.  v.  Uhler,  75  Penn.  St.  467. 

6  Singer  Manufacturing  Co.  v.  Wilson,  26  Weekly  R.  664,  667 ;  McLean  v.  Flem- 
ing, 96  U.  S.  (6  Otto),  245. 

6  Millington  v.  Fox,  3  Mylne  <fc  Cr.  338 ;  Coats  v.  Holbrook,  2  Sandf.  Ch.  586,  s.  o. 
sub  worn.  Cuftta  v.  Shepard,  3  N.  Y.  Leg.  Obs.  404 ;  Taylor  v.  Carpenter,  1 1  Paige,  292, 
s.  c.  2  Sandf.  Cb.  603  ;  Coffeen  v.  Brunton,  4  McLean,  616 ;  Amoskeag  Mfg.  Co.  v. 
Spear,  2  Sandt  Ch.  599;  and  other  cases  in  Codd.  Dig.  L.  of  Tradem.  §§  450-84. 


ACTIONS  FOR  INFRINGEMENT  OP  TRADE  MARKa  753 

4.  Damages.] — In  an  action  for  an  injunction,  it  is  not  neces- 
sary to  prove  damage,  if  the  evidence  satisfies  the  court  that  the 
thing  done  has  a  tendency  to  enable  defendants  to  deceive  by  sell- 
ing, as  and  for  the  plaintiff's,  their  own  goods.1    In  an  action  for 
damages,  evidence  of  actual  damage  is  not  necessary  in  order  to 
entitle  plaintiff   to   recover   nominal  damages.2    Evidence  that 
plaintiff's  sales  fell  off  is  received.3    In  equity,  the  proof  of  dam- 
ages should  be  directed  to  ascertaining  the  profits  which  the 
plaintiff  would  have  realized,  if  he  had  sold  of  his  own  goods  the 
same  quantity  which  the  defendant  sold  with  the  spurious  marks 
thereon.4    It  is  immaterial  what  the  defendant  made  or  lost.5 
Vindictive  damages  are  not  allowed,8  nor  the  expense  of  procur- 
ing an  injunction.7    The  relative  quality  of  the  plaintiff's  and  the 
defendant's  goods  is  immaterial.8 

5.  Witnesses.] — A  party  claiming  a  trade  mark  may  be  com- 
pelled to  testify  as  to  the  process  of  his  manufacture,  so  far  as 
relevant  ;9  and  the  alleged  infringer  may  be  compelled  to  testify,10 
and  to  produce  his  books,  shown  to  have  a  tendency  to  prove  the 
infringement,11  subject  to  his  privilege  against  being  required  to 
criminate  himself12  in  reference  to  a  criminal  offense  not  statute 
barred.13    Defendant  may  be  compelled  to  disclose  the  names  of 
all  persons  to  whom  he  has  sold  the  goods.14 

6.  Defenses] — Neither  alienage  of  the  person  whose  trade 
marks  are  simulated,  nor  the  fact  that  he  resides  in  a  foreign 


I  Braham  v.  Beachim,  26  "Weekly  R.  654,  656. 

5  Blofield  v.  Payne,  1  N.  &  M.  353,  s.  c.  4  B.  <fc  A.  410,  8  L.  J.  N.  S.  68 ;  Reeves 
V.  Denicke,  12  Abb.  Pr.  N.  S.  92;  Singer  Mfg.  Co.  v.  Kimball.  10  Scottish  L.  R.  173, 
8.  c.  45  Scottish  Jurist,  201 ;  Thompson  v.  Winchester,  19  Pick.  214;  Rodgers  v.  No- 
mil,  11  Jurist.  1037,  s.  c.  6  C.  B.  109,  17  L.  J.  N.  S.  C.  P.  62;   same  cases,  Codd. 
Dig.  L.  of  Tradem.  §§  235,  432,  435,  928,  929. 

8  Hostetter  v.  Vowinkle,  1  Dill.  C.  Ct.  329. 

4  Hostetter  v.  Vowinkle  (above);  Burnett  v.  Phalon,  11  Abb.  Pr.  157,  B.  c.  19  How. 
Pr.  630;  Faber  v.  Hovey,  Codd.  Dig.  L.  of  Tradem.  §  249.  And  see  Marsh  v.  Bill- 
ings, 7  Cush.  322;  Leather  Cloth  Co.  <tc.  v.  Hirschfield,  13  L.  T.  R.  N.  S.  427,  B.  c.  L.  R. 
1  Eq.  299;  eame  cases,  Codd.  Dig.  L.  of  Tradem.  §§239,  244,  247. 

4  Feltz  v.  Eichele,  62  Mo.  171  ;  but  see  Howe  v.  McKernan,  30  Beav.  547.  The 
above  rules  seem  to  govern  the  proper  mode  of  assessing  the  damages ;  although,  in 
some  of  the  cases,  the  profit  realized  by  the  defendant  from  the  sales  of  the  spurious 
articles  under  the  simulated  trademark,  has  been  held  to  be  the  measure.  Taylor  v. 
Carpenter,  2  Woodb.  <fe  M.  1 ;  Edelsten.  v.  Edelsten,  10  L.  T.  R.  N.  S.  780 ;  Graham  T. 
Plate,  40  Cal.  693. 

6  Taylor  v.  Carpenter,  2  Woodb.  A  M.  1. 

7  Uurnett  v.  Phalon,  12  Abb.  Pr.  186,  s.  c.  21  How.  Pr.  100. 

8  Blofield  v.  Payne  (above);  Taylor  v.  Carpenter  (above). 

•Byrne  v.  Judd,  11  Abb.  Pr.  N.  S.  390;  Burnett  v.  Phalon,  11  Abb.  Pr.  187, 
B.C.  19  How.  Pr.  530;  Burnett  v.  Phalon,  12  Abb.  Pr.  186,  s.  c.  21  liow.  Pr.  100. 
10  Byass  v.  Sullivan,  21  How.  Pr.  60;   s.  P.  Byasa  v.  Smith,  4  Bosw.  679. 

II  Byasa  v.  Sullivan  (above). 

14  P.  620  of  this  voL  ;  Byass  v.  Sullivan  (above) ;  B.  p.  Byass  v.  Smith  (above). 

13  Wolf  v.  Goulard,  16  Abb.  Pr.  836. 

14  Howe  v.  M'Kernan,  80  Beav.  547 ;  Orr  v.  Diaper,  46  L.  J.  Ch.  N.  S.  41 ;  and  see 
Carver  V.  Pinto  Leite,  20  W.  R.  134,  a.  o.  41  L.  J.  Ch.  N.  S.  92,  L.  11.  7  Ch.  90, 
20  L.  T.R.  N.  S.  722;  same  cases,  Codd.  Dig.  L.  of  Tradem.  §§  270,  271,  272,  274. 

48 


754  ACTIONS  FOR  INFRINGEMENT  OF  TRADE  MA.RKS. 

country,  nor  the  fact  that  the  goods  were  manufactured  or  the 
mark  affixed  abroad,  constitute  a  defense.1  It  is  wholly  imma- 
terial, whether  the  simulated  article  is  or  is  not  of  equal  goodness 
or  value  with  the  genuine  article.2  The  want  of  intent  to  de- 
ceive or  defraud  is  not  a  defense,3  nor  is  it  any  answer  that  the 
maker  of  the  spurious  goods,  or  the  jobber  who  sells  Jhem  to  the 
retailers,  informs  those  who  purchase  that  the  article  is  spurious 
or  an  imitation.4  The  weight  of  authority  is  that  acquiescence  by 
the  plaintiff,  in  an  infringement  of  his  mark,  is  no  more  than  a 
revocable  license,  and  that,  to  constitute  a  defense,  the  evidence 
must  be  strong  enough  to  show  either  an  abandonment  or  a  dedi- 
cation to  the  public.  Knowledge  of  the  piratical  use  of  the  mark 
must,  in  all  cases,  be  brought  home  to  the  owner,  where  this  de- 
fense is  taken.5  Proof  of  a  custom  abroad  to  violate  plaintiff's 
trade  mark  is  not  alone  admissible  for  defendant.6  The  fact  that 
plaintiff's  hands  are  not  clean,  and  his  trade  mark  is  used  to  de- 
ceive or  impose  upon  the  public,  or  is  used  upon  a  spurious, 
worthless  or  deleterious  compound,  is  competent,  although  the 
defendants'  conduct  be  also  fraudulent  and  their  goods  spurious, 
and  although  they  deceive  the  public.7 


1  Taylor  v.  Carpenter,  3  Story,  458;  Taylor  v.  Carpenter,  2  Sandf.  Ch.  603,  affi'g 
11  Paige,  292 ;  Taylor  v.  Carpenter,  2  Woodb.  &  M.  1 ;  Collins  Co.  T.  Brown,  3  Kay 
<fe  J.  423,  8.  c.  3  Jurist  N.  S.  929  ;  Collins  Co.  v.  Cowen,  3  Kay  &  J.  4 -28,  s.  c.  3  Jurist, 
929  ;  Collins  Co.  v.  Reeves,  28  L.  J.  Ch.  66 ;  same  cases,  Codd.  Dig.  L.  of  Tradem. 
§§  111-15,458. 

8  Blofield  v.  Payne  1  N.  <fc  M.  353,  s.  c.  4  B.  &  A.  410,  3  L.  J.  N.  S.  68 ;  Taylor  v. 
Carpenter,  11  Paige,  292,  s.  c.  2  Sandf.  Ch.  603. 

3  See  the  cases  cited  under  Intent  (above). 

4  Chappell  v.  Davidson,  2  Kay  &  J.  123,  s.  c.  8  De  G.,  M.  <fe  G.  1 ;    Edelsten  v. 
Edelsten,  9  Jurist  N.  8.  479,  s.  c.  1  De  G.,  J.  <fc  S.  185,  11  W.  R.  328,  1  New. 
300,  7  L.  T.  R.  N.  S.  768;    Shrimpton  v.  Laight  (above);    Clark  v.  Clark,  25  Barb. 
76 ;  Sykes  v.  Sykes,  3  B.  <fe  C.  541,  s.  c.  5  Dowl.  &  R.  292 ;  same  cases,  Codd.  Dig.  L. 
of  Tradem.  §§  255,  256,  280,  349,  356,  360. 

6  This  defense  is  discussed  in  the  following  cases :  Motley  v.  Downman,  3  Myl.  <fe 
Cr.  1,  s.  c.  6  L.  J.  Ch.  N.  S.  808  ;  Taylor  v.  Carpenter,  3  Story,  458 ;  Taylor  v.  Carpen- 
ter, 2  Woodb.  &  M.  1 ;  Flavell  v.  Harrison,  10  Hare,  467,  s.  c.  19  Eng.  L.  <fe  Eq.  15, 
17  Jurist,  368;  McCardel  v.  Peck,  28  How.  Pr.  120;  Gillott  v.  Esterbrook,  47 
Barb.  455,  affi'd  in  48  N.  Y.  374;  Filley  v.  Fassett,  44  Mo.  168 ;  Amoskea^  Mfg.  Co.  v. 
Garner,  55  Barb.  161,  s.  c.  6  Abb.  Pr.  N.  8.  265 ;  but  see  s.  c.  4  Am.  Law  T.  N.  S  176; 
Delaware  and  Hudson  Canal  Co.  v.  Clark,  7  Blatchf.  112;  Hovcnden  v.  Lloyd,  18  W. 
R.  1132;  Isaacson  v.  Thompson,  20  W.  R.  196;  Rodgers  v.  Rodgers,  31  L.  T.  II.  N.  S. 
285,  s.  c.  22  W.  R.  887;  Browne  v.  Freeman,  12  W.  R.  305,  8.  c.  4  New,  476  ;  same 
cases,  Codd.  Dig.  L.  of  Tradem.  §§  65-76. 

•  Taylor  v.  Carpenter.  2  Woodb.  <fe  M.  1. 

1  Pidding  v,  How,  8  Sim.  477 ;  and  see  Codd.  Dig,  L.  of  Tradem.  §§  630-43. 


CHAPTER    LV. 

ACTIONS  FOB  INFRINGEMENTS  OF  PATENTS  AND  COPYRIGHTS. 

t.  PATENTS.  I.  PATENTS — continued. 

1.  Burden  of  proof:  General  evidence        15   ^\e .  ]icense. 

of  validity.  16'  _  defendant's  patent. 

2.  Novelty  of  invention.  17  —  the  statute 

3.  Utility.  18>  _  fraud. 

4.  Patentee  the  original  and  first  in-        i9>  _  description  in  printed  public* 

ventor.  tion 
8.  Specifications :  Construction:    Ex-        20.  —  prior  knowledge  or  use. 

tent  of  claim.  21.  —  public  use  or  sale  before  appli- 

6.  Title.  cation ;  abandonment. 

7.  Extension:  Renewal:  Reissue.              22.  — requisites  of  the  statutory  notice 

8.  State  of  the  art.  or  answer. 

9.  Infringement.  23.  —  plaintiff's  failure  to  mark. 

10.  Witnesses:  Models. 

11.  Admissions  and  declarations.  TT    /-, 

12.  Certified  copies. 

18.  Damages.  24.  Plaintiff's  rights. 

14.  Defenses.    General  issue:    Burden        25.  Infringmehts. 
of  proof. 

I.  PATENTS. 

1.  Burden  of  proof:  General  evidence  of  validity.'] — The 
burden  is  on  plaintiff  to  prove  that  he,  or  the  patentee  under 
whom  he  claims,  was  the  original  inventor,  within  the  statute  j1 
but  the  production  of  the  patent,2  if  in  due  form,  affords  prima 
facie  evidence  of  its  correctness,  which,  in  the  absence  of  oppos- 
ing proof,  is  sufficient.3  A  renewal  or  reissue  adds  to  the  pre- 
sumption of  validity.4  As  will  be  seen  below,  this  presumption 
is  not  conclusive  in  respect  to  any  question  depending  on  the 
patentable  character  of  the  device,  or  the  right  of  the  patentee  as 
inventor.5  Accepting  and  acting  under  a  license  from  the  patentee 


1  Plaintiff  cannot  abandon  at  the  trial  a  part  of  a  combination  claimed  in  the 
pleading,  and  rely  on  the  other  parts.  Vance  v.  Campbell,  1  Black.  427,  429. 

*  Including  the  specification  and  drawings.  Cahoon  v.  Ring,  1  Fish.  Pat.  Cas. 
897,  403,  CLIFFORD,  J.  And  whether  the  patent  be  original  or  reissued.  Sewell  v. 
Collins,  1  Fish.  Pat.  Cas.  289,  291.  And  though  not  containing  any  recitals.  Gear 
v.  Grosvenor,  6  Id.  814. 

8  Philadelphia,  <fcc.  R.  R.  Co.  v.  Stimpson,  14  Pet.  458 ;  Mitchell  v.  Tilghman,  19 
Wall.  287.  If  plaintiff  rests  on  this  presumption,  in  support  of  a  matter  on  which 
the  patent  is  not  impeached,  he  cannot  in  rebuttal  give  other  evidence  in  support  of 
the  same.  But  evidence  on  another  ground,  in  respect  to  which  the  patent  has  been 
impeached,  is  not  to  be  excluded  merely  because  it  bears  indirectly  on  the  former 
ground.  Judson  v.  Cope,  1  Fish.  Pat.  Cas.  615,  619,  620. 

4  Ransom  v.  The  Mayor,  Ac.  of  New  York,  1  Fish.  Pat.  Cas.  252,  259. 

1  Union  Sugar  Refinery  v.  Matthiessen,  2  Fish.  Pat.  Cas.  600,  607.  How  far  it  is 
conclusive  in  respect  to  the  formalities  required  by  the  law,  has  been  the  subject  of 

[755] 


756  ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS. 

estops  from  questioning  the  validity  of  the  patent  as  against  him.1 
The  patentee  s  disclaimer,  in  his  description,  of  what  is  found  in 
another  patent,  is  an  admission  of  the  validity  of  the  latter.2 

2.  Novelty  of  invention.'] — The  patent  is  itself  sufficient 
prima  facie  evidence  of  novelty,8  but  is  not  conclusive.4    Exten- 
sion, without  modification,  enhances  the  presumption  of  novelty.5 
Negative  evidence  by  calling  witnesses  who  might  have  known  of 
the  thing,  had  it  pre-existed,  is  competent ; 6  so  is  the  testimony  of 
experts ,    and  in  case  of  serious  doubt,  proof  of  the  actual  perform- 
ance of  the  thing  itself  is  competent  to  go  to  the  jury  on  the  ques- 
tion of  novelty.      Parol  evidence  is  not  admissible  to  show  at 
what  time  the  patent  was  applied  for.9 

3.  Utility.'] — The  patent  is  sufficient  prima  facie  evidence  of 
utility,10  but  not  conclusive.11     Utility  may  be  shown  by  direct 
testimony  of  witnesses.12    Producing  old  results,  substantially  bet- 
ter, faster  or  cheaper,  is  sufficient  evidence  of  utility.18    For  the 
purpose  of  proving  utility,  it  is  competent  to  show  defendant's 
use  of  the  invention  ; 14  a  former  license 15  or  contract 16  between  the 
plaintiff   and  the  defendant,  allowing  the  latter  to  use  it ;  the 
fact  that  defendant  had  advertised  and  sold  it  as  useful ; 17  or  that 
plaintiff  had  carried  on  a  large  and  long  continued  manufacture;18 
had  received  large  orders,19  and  had  given  licenses.20    The  fact  that 


some  difference  of  opinion,  and  is  not  perhaps  fully  settled,  unless  it  may  be  in  refer- 
ence to  reissues.  "  It  has  come  to  be  regarded  as  the  better  opinion,"  says  CLIFFORD, 
J.,  "  that  all  matters  of  fact  involved  in  the  hearing  of  an  application  to  reissue  a 
patent,  and  in  granting  it,  are  conclusively  settled  by  the  decision  of  the  commis- 
sioner granting  the  application.  Seymour  v.  Osborne,  11  Wall.  616,  545  ;  and  see  p. 
759,  n.  5. 

1  Kinsman  v.  Parkhurst,  18  How.  TJ.  S.  289,  affi'g  1  Blatchf.  488. 

8  "Waterbury  Brass  Co.  v.  N.  Y.  &  Brooklyn  Brass  Co.  3  Fish.  Pat.  Cas.  43,  48. 

3  Corning  v.  Burden,  15  How.  U.  S.  252,  270.     So,  also,  of  the  novelty  of  a  com- 
bination  (Waterbury  Brass  Co.  v.  N.  Y.  &  Brooklyn  Brass  Co.  8  Fish.  Pat.  Cas.  43, 
48) ;  and  that  the  device  required  invention.     Potter  v.  Holland,  1  Fish.  Pat.  Cas. 
382,  387. 

4  Reckendorfer  v.  Faber,  92  U.  S.  (2  Otto),  347. 

5  Whitney  v.  Mo  wry,  3  Fish.  Pat.  Cas.  157,  162.     In  such  case  evidence  of  want 
of  novelty  must  be  strong  and  conclusive.     Id.  161.     Cook  v.  Ernest,  5  Fish.  Pat. 
Cas.  396. 

6  Curt,  on  Pat.  625,  §  473. 

*  See,  for  instance,  Rubber-Coated,  <fec.  Co.  v.  Welling,  97  U.  S.  (7  Otto),  7,  8. 

8  Judson  v.  Cope,  1  Fish.  Pat.  Cas.  615,  624. 

9  Wayne  v.  Winter,  6  McLean,  344. 

10  Corning  v.  Burden,  15  How.  U.  S.  252,  270. 

11  Reckendorfer  v.  Faber,  92  U.  S.  (2  Otto),  347. 

12  Curt,  on  Pat  629,  §  477. 

13  Murray  v.  Clayton,  L.  R.  7  Ch.  App.  570,  s.  o.  3  Moak's  Eng.  615  ;   Wilbur  v, 
Beecher,  2  Blatchf.  132. 

14  Simpson  v.  Mad  River  R.  R.  Co.  6  McLean,  603. 

18  Lee  v.  Blandy,  1  Bond,  361,  s.  c.  2  Fish.  Pat.  Cas.  89. 

"Id. 

11  Stanely  v.  Whipple,  2  McLean,  35,  39. 

18  Whitney  v.  Mowry,  3  Fish.  Pat.  Cas.  157,  162. 

19  Curt,  on  Pat.  629,  §  477. 
"Id. 


ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS.  757 

both  parties  claim  the  right  to  manufacture  is  sufficient  evidence 
of  utility.1 

4.  Patentee  the  original  and  first  inventor.'] — The  patent  is 
sufficient  prima  facie  evidence  that  the  patentee  was  the  original 
and  first  inventor,2  but  is  not  conclusive.**    This  presumption,  in 
the  absence  of  the  application  for  the  patent,  extends  back  onlj 
to  the  date  of  the  patent.4    If  the  applica  ion  is  produced,  the 
presumption  extends  back  to  the  time  when  the  application  was 
filed,  and  no  further.5    To  show  that  the  invention  was  prior  to 
the  filing  of  his  original  application,  he  must  prove,  by  competent 
and  sufficient  evidence,  both  that  he  made  the  invention  at  the 
time  suggested,  and  that  he  reduced  it  to  practice  as  an  operative 
machine."    The  plaintiff  may  prove  his  own  conversations  and 
declarations  made  during  the  progress  of  his  invention,  to  show 
its  date  and  character,  these  being  regarded  as  part  of  the  res 
gestm  of  the  process,  and  an  assertion  of  claim,  which  he  may 
prove  in  his  own  favor.7 

5.  Specifications:  Construction:  Extent  of  claim. ~\ — The  pat- 
ent is  prima  facie?  if  not  conclusive,  evidence  that  the  specifica- 
tion, when  delivered,  was  accompanied  with  such  drawings  and 
written  references  thereto  as  were  required  by  the  statute,9  and 
that  the  specification  contained  a  description,  in  such  full,  clear 
and.  exact  terms  as  will  enable  any  one  skilled  in  the  art  to  which 
it  appertains,  to  put  it  in  practice  from  the  description  contained 
in  the  specification.10  A  certified  copy  of  the  drawings  deposited, 
and  references  thereon,  is,  with  the  patent,  prima  facie  evidence 
of  the  particulars  of  the  invention  patented.11    The  models  and 
drawings  accompanying  the  application  for  a  patent,  and  referred 
to  in  the  specification,  constitute  a  part  of  it,  and  may  be  resorted 
to  to  aid  the  description,  and  to  distinguish  the  thing  patented.18 


1  Middletown  Tool  Co.  v.  Judd,  3  Fish.  Pat.  Cas.  141,  144. 

*  Seymour  v.  Osborne,  11  Wall.  616,  538;  Smith  y.  Goodyear  Dental  Vulcanite 
Company,  93  U.  S.  (3  Otto),  486. 

8  Union  Suffar  Refinery  v.  Matthiessen,  2  Fish.  Pat.  Cas.  600,  607. 

*  Wing  v.  Richardson,  2  Fi?h.  Pat.  Cas.  635,  637. 
6  Id. ;  White  v.  Allen,  2  Fish.  Pat.  Cas.  440,  444. 

6  Johnson  v.  Root,  2  Cliff.  116,  s.  c.  2  Fish.  Pat.  Cas.  291,  297;  Jones  v.  Sewall,  6 
Fish.  Pat.  Cas.  343,  368. 

1  Philadelphia  &  Trenton  R.  R.  Co.  v.  Stimpson,  14  Pet.  448,  462.  Compare  Pen- 
nock  v.  Dialogue,  4  Wash.  C.  Ct.  538;  Evans  v.  Hettich,  3  Wash.  408,  affi'd  in  7 
Wheat.  453. 

8  Winaus  v.  N.  Y.  <fe  Erie  R.  R.  Co.  1  Fish.  Pat.  Cas.  213,  214. 

9  See  pp.  755,  n.  6,  and  769,  n.  5. 

10  Poppenhusen  v.  N.  Y.  Gutta  Percha  Co,  2  Id.  62,  67. 

11  Winans  v.  N.  Y.  <fc  Erie  R.  R.  Co.  1  Id.  213,  214. 

"  1  Abb.  U.  S.  Pr.  809.  Curtis  says,  that  where  the  invention  is  (it  all  compli- 
cated, or  terms  of  art  or  science  are  made  use  of,  requiring  the  exercise  of  technical 
knowledge  to  determine  whether  the  specification  is  sufficient,  it  is  at  least  advisable, 
if  not  necessary,  for  the  plaintiff,  in  opening  his  case,  to  give  some  evidence  that  his 
specification  can  be  applied  by  tlioee  to  whom  the  law  supposes  it  to  be  addressed. 
Slight  evidence  of  sufficiency  is  nil  that  is  necessary  to  be  offered  at  first  in  order  to 
make  it  incumbent  on  the  defendant  to  falsify  the  specification.  Curt,  on  Pat.  630. 


758  ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS. 

Inadequacy  of  specification  cannot  be  proved  unless  alleged.1  The 
correspondence  between  the  office  and  the  patentee  is  sometimes 
referred  to  for  the  purposes  of  construction ; 8  but  neither  such 
correspondence,  nor  the  proceedings  in  the  patent  office,  are  ad- 
missible to  enlarge,  diminish  or  vary  the  language  of  the  claim.3 
The  testimony  of  qualified  witnesses,4  and  inspection  of  the  old 
and  new  machine,  and  the  models,5  are  competent  on  the  question 
of  sufficiency  of  the  specification.  The  state  of  the  art  is  com- 
petent evidence  in  the  construction  of  an  ambiguous  claim.6  But 
evidence  introduced  for  this  purpose  can  have  no  bearing  on  a 
question  not  in  issue.7  The  opinions  of  scientific  witnesses,  that 
a  particular  means  which  might  be  used  to  carry  out  the  general 
directions  of  a  specification,  would  succeed,  are  competent  with- 
out showing  that  that  means  had  actually  been  tried  and  had  suc- 
ceeded.8 The  question  which  should  be  propounded  to  them,  in 
cases  where  there  is  a  recognized  class  of  practical  workmen  who 
would  be  called  upon  to  apply  the  directions  of  the  specification, 
is  whether  a  person  of  that  class,  of  ordinary  skill,  could  practice 
the  invention  from,  those  directions.9 

6.  Title.'] — A  certified  copy  of  an  assignment  is  prima  fade 
evidence  of  the  genuineness  of  the  original,10  without  accounting 
for  the  original,  or  proving  execution."     A  patent  on  its  face, 
issued  to  an  assignee,  is  sufficient  evidence  01  the  assignee's  title. 

7.  Extension:  Renewal:  Reissue.] — Extension,1? renewal,13 and 
reissue,14  are  each  prima  fade  or  conclusive  evidence  of  its  own 
validity.     In  an  action  for  the  infringement  of  a  reissued  patent, 
plaintiff  is  not  bound  to  produce  the  original,15  and  if  he  does  not, 
defendant  must  put  it  in  evidence  if  he  desires  to  object  that  the 
reissue  was  not  for  the  same  invention.16    The  presumption  aris- 


1  Rubber  Co.  v.  Goodyear,  9  Wall.  788,  793. 

2  Pike  v.  Potter,  3  Fish.  Pat.  Cas.  55  ;  Decker  v.  Grote,  6  Id.  143,  150  ;  Pettibone 
v.  Derringer,  4  Wash.  C.  Ct.  215.      Contra,  Westlake  v.  Cartter,  6  Fish,  Pat.  Cas. 
619,  521. 

3  CUFFOBD,  J.,  Goodyear  Dental  Vulcanite  Co.  v.  Gardner,  5  Fish.  Pat.  Caa.  224, 
227. 

4  Washburn  v.  Gould,  8  Story  C.  Ct  122, 138.     As  a  general  rule,  the  proper  wit- 
nesses  to  determine  on  the  sufficiency  of  a  specification  are  practical  workmen  of  or- 
dinary skill  in  the  particular  branch  of  industry  to  which  the  patent  relates,  because 
it  is  to  them  that  the  specification  is  supposed  to  be  addressed.     Curt,  on  Pat.  631. 

6  1  Abb.  U.  S.  Pr.  809. 

6  Rubber-Coated,  <fcc.  Co.  v.  Welling,  97  U.  S.  (7  Otto),  7,  8. 

7  Middletown  Tool  Co.  v.  Judd,  3  Fish.  Pat.  Cas.  141,  144. 

8  Curt,  on  Pat.  642,  §  481. 
»  Id.  636,  §  481. 

10  Lee  v.  Blandy,  1  Bond,  861,  s.  c.  2  Fish.  Pat.  Cas.  89. 

11  Id.  ;  Brooks  v.  Jenkins,  3  McLean,  432,  436. 

12  Clum  v.  Brewer,  2  Curt.  C.  Ct.  506. 

13  Allen  v.  Blunt,  2  Woodb.  <fc  M.  121,  138;  Stimpson  v.  "Westchester  R.  R.  Co.  4 
How.  U.  S.  880. 

14  Seymour  v.  Osborne,  11  Wall.  516,  641. 

15  Id.  646. 
"Id, 


ACTIONS  FOR  INFRINGEMENTS   OF  PATENTS.  759 

ing  from  the  decision  of  the  commissioner  of  patents,  granting 
the  reissue  of  letters  patent,  that  they  are  for  the  same  invention 
which  was  described  in  the  specification  of  the  original  patent,  is 
not  conclusive,  but  can  only  be  overcome  by  clearly  showing, 
from  a  comparison  of  the  original  specification  with  that  of  the 
reissue,  that  the  former  does  not  substantially  describe  \vhat  is 
described  and  claimed  in  the  latter ; *  and  on  this  question  the 
testimony  of  experts  is  competent.2  Nor  is  it  conclusive  on  the 
question  of  fraud.3  It  is  prima  facie  evidence  that  there  had 
been  no  abandonment.4  The  reissue  is  also  prima  facie 5  evi- 
dence that  everything  necessary  to  justify  the  commissioner  in 
granting  the  reissue  had  been  produced  before  the  grant  was 
made.6  A  recital  that  the  necessary  oaths  were  taken  by  the  ap- 
plicants is  conclusive.7  A  recital  that  an  assignment  had  been 
made  to  the  one  receiving  the  reissue,  is  prima  facie  evidence  of 
the  right  of  the  assignee.8 

8.  State  of  the  art."] — Evidence  of  the  state  of  the  art  is  ad- 
missible in  actions  at  law,  under  the  general  issue,  without  a  special 
notice,  and  in  equity  cases,  without  any  averment  in  the  answer 
touching  the  subject.     It  consists  of  proof  of  what  was  old  and 
in  general  use  at  the  time  of  the  alleged  invention.     It  is  received 
for  three  purposes,  and  none  other, — to  show  what  was  then  old  ; 
to  distinguish  what  was  new ;  and  to  aid  the  court  in  the  con- 
struction of  the  patent.9    The  court  can  take  judicial  notice  of  a 
device  in  common  knowledge  arid  use  of  people  throughout  the 
country, — such  as  the  ice-cream  freezer, — and  give  it  the  same 
effect  as  if  it  had  been  alleged  and  proved.10 

9.  Infringement.'] — The  burden  of  proving  infringement  is  on 
the  plaintiff."    The  declarations  and  conduct  of  a  workman  made 
while  manufacturing  the  infringing  article,  in  the  course  of  his 
employment,  ar*e  competent  against  the  employer  to   show  in- 


1  Smith  v.  Goodyear  Dental  Vulcanite  Co.  93  U.  S.  (3  Otto),  486.     If  this  appear 
it  is  void,  for  excess  of  authority.     Russell  v.  Dodge,  93  U.  S.  (3  Otto),  460. 
1  Seymour  v.  Osborne,  1 1  Wall.  516. 

3  Goodyear  v.  Berry,  3  Fish.  Pat.  Cas.  439,  447 ;  Swift  v.  Whisen,  3  Id.  343,  851. 

4  Hoffheins  v.  Brandt,  3  Fish.  Pat.  Cas.  218,  239. 

B  If  not  conclusive.     FIELD,  J.,  in  Russell  v.  Dodge  (above!     See  p.  755,  n.  6. 

6  Hoffheins  v.  Brandt,  3  Fish.  Pat.  Cas.  218,  219.  According  to  Blake  v.  Staf- 
ford, 3  Fish.  Pat.  Cas.  294,  300,  and  House  v.  Young,  Id.  335,  338,  the  reissue  of  a 
patent  is  at  law  conclusive  evidence  of  its  own  validity,  except  as  against  fraud  and 
collusion ;  irregularity  or  excess  of  authority,  apparent  on  the  face  of  the  patent ; 
and  clear  repugnance. 

1  Seymour  v.  Osborne,  11  Wall.  516,  541. 

8  Hofflieins  v.  Brandt,  3  Fish.  Pat.  Cas.  218,  241 ;  Middletown  Tool  Co.  v.  Judd, 
8  Fish.  Pat.  Cas.  141. 

9  Brown  v.  Piper,  91  U.  S.  (1  Otto),  37,  41 ;  Vance  v.  Campbell,  1  Black,  427, 430. 
But  a  prior  pp.tent,  introduced  without  notice,  to  show  the  state  of  the  art,  cannot 
avail  as  evidence  to  anticipate  the  patented  invention.     Am.  Saddle  Co.  v.  Hogg,  5 
Fish.  Pat.  Cas.  353. 

10  Brown  v.  Piper  (above). 

11  Hudson  v.  Draper,  5  Fish.  Pat.  Caa.  256,  259. 


760  ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS. 

fringement.1  Similarity  of  the  articles  produced,  without  other 
evidence  of  similarity  of  process,  is  not  alone  sufficient  evidence 
of  infringement  of  process.2  If  the  alleged  infringement  is  of  a 
combination  only,  and  use  of  a  part  only  is  shown,  evidence  that 
the  other  part  claimed  is  immaterial,  is  not  competent.8 

Testimony  of  experts  is  not  competent  directly  to  the  question 
whether  there  has  been  an  infringement.  On  this  question  their 
testimony  is  admissible  for  two  purposes :  1.  To  point  out  and 
explain  the  points  of  actual  resemblance  or  difference  ;  2.  To 
state,  as  matter  of  opinion,  whether  those  resemblances  or  differ- 
ences are  material ;  whether  they  are  important  or  unimportant ; 
whether  the  changes  introduced  are  merely  the  substitution  of 
one  mechanical  or  chemical  equivalent  for  another,  or  whether 
they  constitute  a  real  change  of  structure  or  composition,  affect- 
ing the  substance  of  the  invention.4 

10.  Witnesses :  Models.'] — The  competency  of  witnesses  de- 
pends on  the  laws  of  the  State  in  which  the  court  is  held.5 

The  testimony  of  experts  is  competent  to  show  the  state  of 
the  art  at  a  given  time,6  to  explain  the  meaning  of  terms  of  art,7 
to  explain  the  drawings,  models  and  machines  exhibited,  and  their 
operation,  and  to  point  out  the  identity,  resemblance  or  difference 
of  the  mechanical  device  involved,8  but  not  to  tell  what  the  patent 
is  for,  nor  whether  it  has  been  violated.9  The  machines  them- 
selves, or  the  models  showing  them,  are  the  most  cogent  kind  of 
evidence.10 

11.  Admissions  and  declarations.] — Admissions  and  declara- 
tions by  the  assignor  of  a  patent  made  after  transfer,  are  not 
competent  against  those  claiming  under  him.11 

12.  Certified  copies.'] — Written  or  printed  copies  of  any  rec- 
ords, books,  papers,  or  drawings  belonging  to  the  Patent  Office, 
and  of  letters  patent,  authenticated  by  the  seal  and  certified  by 
the  commissioner  or  acting*  commissioner,  are  evidence  in  all 
cases  wherein  the  originals  could  be  evidence.12     Copies  of  the 


1  Aiken  v.  Bemis,  3  Woodb.  <fe  M.  348. 

*  Curt,  on  Pat.  414,  §  313.  But  see  Waterbury  Brass  Co.  v.  N.  Y.  <fc  Brooklyn 
Brass  Co.  3  Fis'i.  Pat.  Cas.  43,  50. 

3  Coolidge  v.  McCone,  2  Sawy.  571. 

4  Curt  on  Pat.  648,  §  489. 

6  U.  S.  R.  S.  §  858.  Except  that  there  can  be  no  exclusion  for  color,  and  that 
the  incompetency  to  testify,  against  executors,  <fec.,  is  specially  regulated  by  the 
statute  quoted  at  p.  70  of  this  vol. 

6  Paragraph  8. 

7  See  pp.  484,  485  of  this  vol. 

8  Corning  v.  Burden.   12  How.  U.  S.  252;    Hudson  v.  Draper,  5  Fish.  Pat.  Cas. 


266,  259 ;  and  see  paragraphs  2,  5,  7  and  9. 
9  Waterbury  Brass  Co.  v.  N.  " 


Y.  <t  Brooklyn  Brass  Co.  3  Fish.  Pat.  Cas.  43,  54. 

10  Morris  v.  Barrett,  1  Fish.  Pat.  Cas.  461,  463. 

11  Wilson  v.  Simpson,  9  How.  U.  S.  109 ;  Many  v.  Jagger,  1  Blatchf.  372 ;  Page 
11  of  this  voL 

18  R.  S.  U.  S.  §  892. 


ACTIONS  FOR  INFRINGEMENTS  OP  PATENTS.  761 

specifications  and  drawings  of  foreign  letters  patent,  certified  as 
above,  are  prima,  facie  evidence  of  the  fact  of  the  granting 
thereof,  and  of  the  date  and  contents.1  The  printed  copies  of 
specifications  and  drawings  of  patents,  which  the  commissioner 
of  patents  is  authorized  to  print  for  gratuitous  distribution,  and 
to  deposit  in  the  capitals  of  the  States  and  Territories,  and  in  the 
clerk's  ofiices  of  the  District  Courts,  are,  when  certified  by  him 
and  authenticated  by  the  seal  of  his  office,  competent  evidence  of 
all  matters  therein  contained.2  As  to-  the  genuineness  of  the 
original,  the  certified  copy  is  presumptive  evidence.3  As  to  the 
accuracy  of  the  copy,  it  is  conclusive.4  subject  to  correction  by 
producing  another  certified  copy,5  with  corroborative  proof  of 
its  superior  correctness.  The  court  will  take  judicial  notice  as  to 
who  was  commissioner,6  or  acting  commissioner.7 

13.  Damages."] — A  plaintiff  seeking  to  recover  more  than 
nominal  damages  must  show  his  damages  by  evidence.8     The  law 
does  not  presume  that  sales  made  by  the  infringer  would  other- 
wise have  been  made  by  the  patentee.0 

14.  Defenses:  General  issue:  Burden  of  proof  ^\ — The  enu- 
meration of  defenses  in  the  statute  does  not  exclude  evidence  of 
other  defenses  not  mentioned,  such  as  that  defendant  has  a  prior 
patent ; 10  or  a  license  from  the  patentee ; u  or  that  he  never  did 
the  acts  charged  j12  or  that  there  is  a  substantial  difference  in  their 
devices  ;13  or  that  the  patentee  is  an  alien.14    These  may  be  given 
in  evidence  'at  common  law  under  the  general  issue. 

Plaintiff's  patent,  title,  &c.,  having  been  proved,  the  burden 
is  on  a  defendant  setting  up  insufficient  specification;15  or  prior 
description  in  a  printed  publication;16  or  prior  use  or  sale;17  or 
abandonment,18  to  establish  it  affirmatively. 


1  R.  S.  U.  S.  §  893. 

I  Id.  §  894. 

3  Parker  v.  Haworth,  4  McLean,  370. 
Md. 

5  Brooks  v.  Jenkins,  3  McLean,  432,  434 ;  and  see  Woodworth  v.  Hall,  1  Woodb. 
<fc  M.  248,  260  ;  Emerson  v.  Hogg,  2  Blatchf.  1,  12. 

6  York  &  Maryland  R.  R.  Co.  v.  Winans.  17  How.  U.  S.  30. 
'  Woodworth  v.  Hall,  1  Woodb.  «fe  M.  248,  389. 

8  Phi'.p  v.  Nock,  17  Wall.  460,  462 ;  Blake  v.  Robertson,  94  U.  S.  (4  Otto),  728. 

•  Seymour  v.  McCormick,  16  How.  IT.  S.  480,  rev'g  2  Blatchf.  240.  As  to  the 
measure  of  damages,  see  Burdell  v.  Denig,  92  U.  S.  (2  Otto),  716,  and  cases  cited; 
Birdsall  v.  Coolid^e,  93  Id.  64,  and  cases  cited ;  Cawood  Patent,  94  Id.  695,  and  cases 
cited  ;  Am.  Law  Review,  vol.  xiii.  No.  1,  p.  1. 

10  Gray  v.  James,  Pet.  C.  Ct.  394,  400;  Corning  v.  Burden,  15  How.  U.  S.  252. 

II  Whittemore  v.  Cotter,  1  Gall.  429,  435. 
18  Id. 

13  Evans  v.  Hettich,  7  "Wheat.  453,  469. 

u  Id. ;  Kneass  v.  Schuylkill  Bank,  4  Wash.  C.  Ct.  9  In  case  of  this  defense  the 
bnrden  is  on  defendant  to  show  the  neglect  or  refusal  to  sell  Tatham  v.  Lowber,  2 
Blatchf.  49. 

15  Brooks  v.  Jenkins,  3  McLean,  432,  445,  447. 

l«  Cohn  v.  U.  S.  Corset  Co.  12  Blatchf.  225,  231. 

11  Am.  Hide  &  Leather,  Ac.  Co.  v.  Am.  Tool  <fe  Machine  Co.  5  Fish.  Pat  Cas.  284. 
18  id. ;  Johusen  v.  Fassman,  1  Wood,  138. 


762  ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS. 

15.  —  title  /  license.'] — One  who  relies  on  an  equitable  title 
against  the  legal  title,  has  the  burden  of  alleging  and  proving  it.1 
In  the  absence  of  anything  to  indicate  the  contrary,  a  license  is 
presumed  to  relate  only  to  the  existing  right.2    Admissions  of 
the  owner  to  defendant,  that  a  third  person  granting  defendant  a 
license  had  the  right  to  do  so,  will  estop  the  owner  as  to  subse- 
quent acts  done  in  reliance  on  these  admissions  and  before  notice 
of  withdrawal.3  If  the  only  issues  are  on  the  validity  of  plaintiff's 
patent  and  on  infringement,  the  fact  that  the  defendant  is  the 
licensee  of  the  owner  of  another  patent,  and  that  his  machine  is 
constructed  in  accordance  with  that  patent,  is  irrelevant.4 

16.  —  defendant's  patent.] — If  defendant  has  a  patent  for  the 
alleged  infringement,  he  may  put  it  in  evidence ;  and  it  raises  the 
general  presumptions  in  its  own  favor,  already  stated  in  treat- 
ing of  plaintiff's  evidence;5  but  if  later  than  plaintiff's,  the  pat- 
ent does  not  overcome  the  presumption  of  novelty,  originality 
and  priority,  raised  by  the  earlier.6 

On  a  question  of  interference,  the  subsequent  patent  granted 
by  the  same  official  experts,  is  prima  facie  evidence  that  the  lat- 
ter does  not  interfere  with  the  former.7  A  comparison  of  the 
things  or  machines,8  and  the  testimony  of  experts,9  are  competent ; 
and  the  question  is  one  of  evidence  lor  the  jury.10  Evidence  of 
the  relative  superiority  of  defendant's  invention  is  not  competent 
except  for  the  purpose  of  showing  a  substantial  difference.11 

17.  —  the  statute.1*] — "  In  any  action  for  infringement,  the  de- 
fendant may  plead  the  general  issue,  and,  having  given  notice  in 
writing13  to  the  plaintiff  or  his  attorney,  thirty  days  before,14  may 
prove  on  trial  any  one  or  more  of  the  following  special  matters : 

"  First.  That  for  the  purpose  of  deceiving  the  public,  the  de- 
scription and  specification  filed  by  the  patentee  in  the  Patent 
Office  was  made  to  contain  less  than  the  whole  truth  relative  to 
his  invention  or  discovery,  or  more  than  is  necessary  to  produce 
the  desired  effect ;  or, 


I  Curt,  on  Pat.  625,  §  472 ;  Gibson  T.  Cook,  2  Blatchf.  144,  151.      If  he  relics  on 
plaintiffs  contract  he  must  prove  performance  of  conditions  precedent.     Brooks  v. 
Stolley,  2  McLean,  623. 

*  Gibson  v.  Cook,  2  Blatchf.  144. 

8  Gear  v.  Grosvenor,  6  Fish.  Pat.  Gas.  314,  323. 

4  Blanchard  v.  Putnam,  8  Wall.  420,  426.     Otherwise  on  motion  for  injunction. 

8  Corning  v.  Burden,  15  How.  U.  S.  252,  271. 

6  Goodyear  Dental  Vulc.  Co.  v.  Gardner,  5  Fish.  Pat.  Cas.  224,  229. 

7  Westlake  v.  Cartter,  6  Fish.  Pat.  Cas.  519,  526,  527. 

8  Evans  v.  Hettich,  1  Wheat.  453,  469. 

9  Kischoff  v.  Wethered,  9  Wall.  812,  814,  and  authorities  cited. 
10  Id. 

II  Alden  v.  Dewey,  1  Story  C.  Ct.  336.  s.  c.  3  Law  Rep.  383.     As  to  what  is  a  sub- 
stantial difference,  see  Seymour  v.  Osborne,  11  Wall.  516,  556. 

18  U.  S.  R.  S.  p.  952,  §  4920. 

13  The  burden  is  on  defendant  to  show  that  the  required  notice  was  given.    Blanch- 
ard v.  Putnam,  8  Wall.  420 ;  Phila.  <fc  Trenton  Railroad  Co.  v.  Stimpson,  14  Pet.  448. 

14  In  the  eighth  circuit,  the  first  day  of  term  is  regarded  as  the  day  of  trial  within 
this  rula.     Westlake  v.  Cartter,  6  Fish.  Pat.  Cas.  519,  521. 


ACTIONS  FOR  INFRINGEMENTS   OF  PATENTS.  763 

"Second.  That  he  had  surreptitiously  or  unjustly  obtained 
the  patent  for  that  which  was  in  fact  invented  by  another,  who 
was  using  reasonable  diligence  in  adapting  and  perfecting  the 
same;  or, 

"  Third.  That  it  had  been  patented  or  described  in  some 
printed  publication  prior  to  his  supposed  invention  or  discovery 
thereof;  or, 

"  fourth.  That  he  was  not  the  original  or  first  inventor  or 
discoverer  of  any  material  and  substantial  part  of  the  thing  pat- 
ented ;  or, 

"  Fifth.  That  it  had  been  in  public  use  or  on  sale  in  this  coun- 
try for  more  than  two  years  before  his  application  for  a  patent, 
or  had  been  abandoned  to  the  public. 

"  And  in  notices  as  to  proof  of  previous  invention,  knowledge, 
or  use  of  the  thing  patented,  the  defendant  shall  state  the  names 
of  patentees  and  the  dates  of  their  patents,  and  when  granted, 
and  the  names  and  residences  of  the  persons  alleged  to  have  in- 
vented, or  to  have  had  the  prior  knowledge  of  the  thing  patented, 
and  where  and  by  whom  it  had  been  used ;  and  if  any  one  or 
more  of  the  special  matters  alleged  shall  be  found  for  the  defend- 
ant, judgment  shall  be  rendered  for  him,  with  costs. 

"And  the  like  defenses  may  be  pleaded  in  any  suit  in  equity 
for  relief  against  an  alleged  infringement;  and  proofs  o±  the 
same  may  be  given  upon  like  notice  in  the  answer  of  the  defend- 
ant, and  with  the  like  effect." 

18.  — fraud.~\ — Fraud  in  obtaining  the  patent  is  not  admissi- 
ble in  a  collateral  proceeding,  except  in  a  case  within  U.  S.  R.  S. 
§  4920,1  or  in  equity  in  a  case  within  §  49 18.2 

19.  —  description  in  printed  publication.'] — The  publication 
may  be  proved  orally  or  by  the  production  of  the  book.3    But 
the  work  is  evidence  only  of  the  fact  of  description  contained  in 
it.     Its  statements  are  not  evidence,  for  instance,  of  continuous 
use.4    If  the  publication  describes  the  thing  sufficiently  to  show 
its  structure,  the  existence  of  the  thing  as  described  need  not  be 
proved.5 

20.  — •  prior  knowledge  or  use.]  — The  claim  of  original  inven- 


1  Paragraph  17;  and  see  Rubber  Co.  v.  Goodyear,  9  Wall.  788,  797;  Gear  v.  Gros- 
venor,  6  Fish.  Pat.  Cas.  314,  316. 

8  Rubber  Co.  v.  Goodyear  (above);  Gear  v.  Grosrenor  (above). 

8  Allen  v.  Hunter,  6  McLean,  303,  314.  As  to  the  sufficiency  of  a  description  in 
a  prior  printed  publication  for  this  purpose,  compare  Seymour  v.  Osborne,  1 1  Wall. 
616,  555 ;  Colm  v.  U.  S.  Corset  Co.  93  U.  S.  (3  Otto),  866,  377. 

4  Seymour  v.  McCormick,  19  How.  U.  S.  96.  And  evidence  that  it  was  in  use  at  a 
later  period  will  not  alone  sustain  a  finding  that  it  had  been  in  continuous  use  since 
the  time  of  the  description.  Id.  As  to  what  is  evidence  of  publication,  for  this  purpose, 
see  Plimpton  v.  Malcolmson,  3  Chan.  Div.  631,  8.  C.  18  Monk's  Eng.  649;  Brooks  v. 
Norcross,  2  Fish.  Pat.  Cas.  661.  As  to  notice  of  publication.  Silsby  v.  Foote,  14 
How.  U.  S.  218,  affi'g  1  Blatchf.  445. 

8  Cohn  v.  U.  S.  Corset  Co.  12  Blatchf.  226,  234. 


764  ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS. 

tion  is  not  defeated  by  showing  the  construction  of  the  improve- 
ment before  the  patent  issued ;  but  it  must  be  shown  that  the 
construction  preceded  the  invention  of  the  patentee ;  that  is,  was 
before  the  conception  of  the  improvement  was  applied  in  prac- 
tice.1 Evidence  that  the  thing  existed  is  not  enough,  without 
evidence  to  show  that  it  was  not  of  plaintiffs  invention.8  Evi- 
dence of  prior  existence  by  the  invention  of  some  one  other  than 
the  patentee,  is  enough  without  evidence  that  the  thing  was  ever 
used.8  Prior  knowledge  and  use,  though  by  but  a  single  indi- 
vidual, is  enough.4  A  prior  patent,  describing  the  thing,  is  com- 
petent without  explanation  of  the  cancellation.5  The  omission 
to  produce  the  alleged  prior  device  corroborates  a  denial  of  its 
existence.6  Evidence  that  plaintiff  had  admitted  the  prior  exist- 
ence of  a  device  of  the  same  general  nature  is  not  sufficient,  un- 
less the  admission  excluded  any  field  of  invention  within  which 
his  patent  can  be  sustained.7  Every  reasonable  doubt  should  be 
resolved  against  an  infringer  setting  up  that  the  patentee  was  not 
the  original  and  first  inventor.8  One  witness  is  enough  to  sustain 
a  finding  of  priority.9  The  court  ought  to  be  fully  convinced 
by  a  clear  preponderance  of  evidence.10 

21.  — public  use  or  sale  before  application  ;  abandonment.'] — 
Public  use,  &c.,  if  relied  on  must  be  alleged.  Defendant  must 
show  that  the  invention,  as  finally  perfected,  was  on  sale  and  in 
public  use  more  than  two  years  before  application.11 

Abandonment  if  relied  on  must  be  alleged.  Distinct  evi- 
dence of  it  is  necessary  ;  the  presumption  being  that  an  inventor  of 
a  machine  would  not  give  it  to  the  world.  The  inventor  is  not 
estopped  by  licensing  a  few  persons  to  use  his  invention,  to  ascer 
tain  its  utility,  or  by  any  such  acts  of  peculiar  indulgence  and 
use,  as  may  fairly  consist  with  the  clear  intention  to  hold  the 
privilege ;  ^  but,  if  clear  acts  of  abandonment  are  shown,  the  men- 


1  Brodie  v.  Ophir  Silver  Mining  Co.  5  Sawy.  608,  s.  c.  4  Fish.  Pat  Gas.  137. 
8  Treadwell  v.  Bladen,  4  Wash.  C.  Ct.  703. 

3  Parker  v.  Ferguson,  1  Blatchf.  407.    But  failure  to  prove  general  use  corrobo- 
rates a  denial     Sayles  v.  Chic.  &  N.  W.  R.  R.  Co.  5  Fish.  Pat.  Cns.  584. 

4  Coffin  v.  Ogden,  18  Wall.  124,  and  cases  cited.     So  held  under  Act  of  1838. 
6  Delano  v.  Scott,  Gi!p.  489.. 

6  Chase  v.  Wesson,  6  Fish.  Pat.  Cas.  517 ;  Blake  v.  Eagle  Works  Mfg.  Co.  5  Id.  591. 

7  Turrill  v.  Mich.  So.,  <fcc.  R.  R.  Co.  1  Wall.  491,  501.     Defendant's  circulars,  an- 
nouncing the  device  as  new,  rcay  countervail  oral  testimony  to  earlier  use.     Masury 
Y.  Tiemann,  5  Fish.  Pat.  Cas.  524. 

8  Coffin  v.  Ogden,  18  Wall.  124 ;  Washburn  v.  Gould,  3  Story  C.  Ct  122,  142. 
»  Whitney  v.  Emmett,  Baldw.  303,  310. 

10  Gear  v.  Grosvenor,  6  Fish.  Pat.  Cas.  314. 

11  Agawam  Co.  v.  Jordan,  7  Wall.  583,  609. 

12  1  Abb.  U.  S.  Pr.  324  [537] ;  Hovey  v.  Henry,  3  West.  Law  J.  155 ;  Pitts  v. 
Hall,  2  Blatchf.  229.     Evidence  that  the  inventor  of  a  pavement  frequently  visited 
and  examined  an  experimental  block,  laid  to  test  its  durability,  and  inquired  how 
people  liked  it,  and  stated  that  this  was  his  first  experiment  with  it ;  that  the  place 
where  it  was  laid  was  well  calculated  to  give  it  a  thorough  a.ld  severe  trial ;  and  that 
it  was  laid  at  hia  own  expense,  is,  when  corroborated,  sufficient  to  show  that  it  was 


ACTIONS  FOR  INFRINGEMENTS  OF  PATENTS.  765 

tal  intent  is  not  material.1  Mere  delay,  which  does  not  amount 
to  gross  laches,  is  not  sufficient.8 

Abandonment  of  an  invention  never  patented,  may  be  proved 
by  showing  that  the  inventor,  after  constructing  it  and  before 
reducing  it  to  practice,  broke  it  up  as  something  requiring  more 
thought  and  experiment,  and  laid  the  parts  aside  as  incomplete, 
provided  it  appeafs  that  those  acts  were  done  without  any  defi- 
nite intention  of  resuming  his  experiments  and  of  restoring  the 
machine,  with  a  view  to  apply  for  letters  patent.3  Oral  declara- 
tions by  the  owner  of  a  patent,  of  intention  to  abandon  or  dedi- 
cate to  the  public,  are  competent,  but  not  alone  sufficient  evidence 
of  abandonment.4 

Abandonment,  whether  before5  or  after8  the  issue  of  patent, 
should  be  pleaded  if  relied  on. 

22.  —  requisites  of  the  statutory  notice  or  answer. ~] — Substan- 
tial compliance  with  the  requirement  of  notice  is  enforced.7    A 
notice  that  fairly  puts  an  adversary  in  the  way  that  he  may  ascer- 
tain all  that  is  necessary  to  his  defense  or  answer,  is  enough  to 
admit  the  evidence.8 

23.  — plaintiff's  failure  to  mark.'] — If  failure  to  mark  is  re- 
lied on,  it  must  appear  that  the  plaintiffs  have  made  or  sold  arti- 
cles under  the  patent,  and  have  failed  to  mark  them  as  required. 
This  would  throw  on  the  plaintiffs,  in  an  action  at  law  for  dam- 
ages, the  burden  of  showing  that  before  suit  was  brought,  the  de- 
fendants were  duly  notified  that  they  were  infringing  the  patents, 


intended  as  an  experiment  to  test  its  usefulness  and  durability  merely,  and  not  an 
abandonment  to  public  use.  Elizabeth  v.  Pavement  Co.  97  U.  S.  (7  Otto),  126,  134, 
135. 

1  1  Abb.  U.  S.  Pr.  324  [537].  Testimony  on  tbe  trial,  that  he  never  did  intend  to 
abandon  it,  is  entitled  to  very  little  consideration,  in  view  of  undisputed  acts  which 
were  very  cogent  evidence  of  abandonment.  Bevin  v.  East  Hampton  Bell  Co.  5  Fish. 
Pat.  Cas.  23,  29. 

3  Johnsen  v.  Fassman,  1  Wood,  138. 

3  Seymour  v.  Osborne,  11  Wall.  616,  552;  Parkhurst  v.  Kinsman,  1  Blatchf.  488, 
494;  affirmed  on  "other  points,  18  How.  U.  S.  289. 

*  Pitts  v.  Hall,  2  Blatchf.  229. 

8  Agawam  Co.v.  Jordun  7  Wall.  609;  Union  Paper  Bag  Co.  T.  Newell,!  1  Blatchf.549. 

4  Wyeth  v.  Stone,  1  Story  C.  Ct.  273,  8.  c.  4  Law  Rep.  64. 

7  Thus  evidence  that  the  thing  was  first  invented  by  another  person,  admitted 
under  an  unsuccessful  averment  of  fraud  upon  such  person,  cannot  avail  as  proof  that 
the  complainant  waa  not  the  original  and  first  inventor  under  a  general  denial  of  the* 
allegation  that  he  was,  and  without  notice.  Agawam  Co.  v.  Jordan,  7  Well.  683,  696. 

b  Wise  v.  Allis,  9  Wall.  737,  740;  Smith  v.  Frazer,  6  Fish.  Pat.  Cas.  643,  647. 
As  to  requisite  notice  of  the  names,  <fec.,  of  witnesses,  see  Treadwell  v.  Bladen,  4  Wash. 
C.  Ct.  7"3;  Many  v.  Jagger.  1  Blatchf.  372;  Evans  v.  Kremer,  Pet.  C.  Ct  215; 
Blanchard  v.  Putnam,  8  Wall.  420;  Decker  v.  Grote,  6  Fish.  Pat.  Cas.  143,  14 1; 
Jmlson  v.  Cope,  1  Id.  615,  617;  Union  Paper  Bag  Co.  v.  Newvll,  11  Blatchf.  649; 
Collendor  v.  Griffith,  11  Id.  212 ;  Am.  Hide  <fe  Leather  Spl.  <fe  Dr.  Mach.  Co.  v.  Am. 
Tool  <fe  Mach.  Co.  5  Fish.  Pat.  Cas.  284,  305 ;  Wilton  v.  R.iilroads,  1  Wall.  Jr.  C.  Ct 
192.  As  to  places  of  use,  see  Evans  v.  Eaton,  3  Wheat.  454;  Dixon  v.  Moyer,  4 
Wash.  C.  Ct.  68.  Patents  may  be  given  in  evidence  to  show  the  state  of  the  art, 
without  notice,  but  printed  publications  cannot.  Westlake  v.  Cartter,  6  Fish.  Pat. 
Cas.  619. 


766  ACTIONS  FOR  INFRINGEMENTS  OF  COPYRIGHTS. 

and  that  they  continued,  after  such  notice,  to  make  or  vend  the 
article  patented.1 

II.    COPYBIGHTS. 

.  24.  Plaintiff's  right.'] — The  burden  is  on  plaintiff  to  prove 
both  his  copyright2  and  the  infringement.8  A -duly  authenticated 
certificate  of  the  deposit  of  title,  is  prima  facie  evidence  of  de- 
posit in  due  form.4  Sale  of  a  book  \&  prima  facie  evidence  of  pub- 
lication.5 Assignment  of  the  right  to  copy  a  picture  may  be 
proved  by  oral  evidence.6 

25.  Infringement.'] — A  general  allegation  of  infringement  ad- 
mits evidence  of  the  parts  which  are  piratical.7  Substantial 
identity  or  striking  resemblance  will  sustain  a  presumption  of 
unlawful  copying.8  Occurrence  of  the  same  inaccuracies  in  the 
two  works  is  evidence  of  copying;9  and  if  such  passages  are 
numerous,  they  will  sustain  the  further  inference  that  other  pas- 
sages which  are  the  same  with  passages  in  the  original  book,  were 
likewise  copied.10  Resemblances  striking  enough  to  warrant  the 
inference  of  piracy,  may  cast  the  burden  on  defendant  to  show 
that  they  were  not  the  result  of  copying.11  Defendant's  evidence 
that  the  passages  in  question  are  to  be  found  in  other  works  than 
the  plaintiff's,  is  not  enough,  without  showing  that  he  actually 
got  the  matter  from  the  common  source,12  unless  the  other  works 
were  prior  to  plaintiff's ;  nor  even  then  if  the  method  and  course 
of  selection  in  defendant's  work  resembles  that  of  plaintiffs.  If 
a  clear  infringement  is  shown,  innocent  intent  is  not  material.13 

Where  the  defense  is  delay  or  acquiescence,  the  burden  of 
showing  plaintiffs  knowledge  of  the  piratical  publication  is  on 
defendant.14  So,  where  the  defense  is  that  the  common  law  right 
to  a  dramatic  composition  has  been  lost  by  publication,  the  bur- 
den of  showing  that  the  publication  was  authorized,  is  on  the 
defendants.15 

1  Goodyear  v.  Allyn,  3  Fish.  Pat.  Cas.  374,  376. 

9  Jollie  v.  Jaques,  1  Blatchf.  627  ;  Drone  on  Copyr.  498,  and  cases  cited.  Under 
a  completed  entry.  Keene  v.  Wheatley,  9  Am.  Law  Reg.  45. 

8  Drone  on  Copyr.  478. 

4  Roberts  v.  Meyers,  13  Law  Rep.  N.  S.  396.  As  to  certified  copies,  see  para- 
graph 12. 

6  Raker  v.  Taylor,  2  Blatchf.  82. 

•  Parton  v.  Prang,  3  Cliff.  537,  s.  c.  5  Am.  L.  T.  R.  105. 

7  Drone  on  Copvr.  512,  513. 

8  Id.  400,  and  cases  cited. 

9  Curt,  on  Copyr.  254,  255,  citing  Longman  v.  Winchester,  16  Ves.  269;  see,  also, 
Drone  on  Copyr.  428. 

10  Curt,  on  Copyr.  255. 

11  Drone  on  Copyr.  430. 

12  Id.  431. 

13  2  Abb.  Nat.  Dig.  6  ;  Webb  v.  Powers,  2  Woodb.  <feM.  512,  524 ;  Millett  v.  Snow- 
den,  1  West.  L.  J.  240  ;  Drone  on  Copyr.  401-3.      Mode  of  proof  of  infringement  of 
drama.     Boucicault  v.  Fox,  6  Blatchf.  87. 

14  Drone  on  Copyr.  505 ;  Cfiappell  v.  Sheard,  1  Jur.  N.  S.  997. 
16  Drone  on  Copyr.  578,  579 ;  Boucicault  v.  Wood,  2  Biss.  34. 


CHAPTER  LYI. 


ACTIONS  FOR  VARIOUS  CAUSES  CREATED  OR  DEFINED  BY  STATUTE. 


I.  MECHANIC'S  LIEN. 

1.  Mode  of  proof. 

II.  INDIVIDUAL  LIABILITY  OF  STOCKHOLDERS 

AND    TRUSTEES   OF   CORPORATIONS   AND 
JOINT   STOCK   COMPANIES. 

2.  Incorporation :  Bankruptcy. 

3.  Defendant  a  stockholder. 

4.  —  a  director  or  trustee. 

III.  PENALTIES. 
6.  Statute. 

6.  Municipal  ordinance. 

7.  Violation. 

8.  Excepted  cases. 

9.  Knowledge  of  the  law. 

10.  —  of  facts. 

11.  Knowing  or  intentional  violation. 

12.  Admissions  and  declarations. 

13.  Character. 

14.  Cogency  of  proof. 

15.  Obstructing  highways. 

16.  Selling  liquors. 

IV.  ACTIONS  (UNDER  CIVIL  DAMAGE  LAW) 

FOR  CAUSING  INTOXICATION. 

17.  Ground  of  action. 

18.  Order  of  proof. 

19.  Relation  of  plaintiff  to  the  drunk- 

ard. 

20.  Sale  or  gift  of  liquor. 

21.  Liability  of  salesman. 


IV.  ACTIONS  FOR  CAUSING  INTOXICATIOB— 

continued. 

22.  —  of  principal. 

23.  Connecting  defendant  with  sales- 

man. 

24.  —  with  business. 

25.  Connecting  sale  with  intoxication. 

26.  Character  of  liquor. 

27.  Knowledge  and  intent  of  seller. 

28.  Fact  of  intoxication. 

29.  Liability  of  owner  or  lessor. 
80.  Contributory  negligence. 
31.  Actual  damages. 

82.  —  to  the  person. 

83.  —  to  property. 

84.  —  to  means  of  support. 

85.  Exemplary  damages. 
36.  Defenses; — limitations. 
87.  —  sale  for  medicine. 

38.  —  other  sellers  contributing  to  In- 

jury.- 

39.  —  plaintiff's  connivance  or  negli- 

gence. 

40.  — former  adjudication:  satisfaction. 

V.  PROCEEDINGS  IN  REM  FOR  FORFEITURE. 

41.  Burden  of  proof. 

42.  Knowledge  and  notice. 

43.  Admissions  and  declarations. 

44.  Cogency  of  proof. 

VL  ACTIONS  ON  RECOGNIZANCES. 

45.  Mode  of  proof. 


I.  MECHANIC'S  LIEN. 


1.  Mode  of  proof  ^\ — The  essential  facts,  and  the  burden  of 
proof,  depend  upon  the  statute.1  The  notice  of  lien  is  not  proved 
by  the  county  clerk's  certified  copy  ;2  but  his  certificate  proves 
the  filing.  Mortgagees  and  others  acquiring  interest  in  property 
against  which  the  lien  is  claimed,  have  a  right  to  call  for  strict 
proof  of  all  that  is  essential  to  the  creation  of  the  lien ;  and  this 


1  For  the  mode  of  proving  a  right  of  action  for  goods  or  services,  see  Chapters 
XVI,  XIX. 

*  Unless  the  statute  so  provides.  Sampson  v.  Buffalo,  N.  Y.  &  Phila.  R.  R.  Co.  4 
Supm.  Ct.  (T.  &  C.)  600. 

[707] 


768      ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

includes  proof  of  the  commencement  of  the  work,  of  its  character 
and  of  its  completion.1 

II.  INDIVIDUAL  LIABILITY  OF  STOCKHOLDERS  AND  TRUSTEES  OF  CORPO- 
RATIONS AND  JOINT  STOCK  COMPANIES. 

2.  Incorporation  :  Bankruptcy^ — The  incorporation  may  he 
proved  in  the  manner  stated  in  Chapter  III.     Proof  of  a  certifi- 
cate of  organization  in  which  defendant  joined,  duly  verified  and 
filed,  and  of  user  under  it  by  acts  in  which  he  joined,  is  conclusive 
evidence  of  incorporation  as  against  the  defendant.2    A  general 
averment  of  dissolution  admits  evidence  of  the  grounds  of  dis- 
solution.8 

Proof  of  'bankruptcy r,  or  the  appointment  of  and  transfer  of 
all  assets  to  a  receiver,  and  inadequacy  of  assets,4  dispenses  with 
A  statutory  requirement  of  prior  action  against  the  company.5 

3.  Defendant  a  stockholder.] — A  charter  duly  proved  is  prima 
facie  evidence  of  the  membership  of  one  named  therein  as  a  mem- 
ber at  the  commencement  of  the  corporate  existence.     The  stock 
subscription  paper,6  shown  to  have  been  signed  by  defendant,7  or 
the  book  containing  a  list  of  stockholders,  kept  under  the  statute,8 
is  competent.     In  the  absence  of  such  a  statute,  the  corporation 
books  are  not,  alone,  competent   evidence  against  a  stranger  to 
prove  him  a  stockholder.9     Active  participation  as  a  stockholder 
in  corporate  meetings  and  transactions  is  presumptive  evidence 
that  lie  was  a  stockholder  at  that  time.10  Evidence  that  defendant 
was  a  trustee  is  presumptive  evidence  that  he  was  a  stockholder.11 
One  who  has  purchased  stock,  and  suffered  his  name  to  appear 
on  the  books  of  the  association,  is  estopped  from  impeaching  his 
own  title.12    Defendant  may  show  an  apparently  absolute  assign- 
ment of  stock  to  have  been  made  and  taken  as  collateral  only.13 

The  burden  is  on  plaintiff  to  show  that  the  debt  was  contracted 
by  the  corporation.14  Judgment  against  the  company  is  not  even 
prima  facie  evidence  of  the  indebtedness  as  against  the  stock- 


1  Davia  v.  Alvord,  94  U.  S.  (4  Otto),  645,  647. 
s  Priest  v.  Essex  Hat  Mf<r.  Co.  115  Mass.  380. 
8  Thomps.  Liab.  of  St.  379,  §  312. 
4  Id.  388,  §§  321-3. 

4  Id.  384,  §  318.     For  the  mode  of  proving  exhaustion  of  remedy,  see  p.  736  of 
this  vol. 

8  Partridge  v.  Badger,  25  Barb.  146,  171. 

1  Corse  v.  Sanfonl^  14  Iowa,  235,  239. 

8  Johnson  v.  Underbill,  52  N.  Y.  203  ;  Shellington  v.  Howland,  53  N.  Y.  371. 

8  Thomps.  Liab.  of  St.  430,  8  370. 

10  Id.  197,  §  165. 

11  Butterfield  v.  Radde,  38  Super.  Ct.  (J.  <fc  S.)  44,  s.  o.  47  How.  Pr.  535. 
1S  Thomps.  Liab.  of  St.  194,  §  162  ;  202,  §  171. 

13  McMahon  v.  Macy,  51  N.  Y.  155. 

14  Dabney  v.  Stevens,  10  Abb.  Pr.  N.  S.  39;  Strong  v.  Wheaton,  38  Barb.  616. 


INDIVIDUAL  LIABILITY  OF  STOCKHOLDERS,  Ac.  769 

holder.1  For  this  purpose,  the  transactions  between  the  corpora- 
tion and  their  creditor  are  competent ; 2  and  the  usual  presump- 
tion supporting  the  validity  of  corporate  contracts  applies.3 

To  recover  against  the  members  of  a  joint  stock  company, 
after  recovery  and  execution  unsatisfied  against  the  president  or 
treasurer  under  the  statute,4  plaintiff  must  prove  his  original  cause 
of  action,5  and  also  the  judgment;  and  the  issue  and  return  of 
execution  unsatisfied.6  Those  proceedings,  although  against  a 
person  named  as  president  or  treasurer  under  the  statute,  are 
competent,  if  it  appears  from  the  whole  record  that  it  was  the 
association  who  was  the  party.7  The  judgment  against  the  asso- 
ciation does  not  preclude  the  defendants  from  contesting  the 
original  liability.8 

4.  defendant  a  director  or  trustee^ — Production  of  the  cer- 
tificate or  incorporation,  duly  filed  and  certified,  naming  defend- 
ants as  trustees,  with  evidence  that  the  company  acted  under  the 
corporate  name ;  that  they  became  indebted  to  plaintiff ;  and  that 
no  statement  was  filed  as  required  by  the  act,  makes  out  a  priina 
facie  case.9  It  is  enough  to  show  that  defendant  was  a  trustee 
de  facto,  under  color  of  title  to  an  otherwise  vacant  office.10 
Election  to  office  is  not  enough,  even  though  it  be  re-election, 
after  having  acted  as  director  in  the  previous  year.  Assent  must 
be  shown  by  some  positive  act.11  To  charge  with  holding  over, 
evidence  of  an  act  as  director,  after  expiration  of  term,  is  neces- 
sary.12 [Resignation  may  be  proved  by  parol,  without  proof  of 


1  This  is  the  New  York  rule.  McMahon  v.  Macy,  51  N.  Y.  155,  questioned  in 
Thomps.  Liab.  of  St.  394,  §  330.  Contra,  Thayer  v.  New  England  Lithog.  Co.  1 08  Mass. 
523.  In  those  jurisdictions  where  the  judgment  is  competent,  extrinsic  evidence  is 
admissible,  and  may  be  necessary,  to  ascertain  whether  the  cause  of  action  was  one 
for  which  a  stockholder  is  liable. 

*  Partridge  v.  Badger,  25  Barb.  146.     As  to  the  corporate  books,  see  p.  46  of  this 
vol.,  and  Hager  v.  Cleveland,  36  Md.  476. 

3  Belmont  v.  Coleman,  21  N.  Y.  96,  affi'g  1  Bosw.  188.     See  p.  33  of  this  vol. 

*  N.  Y.  L.  1849,  c.  258,  §§  1  and  4  as  amended  by  L.  1863,  c.  153. 

4  Witherhead  v.  Allen.  4  Abb.  Ct.  App.  Dec.  628,  reVg  28  Barb.  661.     As  to  the 
mode  of  proof,  see  Chapter  II  of  this  vol.     A  different  ground  of  liability  from  that 
alleged  is  a  fatal  variance.     Allen  v.  Clark,  65  Barb.  563,  567. 

8  As  to  execution,  see  p.  736  of  this  vol. 

1  National  Bk.  of  Schuylerville  v.  Lasher,  1  Supm.  Ct.  (T.  A  C.)  313. 

8  Allen  v.  Clark  (above). 

9  Squires  v.  Brown,  22  How.  Pr.  35,  42. 

10  As  where,  after  the  term  expired,  there  was  no  new  election,  and  be  did  some 
act  as  trustee  thereafter.     Deming  v.  Puleston,  55  N.  Y.  655,  affi'g  35  Super.  Ct.  ( J.  A 
S.)  309;  Reed  v.  Keese,  60  N.  Y.  616,  affi'g  37  Super.  Ct.  (J.  <fe  S.)  269.     Otherwise, 
where  there  was  legally  no  vacancy.     Craw  v.  Easterly,  54  N.  Y.  679,  affi'g  4  Lans. 
513. 

11  Osborne,  Ac.  Co.  v.  Croome,   14  Hun,  164.     Contra,  Nimmons  v.  Tappan,  2 
Sweeny,  652. 

14  Reed  v.  Keese,  87  Super.  Ct.  (5  J.  A  S.)  269,  affi'd  in  60  N.  Y.  616;  Deming  v. 
Puleston,  35  Super.  Ct.  (J.  A  S.)  309,  affi'd  in  65  N.  Y.  655.  Evidence  that  defendant 
was  present  and  took  part  at  a  meeting  of  the  board,  is  not  enough,  unless  it  appear 
that  he  did  so  as  a  director.  Deming  v.  Puleston,  83  Super.  Ct.  (J.  A  S.)  231,  238; 
85  Id.  309 ;  65  N.  Y.  655. 

49 


7/TO  ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

i 

acceptance,  unless  the  statute  or  by-laws  are  to  the  contrary.1  On 
the  question  whether  the  defendant  was  a  director,  testimony  of 
witnesses  though  without  record,  or  the  record,  or  the  inspector's 
certificate  made  at  the  time  of  election,  are  each  competent.2  A 
judgment  against  the  corporation  is  not  competent.8 

Neglect  to  tile  report  in  one  year  does  not  raise  presumption 
of  neglect  in  subsequent  years.4 

III.  PENALTIES. 

5.  Statute."] — The  officially  printed  volume  is  presumptively 
correct ;  the  original  act,  conclusive.6 

6.  Municipal  ordinance.'] — Corporation  ordinances  must  be 
pleaded  to  be  admissible,6  and  must  be  proved.7    At  common 
law,  the  originals,  or  the  books  in  which  they  are  registered,  are 
the  primary  evidence.8    By  the  New  York  statute,9  "  any  act,  or- 
dinance, resolution,  by-law,  rule  or  proceeding  of  the  common 
council  of  a  city,  or  of  the  board  of  trustees  of  an  incorporated 
village,  or  of  a  board  of  supervisors  of  any  county  within  this 
State,  and  any  recital  of  occurrences  taking  place  at  the  sessions 
of  any  thereof,  may  be  read  in  evidence  on  any  trial,  examination 
or  proceeding,  whether   civil  or  criminal,  either  from  a  copy 
thereof  certified  by  the  clerk  of  the  city,  village,  common  council 
or  board  of  supervisors,  or  from  a  volume  printed  by  authority  of 
the  common  council  of  the  city,  or  board  of  supervisors  of  the 
county,  or  of  the  board  of  trustees  of  any  incorporated  village." 
Copies  of  papers  duly  filed,  and  of  records  in  the  office  of  the 
clerk  of  a  board  of  supervisors,  certified  by  such  clerk,  with  the 


1  Chandler  v.  Hoag,  2  Hun,  613,  s.  c.  5  Supm.  Ct.  (T.'  <fc  C.)  197,  affi'd  in  12  Alb.  L. 
J.  351.     Express  resignation  and  abandonment  of  incorporation  rebuts  the  presump- 
tion of  holding  over,  which  perhaps  might  arise  from  failure  to  hold  new  election. 
Wade  v.  Baker,  14  Hun,  616. 

2  Partridge  v.  Badger,  25  Barb.  146,  172. 

*  Miller  v.  White,  50  N.  Y.  137,  rev'g  59  Barb.  434,  s.  c.  10  Abb.  Pr.  N.  S.  385 ; 
67  Barb.  504 ;  8  Abb.  Pr.  N.  S.  46.  Except,  perhaps,  where  it  is  made  so  by  connect- 
ing defendant  personally  with  its  recovery. 

4  Whitney  Arms  Co.  v.  Barlow,  41  Super.  Ct.  (J.  &  S.)  220,  affi'd  in  68  N.  Y.  34. 

8  Purdy  v.  Com.  of  Highways,  54  N.  Y.  276 ;  p.  21  of  this  vol.;  State  v.  Swift, 
10  Nev.  176,  s.  o.  21  Am.  R.  721.  Contra,  that  it  is  conclusive  only  against  oral  evi- 
dence, Berry  v.  Baltimore  A  Drum  Point  R.  R.  Co.  41  Md.  446,  s.  o.  20  Am.  R.  69. 
See  the  conflicting  cases  on  this  question  in  3  Abb.  New  Cas.  372,  note.  The  date,  if 
stated,  is  conclusive  (Lapeyre  v.  United  States,  17  Wall.  191),  and  if  not,  may  be 
proved  by  extrinsic  evidence.  Gardner  v.  The  Collector,  6  Wall.  499,  511. 

'  Barker  v.  Mayor,  <fec.  of  N.  Y.  17  Wend.  199.  But  the  existence  of  the  condi- 
tions under  which  the  corporation  were  authorized  by  statute  to  pass  the  ordinance 
need  not  be.  Stuyvesant  v.  Mayor,  <frc.  of  N.  Y.  7  Cow.  588 ;  Rector,  <fcc.  of  Trinity 
V.  Higgins,  4  Robt.  J,  and  cases  cited. 

1  Except  that  a  court  of  the  same  municipality  may  judiciall v  notice  them.  1  Whart. 
Ev.  269,  §  293. 

8  1  Dill.  M.  C.  443,  §  355.     And  these,  together  with  proof  of  the  mayor's  ap- 
proval or  other  complete  adoption,  are  sufficient,  even  in  an  action  between  third 
persons.     Kennedy  v.  Newman,  1  Sandf.  187. 

9  N,  Y.  L.  1878,  p.  273,  c.  219;  amended  L.  1879,  p.  290,  c.  211,  §  1. 


PENALTIES.  771 

seal  of  the  office,  are  evidence  like  the  originals.1  Promulgation 
of  the  ordinance  need  not  be  proved,  unless  specially  required.3 
Posting  of  copies,  when  required,  may  be  proved  by  parol,  with- 
out producing  the  copies.3  In  the  absence  of  anything  to  indi- 
cate the  contrary,  the  court  may  presume  an  ordinance  to  have 
been  regularly  passed.4  If  the  plaintiff's  authority  to  sue  depends 
upon  the  making  or  filing  of  a  resolution  or  other  document  of  a 
municipal  body,  the  document  itself,  or  a  certified  copy,  with 
proof  of  execution  and  filing,  is  the  primary  evidence.5  In 
prosecutions  to  enforce  ordinances,  the  ordinary  rules  ^)f  evidence 
apply,  except  so  far  as  specially  modified  by  statute ;  and  it  is  not 
competent  for  a  municipal  corporation,  without  express  authority, 
to  make  or  alter  the  rules  of  evidence  or  of  law.6 

7.  Violation.'] — Plaintiff  must  show  facts  bringing  the  case 
clearly  within  the  terms  of  the  statute  or  ordinance,7  fairly  and 
reasonably  construed.8    The  conditions  upon  which  the  penalty 
attaches  must  be  affirmatively  shown  to  have  existed.9    If  the 
penalty  is  imposed  for  conduct  or  neglect  in  a  particular  capacity, 
— for  instance,  on  a  toll  gatherer  exacting  tolls  wrongfully, — evi- 
dence that  defendant  was  acting  in  that  capacity  is  prima  facie 
sufficient.10     Under  an  allegation  that  defendant  did  the  act,  evi- 
dence that  he  caused  or  procured  it  to  be  done  is  competent.11 

8.  Excepted  cases.'] — Where  the  language  of  the   enacting 
clause  prohibits  the  act,  except  under  specified  circumstances,  the 
burden  is  on  plaintiff  to  negative  those  circumstances,12  unless 
they  are  peculiarly  within  defendant's  knowledge.13    Thus,  the 
burden  of  showing  that  he  had  a  license  is  on  defendant.14   Where 
the  excepted  cases  are  not  actually  incorporated  into  the  enacting 


I  N.  Y.  L.  1855,  p.  384,  c.  249,  §  2. 

*  City  Council  v.  Chur,  2  Bailey  (S.  C.),  164. 
8  Teft  v.  Size,  6  Gilm.  (111.)  432. 

4  Buffalo  Railroad  v.  Buffalo,  5  Hill,  209,  211.  Contra,  Bee  Eldred  v.  Lehay,  81 
Wis.  546. 

*  Thompson  v.  Smith,  2  Den.  177. 

*  1  Dill.  M.  C.  440,  §  350. 

*  In  illustration  of  this  principal,  see  Allen  v.  Stevens,  29  TS.  J.  L.  (5  Dutch.)  509; 
Mayor,  <fec.  of  N.  Y.  v.  Walker,  4  E.  D.  Smith,  258. 

'8  Verona  Cent'l  Cheese  Factory  v.  Murtaugh,  50  N.  Y.  314,  317,  rev'g  4  Lans.  17. 

*  Commissioners  of  Pilots  v.  Vanderbilt,  31  N.  Y.  265. 

10  Trowbriclge  v.  Baker,  1  Cow.  251,  8.  P.  People  v.  Gilbert,  Anth.  N.  P.  261.  So 
evidence  that  defendant  was-  master  of  a  boat  during  the  season,  and  on  the  day  in 
question,  is  sufficient  to  go  to  the  jury,  in  the  absence  of  evidence  to  the  contrary,  to 
charge  him  with  a  penalty  for  racing.  People  v.  Roe,  1  Hill,  470. 

II  Gaffney  v.  Colvill,  6  Hill,  567,  576,  680. 

"  Copley  v.  Burton,  L.  R.  5  C.  P.  489,  explained  in  Roberts  v.  Humphreys,  L.  R. 
8  Q.  B.  483,  8.  c.  7  Moak's  Eng.  93. 

13  Compare  Blann  v.  Beal,  6  Ala.  857;  Medlock  v.  Brown, '4  Mo.  379  ;  Conyera  v. 
The  State,  50  Geo.  103,  8.  o.  15  Am.  R.  686.    As  to  the  effect  of  evidence  that  the  de- 
fendant held  himself  out  generally,  without  regard  to  the  exception,  see  The  Suns- 
wick,  9  Ben.  1 1 2. 

14  Potter  v.  Deyo,  19  Wend.  361 ;    Mayor,  Ac.  of  N.  Y.  V.  Mason,  4  E.  D.  Smith, 
142,  B.  c.  I  Abb.  Pr.  344. 


772  ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

clause  giving  the  action,  but  in  a  proviso  or  subsequent  exemp- 
tion, whether  in  the  same *  or  subsequent  sections,  the  burden  is 
on  defendant  to  bring  himself  within  the  exception. 

9.  Knowledge  of  the  law.'] — Knowledge  of  the  law  is  not  pre- 
sumed as  a  matter  of  fact ; 2  but  ignorance  of  it  is  irrelevant/ 

10.  Knowledge  of  facts.'] — Whether  it  is  necessary  to  prove 
that  defendant  knew  the  facts  relevant  to  liability,  depends  on 
the  language  of  the  statute,4  in  connection  with  its  general  intent, 
and  the  nature  of  the  fact.5 

If  a  notice  be  required  by  the  statute  as  preliminary  to  a  pen- 
alty, it  must  be  strictly  proved  ;  but  if  it  is  not  the  foundation  of 
the  action,  and  merely  relates  to  some  collateral  fact,  its  contents 
may  be  proven  by  parol.8 

11.  Snowing  or  intentional  violation.'] — If  the  statute  forbids 
the  doing  of  the  act  knowingly,  or  with  intent,  or  for  the  pur- 
pose, &c.,  or  the  like,  there  must  be  some  evidence  tending  to 
show  knowledge  or  intent.7    Where  the  penalty  is  in  the  nature 
of  an  indemnity  for  a  fraud,  knowledge  of  one  partner,  or  an 
agent  or  servant,  may  be  proved  against  the  other,  or  the  princi- 
pal,8 if  he  retains  the  fruit  of  the  transaction.9    If  there  is  evi- 
dence of  habitual  or  repeated  acts,  knowledge  in  the  particular 
one  is  not  essential.10    It  is  sufficient  to  prove  knowledge  that  his 
servants  or  agents  violated  the  act ;  and  a  general  authority  to  do 
acts  in  violation  is  enough,  but  not  conclusive.11  The  person  who 


1  Teel  v.  Fonda,  4  Johns.  304  ;  People  ex  rel.  Cook  v.  Board  of  Police,  16  Abb.  Pr. 
837 ;  and  the  rule  is  the  same,  though  the  enacting  clause  contain  a  reference  to  the 
subsequent  exception.  Hart  v.  Cleis,  8  Johns.  41. 

9  Black  v.  Ward,  27  Mich.  191,  s.  c.  16  Am.  B.  162. 

3  Hyde  v.  Melvin,  11  Johns.  521.     Misapprehension  of  it  is  equally  irrelevant. 
Sherman  v.  Spencer,  1  N.  Y.  Leg.  Obs.  172.     Hence  even  the  opinion  of  a  public 
officer,  expressed  at  the  time  of  the  act,  that  it  was  not  a  violation,  is  incompetent. 
Fire  Department  v.  Buhler,  85  N.  Y.  177,  s..c.  33  How.  Pr.  373,  rev'g  1  Daly,  391. 
Sd  of  the  command  of  a  superior  officer.     Hyde  v.  Melvin,  11  Johns.  521. 

4  Verona  Cent'l  Cheese  Fact.  v.  Murtaugh,  50  N.  Y.  314;  Bayard  v.  Smith,  IV 
Wend.  88,  90;  Gaffney  v..  Colvill,  6  Hill,  567,  576  ;  Nichols  v.  Hall,  L.  R.  8  C.  P. 
322,  8.  o.  5  Moak's  Eng.  300;    Fitzpatrick  v.  Kelly,  L.  R.  8  Q.  B.  337,  s.  c.  6  Moak'a 
Eng.  94 ;  Roberta  v.  Humphreys,  L.  R.  8  Q.  B.  483,  s.  o.  7  Moak's  Eng.  93. 

6  Hassenfrats  v.  Kelly,  13  Johns.  466,  468;  Etheridge  v.  Cromwell,  8  Wend.  629. 

6  McFadden  v.  Kingsbury,  11  Wend.  667.    Thus,  in  an  action  for  disobeying  a 
subpoena,  the  writ,  if  in  plaintiff's  possession,  is  the  primary  evidence,  and  cannot 
be  proved  by  defendant's  admissions.     Hasbrouck  v.  Baker,  10  Johns.  248.    But  hia 
non  attendance  may  be  proved  by  paroL     Cogswell  v.  Meech,  12  Wend.  147. 

If  the  law  requires  a  notice  the  terms  of  which  must  be  judicially  fixed  by  a 
board  of  officers,  evidence  of  a  notice  by  their  president  merely,  is  not  enough,  though 
they  referred  it  to  him  to  give  notice.  Comm'rs  of  Pilots  v.  Vanderbilt,  31  N.  Y. 
266,  affi'g  2  Robt.  367. 

7  Verona  Cent'l  Cheese  Fact.  v.  Murtaugh  (below) ;  and  see  Davies  v.  Harvey,  L. 
B.  9  Q.  B.  433,  8.  c.  9  Moak,  367.     Compare  Chesley  v.  Brown,  11  Me.  (2  Fairf.)  143. 

8  Davies  v.  Harvey  (above). 

•Stockwellv.  U.  S.  13  Wall.  631.  In  other  penal  actions  such  imputation  of 
knowledge  is  not  generally  allowable.  Id.  563. 

10  Verona  Cent'l  Cheese  Fact.  v.  Murtaugh,  50  N.  Y.  3*4. 816,  318,  reVg  4  Lans.  11. 

11  Id.,  and  cases  cited. 


PENALTIES.  773 

did  the  act  may,  as  a  witness,  testify  to  his  intent.1  lie  may  be 
asked  whether  he  did  the  act  in  good  faith,2  or  whether  he  sup- 
posed he  was  violating  the  statute.8 

Other  similar  violations  he  committed  during  the  same  period, 
especially  if  in  the  same  business  and  premises,  are  competent,  and, 
in  the  absence  of  other  evidence,  are  prima  facie  evidence  of  in- 
tent.4 Acts  in  a  different  season  and  circumstances,  not  affording 
reasonable  presumption  of  similar  result,  are  not  competent.5 

12.  Admissions  and  declarations.] — The  admissions  or  decla- 
rations of  the  defendant's  agent  or  servant  are  not  competent 
against  defendant.6    In  the  case  of  several  defendants,  the  admis- 
sions and  declarations  of  one  are  competent  against  himself,  but 
not  necessarily  against  the  other.7    Where  several  offenses  are 
charged,  a  general  admission  of  having  committed  offenses,  not 
showing  what  offense,  and  to  what  penalty  the  defendant  intends 
the  admission  to  apply,  is  not  enough.8 

13.  Character.'} — Character  is  not  in  issue.9 

14.  Cogency  of  proof.] — A  private  action  for  penalty  does  not 
require  proof  beyond  reasonable  doubt;10  otherwise  of  an  action 
by  the  government  for  a  penalty.11 

15.  Obstructing  highways] — To  entitle  plaintiff  to  a  verdict, 
it  is  sufficient  to  prove  a  highway  de  facto,  by  evidence  that  the 
obstruction  complained  of  was  placed  in  a  road  which  had  been 
traveled  by  the  public  as  a  highway  more  than  six  years  before 
the  time  of  the  trial,  and  more  than  a  year  before  it  was  fenced 
up  ;ia  and  that,  while  it  was  being  so  used,  it  was  obstructed  by 
defendant.     This  entitles  him  to  a  verdict.13 

Under  plea  of  title,  defendant  may  give  in  evidence  his 
title  deeds,  or  show  himself  in  possession  of  the  adjacent  land, 
and  then  rest.14 

The  burden  is  then  thrown  on  plaintiff  to  prove  that  the  al- 
leged highway  has  been  duly  laid  out  by  the  commissioner,  or 


I  Supt.  of  Cortland  v.  Supt.  of  Herkimer,  44  N.  Y.  22. 
8  Id. ;  see,  also,  pp.  618,  620  of  this  vol. 

*  Stearns  v.  Ingraham,  1  Supra.  Ct.  (T.  <fc  C.)  218  ;  see,  also,  Chapter  LTX. 
4  Lilienthal'3  Tobacco  v.  U.  8.  97  U.  S.  (7  Otto),  237,  267. 

6  Stearns  v.  Ingraham  (above). 

6  Clay  v.  Swett,  4  Bibb  (Ky.),  255.     Unless  part  of  the  ret  gestce,  or  made  within 
the  scope  of  authority.     See  p.  44  of  this  vol. 

7  Compare  rules  stated  on  pp.  11  and  711  of  this  vol.,  and  Aiken  v.  Peck,  22  Vt. 
255  ;  Nichols  v.  Hotchkiss,  2  Day  (Conn.),  121. 

8  Mayor,  <tc.  of  N.  Y.  v.  Walker.  4  E.  D.  Smith,  258. 

•  1  \Vhart.  ET.  63,  §  47,  citing  Att'y-Gen.  v.  Bowmnn,  2  B.  <t  P.  53,  n.  a. 

10  Hitchcock  v.  Hunger,  15  N.  H.  97.     Contra,  White  v.  Comstock,  6  Vt.  405. 

11  Chaffee  v.  U.  S.  18  Wall.  516,  545.    Compare  paragraph  44,  and  p.  495  of  thisvoL 

II  Little  v.  Denn,  34  N.  Y.  452.     But  in  applying  this  rule,  the  statutes  in  force  at 
the  time  should  be  consulted.     See,  also,  as  to  dedication,  cases  collected  in  2  Abb, 
New  Cas.  400,  note. 

13  Little  v.  Denn  (above). 
"Id. 


774:      ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

that  it  is  a  highway  by  dedication  or  twenty  years'  use.1  If  he 
produces  the  record  of  the  establishment  of  the  road  as  a  public 
highway,  and  proves  that  it  was  opened  and  used,  he  need  not 
prove  all  the  proceedings  preliminary  to  the  laying  out  of  the 
road.2  It  is  for  defendant  to  show  them  irregular.3 

16.  Selling  liquors.'] — The  overseers  of  the  poor  suing  for  a 
penalty  under  the  liquor  laws,  may  prove  their  character  by  gen- 
eral reputation.4  Plaintiff  may  make  a  prim  a  facie  case  of  sale, 
by  circumstantial  evidence.5  Evidence  of  keeping  as  for  sale  is 
competent  on  the  question  of  sale.6  So  is  the  fact  of  keeping  a 
bar  with  bottles  in  it,7  and  the  fact  that  it  was  a  place  of  resort, 
and  that  persons  went  in  sober  and  came  out  drunk.8  The  pres- 
ence of  indicia  of  the  business— t-decanters,  glasses,  pitchers,  beer- 
pump,  &c., — is  competent  evidence,9  and  the  names  of  liquors 
marked  on  the-vessels  may  be  proved  without  producing  the  ves- 
sels or  labels.10  The  fact  that  defendant  kept  tavern  and  displayed 
an  innkeeper's  sign,  is  not  alone  relevant  on  the  question  of  sale,11 
but  there  being  other  evidence  of  sale,  the  existence  of  and  in- 
scription on  his  sign  is  competent  to  show  his  business  and  iden- 
tity.13 So  is  his  business  card,13  and  cards  attached  to  jugs,  &c.,  on 
his  premises.14  Evidence  of  the  moving  of  liquor  casks,15  and  of 
having  empty  vessels  which  recently  contained  intoxicating 
liquors,16  is  competent. 

An  ordinary  witness  may  testify  directly  that  a  liquor  was 
gin,  brandy,  or  other.  It  does  not  require  an  expert.17  The  name 
by  which  a  beverage  was  called  for  or  served,  is  also  competent 
evidence.18 

Sale  of  liquor  by  a  servant  is prima  facie  eviden.ce  of  sale  by  the 


1  Little  v.  Denn,  34  N.  Y.  452.  In  a  justice's  court,  defendant  cannot  show  that 
he  is  owner  of  the  fee,  not  having  actual  possession  of  the  locus  in  quo. 

*  Sage  v.  Barnes,  9  Johns.  365. 

8  Chapman  v.  Gates.  46  Barb.  313,  820. 

4  Blatchley  v.  Moser,  15  Wend.  215,  218. 

6  People  v.  Hulbert,  4  Den.  133,  137;  State  v.  O'Conner,  49  Me.  594;  State  v. 
Hynes,  66  Me.  114 ;  Commonw.  v.  Cotter,  97  Mass.  336. 

6  State  v.  Wentworth,  65  Me.  234. 

7  People  v.  Hulbert,  4  Den.  133,  137 ;  Vallance  v.  Everts,  3  Barb.  653 ;    Com- 
monw.  v.  Jennings,  107  Mass.  488. 

8  Commonw.  v.  Stone,  97  Mass.  548 ;  Commonw.  T.  Keanedy,  Id,  224. 
'  Commonw.  v.  Lamere,  11  Gray,  319. 

10  Commonw.  v.  Blood,  11  Gray,  74. 

11  Commonw.  v.  Madden,  1  Gray,  486. 
11  State  v.  Wilson,  6  R.  I.  291. 

13  Commonw.  v.  Twombly,  119  Mass.  104. 

14  Commonw.  v.  Dearborn,  109  Mass.  368. 

14  Commonw.  v.  Davenport,  2  Allen,  299. 

15  Commonw.  v.  Timothy,  8  Gray,  480. 
11  Commonw.  v.  Timothy  (above). 

w  Testimony  that  in  a  business  house  one  of  a  party  called  for  whiskey,  and  that 
some  liquid  in  a  bottle  was  set  out  to  them  by  the  proprietor,  of  which  they  drank, 
is  sufficient  to  go  to  the  jury  as  evidence  of  a  sale  of  whiskey.  State  V.  Jarrett,  86 
Mo.  357. 


ACTIONS  FOR  CAUSING  INTOXICATION.  Y75 

master.1  Evidence  of  the  precise  day  of  committing  the  offense 
is  not  essential.3  Sales,  and  seizures,  made  a  short  time  prior  to 
the  day  pleaded,  are  competent  evidence  tending  to  prove  that 
the  keeping  on  the  day  named  was  with  intent  to  sell,  &c.8 


IV.    ACTIONS  (UNDER  CIVIL  DAMAGE  LAW)  FOB  CAUSING 

INTOXICATION.4 

IT.  Ground  of  action.'] — The  action  is  given  by  statute  ; 5  and 
a  case  clearly  within  the  terms  of  the  statute  must  be  shown.' 
But  this  rule  does  not  require  any  peculiar  cogency  of  proof,  but 
only  that  every  element  implied  in  the  statute  must  be  supported 
by  preponderance  of  evidence.7  The  "  cause  of  action"  is  not  the 
tort  committed  by  the  intoxicated  person  :  it  is  the  furnishing  of 
intoxicating  liquor  8  to  a  person  capable  of  its  abuse  and  actually 
abusing  it  to  the  damage  of  the  plaintiff  in  person,  property,  or 
means  of  support.  The  tort,  if  any,  committed  by  the  intoxi- 
cated person  is  referred  to  for  the  purpose  of  establishing  the 
fact  of  damages  and  proving  their  amount.  Injuries  of  all  the 
three  kinds  constitute  but  one  cause  of  action.9 

18.  Order  of  proof  ^ — The  order  of  proof  is,  as  usual,  in  the 
discretion  of  the  judge.10 

19.  Relation  of  plaintiff  to  the  drunkard^ — The  modes  of 


1  State  v.  Wentworth,  65  Me.  234. 

*  Tiffany  v.  Driggs,  1 3  Johns.  253.  But  the  place  may  be  essential.  Andrews  y. 
Harrington,  19  Barb.  343,  346. 

a  Commonw.  v.  Stoehr,  109  Mass.  365. 

4  Connecticut,  Gcnl.  btats.  Rev.  1875,  p.  269,  §  9;  Illinois,  Rev.  Stats.  1874,  p.  439, 
§§  8,  9 ;  Indiana,  Laws  1875,  ch.  264,  §  20 ;  lova,  Code  1873,  p.  289,  §  1657  ;  Kansas, 
Comp.  Laws  1879  (Dassler's  ed.),  p.  388,  §  2159 ;  Maine,  Rev.  Stats.  1861,  p.  804, 
ch.  27,  §  82,  amended  in  Laws  1872,  ch.  63,  §  4;  Massachusetts,  Laws  1879,  ch.  297; 
Michigan,  Laws  1875,  p.  283,  cb.  231,  §  3,  amended  in  Laws  1877,  p.  212,  ch.  193  ; 
Montana,  Laws  1873,  p.  69;  Nebraska,  Genl.  Stats.  1873,  p.  853,  ch.  58,  §§  576-9; 
New  Hampshire,  Genl.  Laws  1878,  p.  270,  ch.  109,  §  28  ;  New  York,  Laws  1873,  p. 
1016,  ch.  646;  North  Carolina,  Laws  1873-4,  p.  94,  ch.  68;  Ohio,  Laws  1875,  p.  86, 
amending  Act  May  1,  1854,  as  amended  April  18,  1870;  Pennsylvania,  Laws  1875, 
p.  41,  ch.  47,  §  7;  Rhode  Island,  Genl.  Stats.  Stipt.  A.  (1876),  p.  268,  ch.  508,  g§  32, 
84;  South  Carolina,  Laws  1873-4,  p.  799,  ch.  646,  §  7;  Vermont,  Laws  1874,  p.  62, 
ch.  27,  amending  Laws  1869,  p.  9,  ch.  4;  West  Virginia,  Laws  1877,  p.  144,  ch.  107, 
§  16;  Wisconsin,  Rev.  Stats,  p.  470,  ch.  66,  §  1560. 

6  Compare  Hoard  v.  Peck,  56  Barb.  202. 

6  Brannan  v.  Adams,  76  111.  321. 

1  Hall  v.  Barnes,  82  111.  228;  Mead  v.  Stratton,  8  Hun,  148;  and  see  Bodge  v. 
Hughes,  53  N.  H.  61  i. 

Jn  Ohio  it  has  been  held  that  the  sale,  being  there  a  criminal  offense,  must  be 
proved  beyond  a  reasonable  doubt.  Mason  v.  Shay,  3  Am.  L.  Rec.  435,  affi'g  1  Id. 
653.  Compare  p.  495  of  this  vol. 

8  Volans  v.  Owen,  74  N.  Y.  626,  629  ;  Mulford  v.  Clewell,  21  Ohio  St.  191  ;  s.  p. 
Emory  v.  Addis,  71  111.  273;  Hackett  v.  Smelsley,  77  Id.  109.  Contra,  Jackson  v. 
Brookins,  5  Hun,  630. 

»  Schneider  v.  Hosier,  21  Ohio  St.  98. 

w  See  Woolheather  v.  Risley,  88  Iowa,  486;  Hall  v.  Barnes,  82  111.  228. 


776      ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

proving  marriage,1  or  the  right  to  service  of  children,2  have  al- 
ready been  stated.  An  employer  need  not  prove  a  permanent 
relation,  such  as  apprenticeship.  Intoxication  of  ordinary  hired 
laborers,  with  damage  by  the  stoppage  of  their  work,  is  enough.8 

20.  Sale  or  gift  of  liquor^\ — Where  the  statute  applies  to  sales 
and  gifts,  either  a  sale  or  a  gift  may  be  proved  under  an  allega- 
tion tnat  defendant  sold  and  gave.4    Under  a  statute  which  refers 
only  to  sales,  proof  of  a  gift  will  not  sustain  the  action.5    But  the 
allegation  of  a  sale  in  such  case  may  be  proven  by  evidence  of  a 
sale  on  credit,6  or  in  exchange  for  services,7  or  furnishing  as  stakes 
of  a  game  with  the  seller.8    So  giving  away  to  promote  custom,9 
or  selling  a  cigar  and  throwing  in  a  drink,10  may  be  found  by  the 
jury  to  amount  to  a  sale.     But  proof  that  the  drinker  wrongfully 
took  the  liquor,  and  the  defendant,  on  discovering  the  tort,  com- 
pelled him  to  pay  for  it,  does  not  establish  a  sale.11     The  fact  that 
the  liquor  was  paid  for  by  another  person  than  the  one  to  whom 
it  was  furnished,  and  who  became  intoxicated,  is  not  material.13 
Proof  that  defendant  refused  to  sell  to  the  drinker  on  one  occa- 
sion, is  not  evidence  that  he  did  not  sell  at  another.13 

21.  Liability  of  'salesman.'] — The  mere  salesman  is  liable,  with- 
out proof  that  he  had  any  interest  in  the  liquor  or  the  business.14 

22.  Liability  of  principal.'] — Under  an  allegation  that  the 


1  P.  79  of  this  vol.  Defendant  may  disprove  the  marriage  by  evidence  of  the  ex- 
istence of  a  prior  husband  or  wife  (Emerson  v.  Shaw,  56  N.  H.  418,  s.  c.  1  Law  <fc 
Eq.  R.  635),  and  in  such  case  the  plaintiff  can  only  recover  for  such  injury  to  person 
or  property  as  a  stranger  could,  and  not  for  loss  of  means  of  support.  Kearney  v. 
Fitzeerald,  43  Iowa,  580,  s.  c.  10  West.  Jur.  553. 

*  P.  382  of  this  vol. 

8  Duroy  v.  Blinn,  11  Ohio  St.  381. 

4  See  State  v.  Brown,  36  Vt.  560;  State  v.  Irvine,  3  Heisk.  (Tenn.)  155; 
State  v.  Finan,  10  Iowa,  19.  The  terms  of  the  act,  it  was  noticed  in  Dubois  v.  Mil- 
ler, 5  Hun,  335,  apply  as  well  to  him  who  sells  a  barrel  as  to  him  who  sells  a  glass. 
But  query  ?  unless  known  to  be  bought  for  consumption  of  buyer.  See  paragraphs 
25  and  27  below. 

6  Brannan  v.  Adams,  76  111.  331.  But  where  the  statute  refers  to  "furnishing," 
proof  of  a  gift  is  enough.  State  v.  Freeman,  27  Vt.  520.  The  defendant's  declara- 
tion, a  day  or  two  after  the  drinking,  that  he  had  not  charged  and  would  not  take 
pay,  is  not  competent.  State  v.  Greenleaf,  31  Me.  517. 

6  See  Horn  v.  Smith,  77  111.  381;    Riley  v.  State,  43  Miss.  397;   Emerson  v. 
Noble,  32  Me.  380. 

7  See  Horn  v.  Smith  (above) ;  State  v.  Bescher,  32  Ind.  480. 

8  Commonw.  v.  Hogan,  97  Mass.  120. 

9  Kober  v.  State,  10  Ohio  St.  444. 

10  State  v.  Decker,  10  West.  L.  J.  328.     The  administering  of  spirits  by  a  physician 
to  a  patient  is  not  a  sale.     Shaffner  v.  State,  8  Ohio  St.  642. 

11  Kreiter  v.  Nichols,  28  Mich.  496. 

18  Volans  v.  Owen,  9  Hun,  558;  Commonw.  v.  Very,  12  Gray,  124;  and  see  State 
v.  Munson,  25  Ohio  St.  381 ;  but  compare  Boyd  v.  Watt.  27  Ohio  St.  259. 

11  Commonw.  v.  Barlow,  97  Ma=s.  597. 

14  Worley  v.  Spurgeon,  38  Iowa,  465 ;  Barnaby  v.  Wood,  50  Ind.  405 ;  s.  p.  in 
penal  action,  Roberts  v.  O'Conor,  33  Me.  496 ;  and  in  criminal  prosecutions,  State 
v.  Finan,  10  Iowa,  19;  and  see  4  Allen  (Ma«s.),  587  As  to  liquor  furnished  at  a 
club,  see  Marmont  v.  State,  48  Ind.  21,  and  cas.  cit. ;  State  v.  Mercer,  32  Iowa,  405. 


ACTIONS  FOR  CAUSING  INTOXICATION.  777 

defendant  Bold,  &c.,  it  is  competent  to  prove  a  sale  by  his  subor- 
dinate ; x  and  if  there  be  evidence  that  the  subordinate  acted  by 
his  authority,  defendant  is  liable ; 2  and  his  liability  in  actual  dam- 
ages is  not  removed  by  evidence  that  the  *sale  in  this  case  was 
without  his  knowledge  and  contrary  to  his  express  instructions.8 
Evidence  that  the  salesman  was  in  tne  place  and  garb  of  a  clerk  or 
servant,4  or  was  the  son,  or  husband,  or  wife  of  the  defendant,  is 
competent,  but  not  alone  sufficient,5  to  show  his  agency. 

23.  Connecting  defendant  with  salesman.'] — The  fact  that  the 
salesman  was  defendant's  authorized  subordinate,  may  be  proved, 
like  any  other  agency,  or  by  proving  other  sales  of  liquor  made 
by  him  or  her,  to  other  persons,  in  the  presence  of  defendant,6  or 
of  defendant's  partner  or  authorized  agent  in  the  business. 

24.  Connecting  defendant  with  business.] — On  the  question 
whether  defendant  had  any  interest  in  the  business,  it  is  compe- 
tent to  prove  circumstances  shown  or  presumable  to  be  within  his 
knowledge,  indicating  the  manner  in  which  the  business  was  con- 
ducted, and  under  what  name  and  style.7    Upon,  this  principle, 
the  inscription  of  defendant's  name  on  a  sign-board  on  or  in  the 
bar  room,8  may  be  proved  by  a  witness ;  and  the  license  or  the  ap- 
plication for  it,  and  the  labels  bearing  defendant's  name  on  the 
jugs,  &c.,  in  the  place,9  are  competent. 

25.  Connecting  sale  with  intoxication^ — It  must  appear  that 
the  defendant's  furnishing  of  liquor  was  to  the  person  thereby  in- 
toxicated.10   Evidence  that  he  entered  the  saloon  sober,  and  was 
found  there,  or  came  out,  intoxicated,  would  be  competent,  at 
least  in  the  absence  of  direct  testimony,  but  not  alone  sufficient 
proof  of  the  furnishing  of  liquor  causing  intoxication.11    An  alle- 


I  See  Parker  v.  State,  4  Ohio  St.  563;  State  v.  Stewart,  31  Me.  615;  State  y. 
Brown,  Id.  620. 

3  Peterson  v.  Knoble,  85  Wis.  80 ;   s.  P.  Comm'rs  of  Excise  v.  Dougherty,  55 
Barb.  332.     Permitting,  not  enough.     Ditton  v.  Morgan,  56  Ind.  60. 

3Kreiterv.  Nichols,  28  Mich.  498;  Smith  v.  Reynolds,  8  Hun,  128;  Keedy  v. 
Howe,  72  111.  133. 

4  See  60  N.  Y.  214;  66  Barb.  338;  36  Super.  Ct.  (4  J.  <fe  S.)  222. 

B  The  contrary  has  been  held  even  in  a  criminal  prosecution.  State  v.  Brown, 
81  Me.  520.  I  consider  the  rule  in  Parker  v.  State,  4  Ohio  St.  565,  sound.  That  the 
fact  that  the  salesman  was  the  defendant's  son,  is  not  enough  without  evidence  of  au- 
thority. But  where  the  sale  was  by  defendant's  wife,  the  fact  that  they  lived  togeth- 
er, the  place  being  his,  and  there  being  no  evidence  that  she  carried  on  a  separate 
trade,  was  held  sufficient  evidence  of  her  agency  to  sustain  a  verdict  against  him. 
Commonwealth  v.  Coughlin,  14  Gray  (Mass.),"889.  Such  evidence,  conversely,  might 
not  prove  the  husband  to  be  the  agent  of  his  wife.  Mead  v.  Stratton,  8  Hun,  148. 

6  Hall  v.  McKecknie,  22  Barb.  244  ;  s.  p.  State  v.  Roberts,  65  N.  H.  483, 485,  and 
cas.  cit. 

7  REDFIELD,  J.,  Blanchard  v.  Manahan,  44  Vt.  251. 

8  State  v.  Wilson,  5  R.  I.  291. 

'  Commonwealth  v.  Dearborn,  109  Mass.  868,  and  see  p.  591  of  this  vol.     The 
sign-board  or  jugs  need  not  be  produced.     I'.  774. 
10  Bush  v.  Murray,  66  Me.  472. 

II  Kearney  v.  Fitzgerald,  43  Iowa,  680,  s.  c.  10  West.  Jur.  555;  Commonw.  v.  Ken- 


778  ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

gation  of  causing  intoxication,  admits  evidence  of  causing  it  in 
part.1 

If  the  drinker  or  any  other  witness  testifies  to  a  sale  at  de* 
f endant's  saloon,  it  is*  competent  to  prove  by  cross-examination 
or  otherwise  that  the  witness  previously  drank  elsewhere,  not  for 
the  purpose  of  contradicting  him,2  nor,  if  his  own  intoxication  did 
the  injury,  to  reduce  the  damages ;  but  to  impair  his  credit. 

26.  Character  of  liquor.'} — A  witness  may  testify  directly  to 
the  intoxicating  quality  of  a  beverage,8  or  the  court  may  take 
judicial  notice  of  it ; 4  and  where  they  do  not  do  so,  there  must  be 
some  evidence  on  the  point,5  and  the  question  is  for  the  jury. 

27.  Knowledge  and  intent  of  seller.] — It  is  not  necessary  to 
prove  that  the  seller  had  in  fact  any  mischievous  intent,  or  antici- 
pated causing  intoxication,6  or  even  that  he  knew  the  liquor  to 
be  intoxicating,7  unless  the  act  makes  knowledge  material. 

If  the  act  requires  proof  of  known  intemperate  habits,  evi- 
dence of  general  reputation  is  not  enough,8  at  least  without  such 
circumstances  of  proximity,9  or  of  long  continued  sales  by  defend- 
ant,10 as  to  raise  a  presumption  that  he  had  notice  of  the  habit. 
Intemperate  habit  is  a  question  of  fact,  and  a  witness  may  be  al- 
lowed to  state  that  the  drinker  was  of  such  habit,11  subject,  of 
course,  to  cross-examination  as  to  the  grounds  of  this  statement.12 

Where  the  liability  sought  to  be  enforced  is  affixed  by  the  act 
to  a  sale  to  a  minor,  and  the  act  makes  knowledge  of  minority 
material,  evidence  of  the  fact  of  minority,  and  of  circumstances 
sufficient  to  put  the  seller  on  inquiry,  is  prima  facie  sufficient ; 
and  it  is  not  a  sufficient  answer  to  show  merely  that  the  buyer 
had  a  beard,  and  represented  that  he  was  of  age.13 


nedy,  97  Mass.  224.  Declarations  of  intent  to  go  to  defendant's  saloon,  may  be  com- 
petent.  Rafferty  v.  Buckman,  46  Iowa,  195. 

1  Roth  v.  Eppy,  80  111.  283. 

8  Commonwealth  v.  Fitzgerald,  2  Allen,  297. 

8  Page  774  of  this  vol. 

4  So  held  of  gin.  Commonw.  v.  Peckham,  2  Gray,  514.  So  held  of  whiskey.  Car- 
man v.  State,  18  Ind.  450.  As  to  beer,  see  Markle  v.  Akron,  14  Ohio,  586 ;  Klare 
v.  State,  43  Ind.  483.  As  to  wine,  see  Worley  v.  Spurgeon,  38  Iowa,  465.  The 
*  court  will  not  take  judicial  notice,  whether  one  would  recover  from  intoxication  in 
five  or  six  hours.  Brannan  v.  Adams,  76  111.  331. 

s  See  Schlosser  v.  The  State,  55  Ind.  82. 

6  Barnaby  v.  Wood,  50  Ind.  405. 

7  The  contrary  was  held  in  a  criminal  prosecution  in  State  v.  Chambers,  4  "West. 
L.  Monthly,  275 ;  but  see  paragraphs  13  (above)  aud  37  (below). 

8  Stanley  v.  State,  26  Ala.  26,  GOLDTHWAITE,  J. 

•  Adams  v.  State,  25  Ohio  St.  586,  and  see  Smith  v.  State,  19  Conn.  493. 

10  Wickwire  v.  State,  19  Conn.  477. 

11  Stanley  v.  State  (above). 
»  See  Chapter  V. 

13  Goetz  v.  State,  41  Ind.  162.  There  is  difference  of  opinion  whether  knowledge 
of  the  minority  or  the  habit  is  material  unless  made  so  by  the  act.  In  Jamison  v. 
Burton,  43  Iowa,  282,  s.  o.  10  West.  Jur.  505,  it  was  held  not  material,  and  this  is  the 
better  opinion.  In  Massachusetts  it  is  not  material,  even  in  a  criminal  prosecution. 


ACTIONS  FOR  CAUSING  INTOXICATION.  -    779 

28.  Fact  of  Intoxicationl\ — Any  witness,  though,  he  be  not 
an  expert,  who  saw  the  alleged  drinker,  may  be  asked  whether  or 
not  he  was,  in  the  witness'  judgment,  intoxicated ;  or  drunk ;  or 
under  the  influence  of  liquor.  It  does  not  render  the  evidence 
incompetent  that  the  witness  is  unable  to  state  all  the  constituent 
facts  which  amount  to  drunkenness.1 

•29.  Liability  of  owner  and  lessor.'] — Proof  of  a  lease  of  the 
premises  made  by  a  person  sought  to  be  charged  as  owner,  raises 
a  presumption  of  ownership.2  Knowledge  of  the  use  of  the  prem- 
ises for  sale  of  liquor  is  not  necessarily  inferred,  even  from 
joint  occupation.3  Without  some  evidence  tending  to  show  knowl- 
edge, the  owner  cannot  be  held  merely  as  owner.4  Evidence  of 
common  notoriety  is  not  alone  competent  evidence  of  his  knowl- 


30.  Contributory  negligence.] — It  has  been  held  that  if  the 
intoxication  was  produced  in  part  by  plaintiff's  procurement,6  or 
would  have  been  wholly  prevented  by  reasonable  care  which 
plaintiff  might  have  exerted  without  danger,7  there  can  be  no  re- 
covery ;  but,  on  the  other  hand,  if  plaintiff  was  in  nowise  charge- 
able with  responsibility  for  the  intoxication,  he  is  not  precluded 
from  recovery  by  reason  of  having  intrusted  the  property,  in  re- 
spect to  which  he  sues,  to  one  known  to  him.  to  be  in  the  habit  of 
getting  intoxicated.8  On  neither  point  is  plaintiff  usually  required, 
in  the  first  instance,  to  prove  his  own  freedom  from  negligence, 
until  there  is  something  in  evidence  to  suggest  such  negligence.9 

31.  Damages."] — It  is  essential  to  prove  actual  damage  of  a 
kind  mentioned  in  the  statute.10    All  three  kinds  of  injury,  viz. : 


See  paragraph  37  (below).  In  Indiana  it  is  material,  but  is  presumed,  and  may  be 
rebutted  i)y  satisfactory  proof  of  reasonable  belief,  entertained  in  good  faith,  that  the 
buyer  was  a  minor,  <fec.  Farrell  v.  State,  45  Ind.  371,  and  cas.  cit.  See,  on  the  gen- 
eral principle  that  ignorance  of  a  constituent  fact  docs  not  necessarily  take  away 
criminality,  Halstead  T.  State,  10  Cent.  L.  J.  290;  and  p.  772  of  this  vol ;  Reg.  v. 
Prince,  L.  R.  2  C.  Cas.  R.  154,  s.  c.  13  Eng.  R.  385. 

1  People  v.  Eastwood,  14  N.  Y.  562,  affi'g,  3  Park  Cr.  25 ;  s.  p.  McKee  v.  Nelson, 
4  Cow.  355.     "  State  whether  or  not  your  husband  was  intoxicated,"  <fec,  held  not 
improper  as  leading.      Woolheather  v.  Risley,  38  Iowa,  486.      On  the  question 
whether  one  was  intoxicated  several  hours  after  drinking,  evidence  as  to  how  long  it 
usually  takes  for  a  person  to  get  sober,  was  held  competent  in  Brannon  v.  Adams,  76 
III.  331. 

2  See  pp.  591  and  641  of  this  vol. 

3  Mead  v.  Stratton,  8  Hun,  148;  Cobleigh  v.  McBride,  46  Iowa,  116. 

4  Barnoby  v.  Wood,  50  Ind.  405.     Letting  after  the  statute  took  effect,  with  knowl- 
edge of  the  lessee's  purpose,  ia  evidence  of  permission.     See  Granger  v.  Knipper,  2 
Cinn.  480,  and  see  State  v.  Shanahan,  54  N.  H.  437 ;  State  v.  Ballingall,  42  Iowa,  87, 
s.  c.  10  West.  Jur.  24. 

6  Cobleigh  v.  McBride  (above) ;  and  see  paragraph  27.  Compare  Adams  v.  The 
State,  25  Ohio  St.  586. 

«  See  Jewett  v.  Wanshura,  43  Iowa,  574,  *.  c.  10  West.  Jur.  559 ;  Engleken  v.  Hil. 
ger,  43  Iowa,  563,  s.  c.  10  West.  Jur.  553. 

'  Reget  v.  Bell,  77  111.  593. 

8  Bertholf  v.  O'Reilly,  8  Hun,  16. 

9  See,  also,  p.  597  of  this  vol. 

10  Schneider  v.  Hosier,  21  Ohio  St.  98;  Freese  V.  Tripp,  70  III  496;  Graham  T. 
Fulford,  73  111.  596. 


780  ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

to  person,  to  property,  and  to  means  of  support,  pertain  to  but 
one  cause  of  action,  but  the  evidence  may  be  restricted  to  those 
kinds  which  the  complaint  indicates  had  been  sustained.1 

32.  —  to  the  person.'] — Mental  suffering  and  indignity,  are  not 
alone  sufficient  to  sustain  the  action.2    But  if  evidence  is  given  of 
physical  injury  and  suffering — such  as  that  caused  by  an  assault,  or 
by  any  act  which  would,  if  committed  by  a  stranger,  be  a  tres- 
pass, for  instance,  turning  out  of  the  house — then  the  injury  to 
feelings  and  the  indignity,  become  part  of  the  actual  damages.8 

33.  —  to  property. ,] — In  general,  the  same  rules  apply  to  proof 
of  injuries  to  property  in  these  actions,  as  would  be  applied  in 
actions  against  the  intoxicated  person.     Thus,  in  a  wife's  action, 
she  need  not  give  such  evidence  of  her  title  to  the  property  in- 
jured or  taken,  as  might  be  necessary  as  against  her  husband's 
creditors.    It  is  enough  if  she  proves  that  she  always  claimed  and 
treated  it  as  hers,  and  that  her  husband  conceded  it  to  be  hers.4 
Under  this  or  the  following  head  of  damage,  plaintiff  may  also 
recover  the  expenses  necessarily  imposed  on  him  or  her,  by  the 
sickness  of  the  intoxicated  person,  such  as  medical  attendance, 
nursing,  &c.5 

34.  —  to  means  of  support.] — To  establish  this  ground  of  re- 
covery, dependence  for  support,  in  some  degree  at  least,  must  be 
shown.6    To  prove  loss  of  support,  plaintiff,  having  shown  a  legal 
right  to  support  from  a  husband  or  parent,  may  show  that  the 
ability  of  the  latter,  for  supporting,  were  impaired  by  the  intoxica- 
tion, or  by  consequent  sickness  or  other  incapacity  ;7  that  the  in- 
toxication prevented  his  obtaining  employment,8  or  that  his  death 
was  caused  either  by  his  intoxication  or  by  another  intoxicated 
person  whose  intoxication  was  caused  by  defendant.9    "  Means  of 


1  See  Mulford  v.  Clewell,  21  Ohio.  St.  191;  Hackett  v.  Smelsley,  77  111.  109; 
Mason  v.  Shay,  1  Am.  L.  Rec.  553,  affi'd  in  3  Id.  435. 

4  Peterson  v.  Knoble,  35  Wi3.  80,  DIXON,  C.  J. ;  and  see  Wightman  v.  Devere.  33 
Id.  570 ;  s.  P.  in  libel,  6  Hun,  5.  And  it  seems  that  a  wife's  loss  of  the  society  of  her 
husband  is  not  enough.  Dunlavey  v.  Watson,  38  Iowa,  398.  Compare  56  Barb.  204. 
As  to  loss  of  services,  see  Hunt  v.  Town  of  Wmfield,  36  Wis.  154,  and  cases  cited. 

3  DIXON,  C.  J.,  Peterson  v.  Knoble  (above).      Contra,  McCann  v.  Roach,  81  111. 
213  ;   and  see,  against  damages  for  mental  distress,  Brantigam  v.  "White,  73  111.  561. 
Calloway  v.  Layton,  47  Iowa,  456,  s,  c.  17  Alb.  L.  J.  314.      It  may  depend  on  the 
language  of  the  act.     See  Friend  v.  Dunks,  37  Mich.  25. 

4  Woolheather  v.  Rialey,  38  Iowa,  486.     Nor  is  it  necessary  for  her  to  show  that 
ehe  pursued  an  independent  remedy  against  a  third  person  to  whom  the  intoxicated 
husband  transferred  the  property.     Mulford  v.  Clewell,  21  Ohio  St.  191. 

8  Wightman  v.  Devere,  33  Wis.  570. 

•  Volansv.  Owen,  74  N.  Y.  526,  rev*g  9  Hun,  558. 

7  Mulford  v.  Clewell  (above).     According  to  the  Illinois  cases  the  effect  mast  have 
been  to  substantially  impair  necessary  and  proper  support.     73  111.  187,  561 ;  81  Id. 
213. 

8  Roth  v.  Eppy,  80  HI.  283. 

9  Jackson  v.  Brookins,  5  Hun,  630;  Smith  v.  Reynolds,  8  Id.  128 ;  Qua5n  v.  Rus- 
sell, Id.  319;  Emory  v.  Addis,  71  111.  273 ;  Hackett  v.  Smelsley,  77  Id.  109.    Contra 
Hayes  v.  Phelan,  4  Hun,  733 ;  5  Id.  335,  note;  Collier  v.  Early,  54  Ind.  559 ;  Davis 
V.  Justice,  31  Ohio  St.  359. 


ACTIONS  FOR  CAUSING  INTOXICATION.  781 

support "  in  the  statute  includes  the  wages  or  produce  of  labor, 
and,  hence,  the  husband's  capacity  for  labor,1  as  well  as  moneys 
and  goods  in  his  hands  for  that  support,  and  which  were  necessary 
and  proper  for  it,  with  due  regard  to  the  circumstances  and  con- 
dition in  life 2  of  the  couple.  Upon  this  point  the  plaintiff  may 
five  evidence  of  the  age,  condition  and  circumstances  of  the  hus- 
and  or  parent,  and  his  habits  of  sobriety  and  industry,  and 
capacity  to  earn  or  produce.3  The  evidence  need  not  be  clear, 
positive  and  specific  as  to  the  time,  place,  manner,  and  each  item 
of  loss.  The  injury  may  be  proved  like  any  other  fact,  by  cir- 
cumstances.4 It  is  not  necessary  to  show  that  plaintiff  was  ex- 
clusively dependent  on  such  means ; 5  nor  is  the  recovery  confined 
to  past  and  present  losses ;  but  may  include  the  loss  of  future 
means.6  It  is  enough  to  show  that  the  means  of  support  have 
been  diminished  below  what  is  reasonable  and  competent  for  the 
plaintiff's  station  in  life,  and  below  what  they  would  otherwise 
have  been.7  If,  however,  others,  also  dependent,  were  also  in- 
jured in  means  of  support,  the  plaintiff's  recovery  should  be  lim- 
ited to  a  proper  share.8 

35.  Exemplary  damages.] — To  recover  exemplary  damages, 
(which  may  be  had  against  the  owner  as  well  as  the  seller9)  there 
must  be  evidence  not  only  of  actual  damage,10  but  of  conduct  will- 
ful, wanton,  reckless,  or  otherwise  deserving  of  condemnation  be- 
yond the  mere  actual  damage.11  Evidence  that  the  sale  was  made 
against  the  plaintiff's  remonstrance,12  or,  after  her  notice  not  to 
sell,  or  was  an  attempt  to  hinder  the  reform  of  the  drinker,  is 
enough.13 

1  Schneider  v.  Hosier,  21  Ohio  St.  98;  Wightman  v.  Devere,  33  "Wis.  570. 
s  Hackett  v.  Smelsley,  77  111.  109. 
*  Dunlavey  v.  Watson,  38  Iowa,  398. 
4  Home  v.  Smith,  77  111.  881.    ' 
6  Hackett  v.  Smelsley  (above). 

6  Mulford  v.  Clewell,  21  Ohio  St.  191 ;  Mason  v.  Shay,  3  West.  L.  Rec.  463,  affi'g 
1  Id.  653. 
'Id. 

8  Franklin  v.  Schermerhorn,  8  Hun,  112. 

9  Hackett  v.  Smelsley,  77  HI.  109. 

10  Ganssly  v.  Perkins,  30  Mich.  492. 

11  COOLEY,  J.,  Kreiter  v.  Nichols,  28  Mich.  600;  s.  P.  Bates  v.  Davis,  Y6  HI.  222; 
Franklin  v.  Schermerhorn,  8  Hun,  112.     But  a  breach  of  the  peace  is  not  essential. 
Goodenough  v.  McGrew,  44  Iowa,  670.     According  to  Ganssly  v.  Perkins  (above),  the 
willfulness  must  be  one  which  contemplated  injuring  the  plaintiff  specially.     Accord- 
ing to  Mason  v.  Shay,  1  Am.  L.  Rec.  553  ;  affi'd  in  3  Id.  435,  exemplary  damages  are 
allowable  wherever  the  sale  was  criminal,      s.  p.  Schneider  v.  Hosier,  21  Ohio  St. 
98.     Whether  nets  which  are  punishable  criminally,  are  ground  of  exemplary  dam- 
ages, see,  in  the  affirmative,  Brannon  v.  Silvernail,  81  111.  434 ;  in  the  negative,  Koerner 
v.  Oberly,  66  Ind.  284. 

12  Ganssly  v.  Perkins  (above). 

13  Hackett  v.  Smelsley,  77  111.  109 ;  Meidel  v.  Anthis,  71  Id.  241.    So,  perhaps,  of 
clandestine  sales.     Hoard  v.  Peck,  66  Barb.  202.     And  of  sales  under  sham  pretext 
of  a  medical  prescription.     People  v.  Safford,  6  Den.  112.      Previous  habits  of  in- 
toxication are  not  matter  of  aggravation,  unless  shown  to  have  been  known  to  de- 
fendant.    Goodenough  v.  McGrew  (above). 


782  ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

36.  Defenses ; — Limitations.'] — The  limitation  applicable  to  a 
tort  or  injury  to  the  person,  applies,  as  of  the  time  of  the  sale, 
not  the  time  of  damage  sustained.1 

37  —  sah  as  medicine.'] — According  to  some  authorities,  gen- 
eral provisions  of  statute  in  restraint  01  sales  of  liquor,  with  no 
reference  to  sales  for  medical  use,  are  to  be  construed  with  an 
implied  exception  of  sales,  made  in  good  faith,  of  medicines,  bitters 
and  tinctures,2  as  well  as  of  liquors  sold  on  a  physician's  prescrip- 
tion.8 Assuming  this  to  be  the  rule  applicable  under  this  act,  the 
question  whether  the  sale  was  such,  or  was  only  a  disguise  for  a 
sale  of  a  beverage,  is  one  of  fact  for  the  jury ;  and  it  is  competent 
to  prove  the  circumstances,  such  as  the  composition  and  character 
of  the  alleged  medicine  or  bitters,  the  proportion  of  alcohol  in 
it,  and  whether  it  does  readily  or  with  difficulty  produce  intoxica- 
tion, whether  it  is  agreeable  or  nauseous  to  the  taste,  whether  it 
is  useful  or  not  as  a  medicine,  and  whether  it  is  frequently  re- 
sorted to  and  used  as  a  beverage.4  But  mere  ignorance  of  the 
intoxicating  character  of  a  beverage,  is  not  competent,5  except  on 
the  question  of  exemplary  damages. 

38.  —  other  sellers  contributing  to  injury '.] — Evidence  that 
sales  by  persons  not  parties  to  the  action,  contributed  to  cause  the 
intoxication,  is  not  competent,  even  in  mitigation,  for  the  statute 
imposes  liability  in  respect  of  sales  causing  intoxication  in  whole 
or  in  part.6    But  evidence  that  previous  intoxication,  caused  by 
others'  sales,  impaired  the  means  of  support,  is  competent  in  mit- 
igation.7 

39.  — plaintiff's  connivance  or  negligence.'] — Evidence  that 
plaintiff  requested  the  sale,8  or  purchased  liquor,  as  such,  for  her 
husband,9  is  competent  in  bar  ;  but  in  the  former  case  she  may 
prove  in  rebuttal  that  defendant  knew  she  made  the  request  by 
her  husband's  constraint.      Evidence  that  he  drank  with  her  con- 
sent is  not  competent  in  bar,  but  is  in  mitigation,10  and  so   evi- 


1  Emmert  v.  Gill.  39  Iowa,  692  ;  but  see  paragraph  19. 

8  Russell  v.  Sloan,  33  Vt.  656.  Contra,  Commonw.  v.  Hallett,  103  Mass.  452. 
Compare  Kearney  v.  Fitzgerald,  43  Iowa,  580,  8.  c.  10  West.  Jur.  555 ;  State  v.  Wall, 
34  Me.  165. 

3  Ball  v.  State,  50  Ind.  595;  State  v.  Larrcmore,  19  Mo.   391 ;  and  see  Williams 
v.  State,  48  lud.  306,  309  ;  People  v.  Safford,  5  Den.  112 ;   Shaffner  v.  State,  8  Ohio 
St.  642. 

4  Russell  v.  Sloan  (above). 

5  Commonw.  v.  Boynton,  2  Allen,  160.    See,  also,  paragraphs  13,  27  (above).  HOAB, 
J.,  says  that  a  man  is  held  to  know  the  law,  and  the  hardship  is  no  greater  to  ascer- 
tain the  fact.    s.  P.  103  Mass.  452.     As  to  ignorance  as  to  the  person  by  whom  the 
liquor  was  sent  for,  see  Bates  v.  Davis,  76  111.  222:  Miller  v.  State.  5  Ohio  St.  275. 

6  Fountain  v.  Draper,  49  Ind.  441,  445;  Hackett  v.  Smelsley,  77  111.  109  ;  Emory 
V.  Addis,  71  Id.  273  ;  s.  p.  Woolheather  v.  Risley,  38  Iowa,  486. 

7  Woolheather  v.  Risley  (above).      See,  also,  Ganssly  v.  Perkins,  30  Mich.  492; 
s.  P.  Cleveland,  &c.  R.  R.  Co.  v.  Sutherland,  19  Ohio  St.  151. 

8  Jewettv.  Wanshura,  43  Iowa,  574,  s.  c.  10  West.  Jur.  559. 

9  Kearney  v.  Fitzgerald,  43  Iowa,  580,  8.  c.  10  West.  Jur.  555 ;    Engelken  v.  Hil 
ger,  43  Iowa,  563,  s.  c.  10  West.  Jur.  653. 

10  Roth  v.  Eppy,  80  111.  283. 


PROCEEDINGS  IN  REM  FOR  FORFEITURE.  783 

dence  that  she  accompanied  him  and  consorted  with  him  in  the 
defendant's  saloon,  when  he  drank  there,  is  competent  in  mitiga- 
tion ;  but  she  may  prove  in  rebuttal  that  she  did  not  do  so  freely, 
but  was  compelled  by  him.1  So  evidence  that  they  habitually 
drank  together  is  competent  in  mitigation.2  On  the  other  hand, 
it  has  been  held  that  where  she  might,  without  danger,  have  pre- 
vented his  drinking  on  the  only  occasion  proven,  and  did  not  do 
so,  she  could  not  recover.8 

40.  — former  adjudication  •  satisfaction.] — The  fact  that  de- 
fendant has  suffered  a  criminal  conviction  for  the  same  sale,  is 
not  material ; 4  nor  is  it  a  bar  that  plaintiff  has  settled  a  claim 
against  another  seller,5  if  the  intoxications  were  separate  and  dis- 
tinct.6 


Y.  PROCEEDINGS  IN  REM  FOR  FORFEITURE. 

41.  Burden  of  proof  I\ — Under  the  statutes,  proof  of  probable 
cause  for  seizure  and  prosecution  may  throw  on  the  claimant  the 
burden  of  proving  innocence.7     Defendant's  refusal  to  produce 
his  books  and  papers,  raises  a  presumption  that  if    produced, 
they  would  give  a  complexion  to  the  case,  at  least  unfavorable,  if 
not  directly  adverse,  to  the  interest  of  the  party.8 

42.  ITnovdedge  and  notice.'] — Defendant  is  bound  by  knowl- 
edge or  notice  which  had  at  any  time  been  communicated  to  him 
personally.9     Also  by  that  of  which  his  agent  was  cognizant  at  the 
time  of  the  transaction  of  the  agent,  not  only  if  the  knowledge 
was  derived  in  the  particular  transaction,  but  equally  if  it  was 
previously  acquired,  within  a  limit  reasonable  to  presume  recol- 
lection, and  was  such  that  the  agent  was  at  liberty  to  communi- 
cate it  to  his  principal.10 


1  Hackett  v.  Smelsley,  77  HI.  109. 

8  Id.    Compare  Engelken  v.  Hilger,  43  Iowa,  563,  s.  o.  10  "West.  Jur.  563. 

8  Regel  v.  Bell,  77  111.  593. 

4  Bedore  v.  Newton,  54  N.  H.  117 ;  Cook  v.  Ellis,  6  Hill,  466. 

6  Jewett  v.  Wanshura,  43  Iowa,  574,  s.  c.  10  West.  Jar.  569. 

«  Miller  v.  Patterson,  31  Ohio  St.  419. 

i  Wood  v.  United  States,  16  Pet.  342 ;  Taylor  v.  United  States,  3  How.  U.  S.  197: 
The  Short  Staple,  1  Gall.  103.  And  see  Lilienthal's  Tobacco  v.  U.  S.  97  U.  S.  (7 
Otto),  237.  As  to  evidence  of  fraudulent  intent,  see  Buckley  v.  U.  S.  4  How.  U.  S. 
251;  Taylor  v.  U.  S.  3  Id.  197;  Alfonso  v.  U.  S.  2  Story  C.  Ct.  421;  Wood  v.  U.  S. 
16  Pet.  342;  Bottomley  v.  U.  S.  1  Story  C.  Ct.  135.  As  to  competent  evidence  of 
value  or  coat,  see  Wood  v.  U.  S.  16  Pet.  842;  Buckley  v.  U.  S.  4  How.  U.  S.  2r>l ; 
Alfonso  v.  U.  S.  2  Story  C.  Ct.  421;  Taylor  v.  U.  S.  8  How.  U.  S.  197;  and  pages 
806-11  of  thisvoL 

8  Clifton  v.  U.  S.  4  How.  U.  S.  242,  247 ;  The  Luminary,  8  Wheat.  407.     Compare 
Chaff 'C  v.  U.  S.  18  Wall.  645. 

9  The  Distilled  Spirits,  11  Wall.  356,  366. 

10  Id.  This  is  the  English  rule  (17  C.  B.  N.  S.  466),  adopted  in  the  U.  S.  Sup. 
Ct.;  and  see  33  Vt.  252. 


784  ACTIONS  FOR  CAUSES  DEFINED  BY  STATUTE. 

43.  Admissions  and  declarations.'] — Where,  as  in  the  case  of 
proceedings  to  enforce  forfeiture  of  a  ship,1  or  against  a  distillery,8 
the  forfeiture  and  the  proceedings  are  in  rem,  and  the  knowledge 
of  the  owner  is  not  material,  the  admissions  and  declarations  of 
the  master  or  lessee,  made  during  his  holding  that  character,  are 
competent.8    So  are  memoranda  and  books  containing  relevant 
entries,  found  upon  the  premises.4 

44.  Cogency  of  proof  ^\ — A  proceeding  in  rem  for  forfeiture, 
is  a  civil  and  not  a  criminal  proceeding  within  the  rule  as  to  proof 
beyond  reasonable  doubt.5    But  the  jurors  ought  to  be  clearly 
satisfied.6 

VI.   ACTIONS  ON  RECOGNIZANCES. 

45.  Mode  of  proof '.] — The  authority  of  the  magistrate  who 
took  the  recognizance  may  be  shown  by  parol  evidence  of  his  acts 
in  that  capacity,  without  producing  his  commission.7      If  the 
record  to  be  proved  is  that  of  the  court  trying  the  case,  the  regu- 
lar course  is  to  produce  and  inspect  the  record.8    Evidence  is  not 
admissible  to  contradict  the  record.9 


1  U.  S.  v.  Little  Charles,  1  Brock.  Marsh.  347. 

8  Dobbin's  Distillery  v.  U.  S.  96  U.  S.  (6  Otto),  398,  399. 

3  Id.  403. 

4  Id. 

8  Lilienthal'8  Tobacco  v.  U.  S.  97  U.  S.  (1  Otto),  237,  267,  271;  The  Robort  Ed. 
wards,  6  Wheat.  187. 

6  Lilienthal's  Tobacco  v.  U.  S.  (above). 

*  Webster  v.  Davis,  5  Allen.  393,  396. 
8  Longley  v.  Vose,  27  Me.  179,  184. 

•  Id.;  People  v.  Hurlbutt,  44  Barb.  126. 


CHAPTER  LVII. 

PROCEEDINGS  IN  ADMIRALTY. 
1.  Mode  of  proof. 

1.  Mode  of  proof :] — The  strict  rules  of  the  common  law  in 
respect  to  the  admission  of  evidence,  are  not  fully  applied.1  The 
mode  of  proof  is  subject  to  rules  prescribed  by  the  Supreme 
Court.3  Ihe  competency  of  witnesses  depends  on  the  laws  of  the 
State  in  which  the  court  is  held.3  The  proofs  must  substantially 
conform  to  and  sustain  the  pleadings;  and  although  the  strict 
rules  of  the  common  law  in  respect  to  variance  are  not  followed, 
yet,  in  general,  the  court  will  not  permit  a  party  to  be  surprised  by 
the  exhibition  of  proof  materially  variant  from  the  case  stated  in 
the  pleadings.  But,  unless  the  variance  is  calculated  to  mislead, 
the  court  may  proceed  to  a  decree.4 


1  Elwell  v.  Martin,  Ware,  63  ;  The  J.  F.  Spencer,  3  Ben.  337.  In  admiralty,  the 
admissions  of  the  master,  though  made  subsequently  to  the  disaster,  are  competent 
against  the  owner,  on  the  ground  that  when  the  transaction  occurred,  the  master  rep- 
resented the  owner,  and  was  his  agent  in  navigating  the  vessel.  This  sort  of  evi- 
dence is  confined  to  the  confessions  of  the  master,  and  cannot  be  extended  to  any 
other  person  in  the  employment  of  the  boat,  for  in  no  proper  sense  has  the  owner  in* 
trusted  his  authority  to  any  one  but  the  master.  The  Potomac,  8  Wall.  690. 

*  U.  S.  U.  S.  g  862;  Blease  V.  Garlington,  92  U.  S.  (2  Otto),  1.  Regulations  as 
to  proof  in  particular  classes  of  actions,  will  be  found  in  U.  S.  Rev.  Stat. 

3  U.  S.  R.  S.  §  858.     Except  that  there  can  be  no  exclusion  for  color,  and  that 
the  incompetency  to  testify  against  executors,  dec.,  is  specially  regulated  by  the  stat> 
ute  quoted  at  p.  70  of  this  vol. 

4  2  Abb.  U.  S.  Pr.  80;  Rules  for  Court  of  Admiralty,  No.  24,  61. 


80  [785] 


CHAPTER  LVIII. 

DEFENSES   IN    ABATEMENT. 
1.  Parties.  2.  Another  action  pending. 

1.  Parties.~\ — The  mode  of   proving  the  facts  necessary  to 
establish  the  incapacity  of  a  party,  or  the  interest  of  a  person  not 
made  a  party,  has  already  been  discussed  in  the  chapters  on  ac- 
tions by  and  against  particular  classes  of  persons.     The  sworn 
schedules  in  bankruptcy  or  insolvency  made  by  plaintiff,  and  con- 
taining no  mention  of  the  claim  he  sues  on,  are  competent,1  but 
not  conclusive,2  Against  him.     The  like  schedules  of  the  third 
person,  alleged  to  be  the  real  party  in  interest,  are  not  competent,8 
without  evidence  to  connect  plaintiff  with  them.     Correspond- 
ence between  the  plaintiff  and  the  third  person  is  competent, 
if  part  of  the  res  gestce* 

2.  Another  action  pending.5] — The  pendency  of  another  ac- 
tion, to  be  admissible,  must  be  pleaded,6  unless  it  appears  on  the 
face  of  the  complaint.7  Under  an  allegation  of  another  action  pend- 
ing, a  judgment  recovered  since  commencement  of  the  present 
action  is  evidence  unless  offered  as  a  bar.8    The  record,  or  at  least 
the  docket   entry,  is  the  primary  evidence.9    Oral  evidence  of 
the  pendency  of  the  action  is  secondary.10    Oral  evidence  as  to 
the  questions  involved  is  admissible,  within  the  limits  stated  in 
respect  to  former  adjudications.11    Proof  of  the  pendency  of  the 
former  action  within  reasonable  limits  of  time,  raises  a  presump- 
tion of  its  continued  pendency,  which  throws  on  plaintiff  the  bur- 
den of  showing  the  contrary.12 

I  Springer  v.  Drosch,  32  Tnd.  486,  s.  c.  2  Am.  R.  356. 

8  See  Cram  v.  Union  Bank,  1  Abb.  Ct.  App.  Dec.  461,  affi'g  44  Barb.  426.  A  sworn 
statement  in  a  pleading  is  not  a  conclusive  admission. 

3  Turner  v.  See,  67  N.  Y.  667. 

4  May  v.  Brownell,  3  Vt.  463. 

6  For  the  facts  to  be  established,  see  Watson  v.  Jones,  13  Wall.  679. 

8  White  v.  Talmage,  35  Super.  Ct.  (J.  <fc  S.)  223;  Estes  T.  Farnham,  11  Minn.  423. 

7  Moak's  Van  Santv.  PI.  744.     But  see  N.  Y.  Code  Civ.  Pro.  §  499. 

8  Krekeler  v.  Kilter,  62  N.  Y.  372.      There  should  be  a  supplemental  answer, 
to  make  such  judgment  conclusive. 

9  Philadelphia,  <fec.  R.  R.  Co.  v.  Howard,  13  How.  U.  S.  307. 
10  Wright  v.  Maseras,  56  Barb.  521. 

II  See  Chapter  LXI ;  s.  p.  Nichols  v.  Smith,  42  Barb.  381. 
12  Fowler  v.  Byrd,  Hempst.  213. 

[786] 


CHAPTER  LIX. 

DEFENSES  DENTING  OR  IMPEACHING  THE  CONTRACT  SUED  ON. 

I.  DENIAL  OF  ASSENT.  IL  ILLEGALITY  OF  CONTRACT — continued. 

1.  Fraud  or  deceit.  12-  —  estoppel  by  certificate. 

2.  Mistake.  13-  —  ora\  evidence. 
8.  Duress.  14-  —variance. 

4.  Want  of  consideration.  15-  —intent. 

6.  Statute  of  frauds.  16.  —  covers  for  usury. 

6.  Forgery.  W-  —  ac*  °f  agent  or  co-trustee. 

7.  Alterations.  I8-  —  inception. 

19.  —  declarations  and  admissions. 

IL  ILLEGALITY  OF  CONTRACT.  III.  INCAPACITY  OF  CONTRACTING  PARTY. 

8.  General  rules.  20.  Infancy. 

9.  Compounding  felony.  21.  — new  promise:    admissions  and 

10.  Sunday  laws.  declarations. 

11.  Usury:  pleading;  burden  of  proof.        22.  Insanity. 

I.  DENIAL  OF  ASSENT. 

1.  Fraud  or  deceit.'] — Fraud  by  defendant,1  or  his  agent,2  in 
procuring  the  execution  of  even  a  sealed  instrument  sued  on, 
may  always  be  proved,  if  alleged.3  The  burden  is  on  the  party 
who  relies  on  it  to  allege  and  prove  it,4  unless  a  fiduciary,  re- 
lation is  shown.44  A  mere  allegation  of  false  representation 
does  not  admit  evidence  of  intent  to  deceive.5  An  allegation  of 
fraud  does  not  admit  of  evidence  of  rescission,6  nor  of  an  omission 
not  shown  to  be  fraudulent.7 

Inadequacy  of  consideration  may  be  so  gross  as  to  be  compe- 
tent under  an  issue  of  fraud.8  Evidence  having  a  tendency  to 
establish  fraud  is  not  incompetent,  by  reason  of  the  tendency  be- 
ing slight.9  So  of  evidence  slightly  tending  to  show  good  faith.10 
Evidence  of  the  general  habits  of  the  party  alleged  to  be  de- 


1  Otherwise  of  that  of  a  principal  debtor  in  inducing  sureties  to  sign,  unless  there 
ia  evidence  that  the  creditor  was  privy  to  it.  Coleinan  v.  Bean,  1  Abb.  Ct.  App. 
Dec.  894. 

"  The  representations  of  the  agent  being  shown  to  have  been  made  as  part  of  the 
resffestce.  Sandford  v.  Handy,  23  Wenc).  20(>. 

3  At  common  law  as  well  as  in  equity.  Hartshorn  v.  Day,  19  How.  U.  S.  211, 222. 

4  Beatty  v.  Fishel,  100  Mass.  448  ;    Vint  v.  King,   2  Am.  Law  Keg.  712.     For  a 
summary  of  the  material  facts,  under  the  new  procedure,  see  Freuzel  v.  Miller,  37 
Ind.  1,  s.  c.  10  Am.  R.  62,  and  17  Alb.  L.  J.  607.  4»  Seo  pp.  735,  236. 

8  Lefler  v.  Field,  52  N.  Y.  621 ;  Dubois  v.  llermance,  56  N.  Y/673,  affi'g  1  Supreme 
Ct.  (T.  &  C.)  203. 

'  Fox  v.  Griffin,  2  Allen,  1,  7. 

7  Dudley  v.  Scranton.  67  N.  Y.  424. 

8  Eyro  v.  Totter,  15  How.  U.  S.  42;  Vint  v.  King  (above). 
'  llubbard  v.  Briggs,  31  N.  Y.  618. 

10  See  Gray  v.  Lessiugton,  2  Bosw.  257. 

[787] 


788          DEFENSES  IMPEACHING  THE  CONTRACT  SUED  ON. 

frauded,  showing  him  peculiarly  susceptible  to  be  imposed  on,  is 
competent.1  The  neglect  to  produce  evidence  in  the  power  of  the 
party  charged  with  fraud  is  especially  significant  on  this  issue.2 

Preponderance  of  evidence  is  enough.8 

The  fact  of  having  restored,  or  offered  to  restore,  must  be 
alleged,  to  be  admissible.4 

2.  Mistake.'] — The  presumption  is  that  a  grantor,  who  was  of 
competent  capacity  to  do  business,  knew  the  contents  of  a  deed 
signed  and  delivered  by  him.5    His  mistake  must  be  clearly  and 
strongly  proved  before  the  court  can  relieve  against  it.8  Evidence 
of  mental  reservations,  or  of  subsequent  oral  declarations,  is  not 
enough,  even  where  the  deed  remained  in  his  possession.7 

3.  Duress.']- — Actual  violence  need  not  be  proved.8    The  act 
must  be  shown  to  have  been  induced  by  the  coercion  ;  this  is  not 
necessarily  presumed.9 

4.  Want  of  consideration.'] — Original  want  of  consideration 
may  be  proved,  when  consideration  is  in  issue.10    Inadequacy  of 
consideration  is  not  a  defense ; u  unless  so  gross  as  to  sustain  an 
inference  of  fraud.13    Subsequent  failure  of  consideration,  to  be 
admissible, — even  where  it  consists  in  the  fact  that  the  contract 
was  made  in  consideration  of  an  executory  agreement,  which  was 
afterward  broken,18 — must  be  pleaded. 


1  Kauffman  T.  Swar,  5  Penn.  St.  (6  Barr.)  230. 

*  Cheney  v.  Gleason,  117  Mass.  557. 

8  Jones  v.  Greaves,  26  Ohio  St.  2,  9.  c.  20  Am.  R.  752.     Compare  p.  495  of  this  vol. 

4  Devendorf  v.  Beardsley,  23  Barb.  656.  An  offer  to  allow  judgment  may  be 
enough.  Harris  v.  Equit.  L.  Ass.  S<>c.  64  N.  Y.  196. 

B  Souverbye  v.  Arden,  1  Johns.  Ch.  240.  As  to  who  has  the  burden  of  proof  if 
the  signer  is  shown  to  have  been  illiterate,  compare  Add.  on  Contr.  7  ed.  226 ;  King 
T.  Languor,  1  Nev.  <fc  M.  576;  School  Com.  v.  Kesler,  67  N.  C.  443  ;  Selden  v.  Myers, 
20  How.  U.  S.  606  ;  Stacy  v.  Ross,  27  Tex.  3;  Sims  v.  Bice,  67  III.  88 ;  Dorsheimer 
v.  Rorbach,  8  C.  E.  Green  (N.  J.),  46. 

•  Id.  T  Id. 

8  See  United  States  v.  Huckabee,  16  Wall.  414,  and  p.  270  of  this  vol.     For  con- 
flicting definitions  of  duress,  see  7  Wall.  214;  14  Id.  332;  49  Ind.  573,  s.  c.  19  Am. 
R.  695  ;  70  N.  Y.  497,  and  cases  cited. 

9  Feller  v.  Green,  26  Mich.  70.     But  compare  Tilley  v.  Damon,  11  Cush.  247. 

10  Payment  of  consideration  expressed,  though  acknowledged  under  seal,  may  be 
disproved,  if  material.     Baker  v.  Cornell,  1  Daly,  469  (and  see  pp.  697,  738,  741,  of 
this  vol.).     But  disproving  it  does  not  make  the  contract  void  aa  against  the  con- 
tractor for  want  of  consideration.    Id. 

11  Earle  v.  Peck,  64  N.  Y.  596,  and  cases  cited. 

12  Greer  v.  Tweed,  13  Abb.  Pr.  N.  S.  427.     Or  except  where,  as  in  contracts  in 
restraint  of  trade,  or  between  parties  in  a  fiduciary  relation  (and,  to  some  extent,  in 
specific  performance),  the  court  refuse  to  enforce  without  adequate  consideration. 

13  Batterman  v.  Pierce,  3  Hill,  171 ;   Wilson  v.  Wilson,  87  Md.  1,  B.C.  11  Am.  R. 
618.     But  compare  Walker  v.  Millard,  29  N.  Y.  375.    To  illustrate  the  distinction  in 
another  way, — if  a  note  is  given  in  consideration  of  the  assignment  of  a  patent,  the 
invalidity  of  the  patent  is  an  original  want  of  consideration ;  but  if  the  patent  be  valid, 
its  worthlessnesa  is  only  a  failure  of  consideration ;  and  even  this  is  not  conceded  to 
be  a  defense,  for  the  court  may  decline  to  inquire  into  the  adequacy  of  the  considera- 
tion where  there  was  no  fraud  or  mistake.     Miller  v.  Finley,  26  Mich.  249,  s.  c.  12 
Am.  R.  306 ;    Eldridge  v.  Mather,  2  N.  Y.  157 ;    Nash  v.  Lull,  102  Mass.  60.  s.  c.  3 
Am.  R.  435,  and  cases  cited.     Compare  Clough  v.  Patrick,  37  Vt.  421. 


ILLEGALITY  OF  CONTRACT.  780 

5.  Statute  of  frauds.'] — The  rule  of  pleading,1  and  the  princi- 
pal rules  as  to  the  mode  of  proof,8  have  been  already  stated. 

The  burden  is  on  defendant  to  show  affirmatively  that  the 
value  was  in  excess  of  the  statute  limit,3  or  that  the  stipulation 
precluded  performance  within  one  year,  &c.4  The  statute  of  an- 
other State,  if  relied  on,  should  be  proved  as  a  fact.5 

6.  Forgery.] — The  mode  of   proving  handwriting  has  been 
stated.8    It  is  not  competent  to  show  that  the  person  suspected 
of  the  forgery  lias  forged  the  defendant's  name  in  other  instances,7 
nor  that  he  has  been  already  convicted  of  forging  the  paper  in 
suit.8    Proof  beyond  reasonable  doubt  is  not  required.9 

In  rebuttal  of  the  defense  of  forgery  of  defendant's  name  to 
an  ordinary  obligation  to  pay  money,  plaintiff  may  show  that,  at 
about  its  date,  defendant  was  trying  to  borrow.10 

7.  Alterations.'] — The  rule  has  already  been  stated.11 

II.  ILLEGALITY  OF  CONTRACT. 

8.  General  rules."] — Illegality  must  be  pleaded,  to  be  admis- 
sible ;12  and  if  the  special  ground  is  stated,  other  grounds  not  stated 
are  inadmissible.13    It  cannot  be  presumed  except  upon  clear  evi- 
dence.14   To  bring  a  case  within  a  statutory  prohibition,  defendant 
should  produce  satisfactory  evidence  that  the  facts  are  such  as  to 
make  the  statute  applicable,  and  not  leave  to  mere  inference  what 
should  be  established  by  proof.15 

The  usual  test  whether  a  demand  connected  with  an  illegal 


I  Pp.  374,  471,  622,  725  of  this  vol. 

9  Requisite  memorandum,  pp.  292,  863 ;  Auction  sales,  p.  327 ;  Extension  or  modi- 
fication, pp.  314,  870;    Requisite  delivery,  p.  818  ;    Part  payment,  p.  319;  Part  per- 
formance, p.  731 ;  Guaranty,  p.  471 

3  Crookshank  v.  Burrell,  18  Johns.  58. 

4  Walker  v.  Johnson,  96  U.  S.  (6  Otto),  424. 

5  Wilcox  Silver  Plate  Co.  v.  Green,  9  Hun,  347,  affi'd  72  N.  Y.  17 ;  Ellis  v.  Maxson, 
19  Mich.  186,  a.  c.  2  Am.  R.  81. 

•  Pp.  S91-6  of  this  voL 

7  Rose.  N.  P.  93,  citing  Balcetti  v.  Serani,  Peake  Cas.  142 ;  Griffiths  v.  Payne,  A.  A 
E.  131.    But  compare  Corser  v.  Paul,  41  N.  H.  24 ;  Stratton  v.  Farwell,  10  Allen,  31,  n. 

8  Castrique  v.  Imrie,  L.  R.  4  H.  L.  414,  434,  per  BLACKBURN,  J. 

*  Page  496  of  this  vol. ;  .N.  Y.  Indemnity  Co.  v.  Gleason,  7  Abb.  New  Caa.  834  ; 
Blaeser  v.  Milwaukee,  <fec.  Ins.  Co.  37  Wis.  31,  8.  c.  19  Am.  R.  747. 

10  Stevenson  v.  Stewart,  11  Penn.  St.  807.     Compare  p.  248  of  this  voL 

II  Pages  897,  406,  695  and  696  of  this  vol. 

"  Goss  v.  Austin,  11  Allen,  625;  Rose.  N.  P.  846.      Otherwise  if  it  appear  by 
plaintiff's  case.     Russell  v.  Barton,  66  Barb.  539. 

13  Dingeldein  v.  Third  Avenue  11.  R.  Co.  9  Bosw.  79,  rev'd,  on  another  ground,  in 
87  N.  Y.  575.     This  rule  does  not  bind  the  court  to  enforce  an  unlawful  contract. 

14  Nelson  v.  Eaton,  26  N.  Y.  410,  s.  c.  16  Abb.  Pr.  113,  reVg  7  Abb.  Pr.  305,  and 
affi'g  15  How.  Pr.  805.     If  the  contract  could  be  legally  performed,  an  intention  to  do 
that  which  is  a  violation  of  tho  law  must  be  shown.     Waugh  v.  Morris,  L.  R.  8  Q.  B. 
202,  8.  c.  5  Monk's  Eng.  197. 

16  Miller  v.  Roessler,  4  E.  D.  Smith,  234. 


790    DEFENSES  IMPEACHING  THE  CONTRACT  SUED  ON. 

transaction  is  capable  of  being  enforced  by  law  is,  whether  the 
plaintiff  requires  the  aid  of  the  illegal  transaction  to  establish  his 
case.1 

Mere  knowledge  of  the  other  party's  illegal  intent  is  not 
usually  enough,8  but  knowledge  and  giving  aid  is.3  Common  re- 
port is  not  usually  competent  to  charge  plaintiff  with  knowledge.4 

Oral  evidence  is  admissible  to  show  an  illegal  intent,  though 
it  contradict  the  terms  of  a  written  instrument;5  but  not  neces- 
sarily to  show  innocent  intent  contrary  to  a  writing  expressing 
illegal  intent.6  The  acts  and  declarations  of  each  party,  both  be- 
fore and  after,  as  well  as  at  the  time  of  making  the  contract,  are 
competent  against  himself  on  the  question  of  intent,7  and  they 
may  be  examined  as  witnesses,8  within  limits  already  -stated.9 

The  presumption  that  the  law  is  known  extends  even  to 
foreigners,  making  abroad  a  contract  to  be  performed  within  this 
State  ;10  but  not  to  persons,  not  citizens  of  this  State,  and  making, 
without  the  State,  a  contract  to  be  performed  without  it.11  For- 
eign law  is  matter  of  fact  to  be  alleged  and  proved.12 

9.  Compounding  felony. ,] — It  should  appear,  1.  That  there  was 
an  agreement  to  compound  a  felony ;  2.  That  the  contract  was  the 
result  of  that  agreement ;  and,  3.  That  the  plaintiff  knew  of  the 
illegal  consideration  at  the  time  of  making  the  contract.13    The 
opinion  of  the  public  prosecutor,  that  all  the  evidence  which  the 
government  could  produce  would  not  be  sufficient  to  sustain  the 
charge,  is  not  relevant.14 

10.  Sunday  laws.~\ — It  is  not  enough  to  prove  that  the  nego- 
tiation of  the  contract  was  made,  and  its  terms  agreed  on,  on 
Sunday,  if  the  contract  was  completed  and  perfected  on  a  secular 
day ;  nor  even  that  the  instrument  was  executed  on  Sunday  if  it 


1  Holt  v.  Green,  73  Penn.  St.  1 98,  s.  c.  13  Am.  R.  737,  and  cases  cited ;  Gregory  v. 
Wilson,  36  N.  J.  (7  Vroom),  315,  s.  c.  13  Am.  R.  448 ;  Alvord  v.  Latham,  31  Barb.  294. 
Compare  HOWE,  J.,  Pereuilhet  v.  Hautho,  23  La.  Ann.  294,  s.  c.  8  Am.  R.  695. 

*  Tracy  v.  Talmage,  14  N.  Y.  162 ;  Michael  T.  Bacon,  49  Mo.  474,  s.  c.  8  Am.  R. 
138 ;  TALIAFERRO,  J.,  Hubbard  v.  Moore,  24  La.  Ann.  591,  s.  c.  13  Am.  R.  128  ;  Ma- 
hood  v.  Tealza,  26  La.  Ann.  108,  s.  c.  21  Am.  R.  546. 

8  Hull  v.  Ruggles,  56  N.  Y.  424,  affi'g  1  Supra.  Ct.  (T.  <fe  C.)  18,  s.  c.  65  Barb.  432. 

4  Hedges  v.  Wallace,  2  Bush  (Ky.),  442.     Knowledge  of  agent  held  not  imputable 
to  principal.     Stanley  v.  Chamberlain,  39  N.  J.  L.  565.     Compare  p.  783  of  this  vol. 

5  Cassard  v.  Hinman,  1  Bosw.  207,  affi'g  1 4  How.  Pr.  84 ;  again,  6  Bosw.  8 ;  Sher- 
man v.  Wilder,  106  Mass.  537. 

6  Porter  v.  Havens,  37  Barb.  343.     Compare  paragraph  13. 

7  Brown  v.  Brown,  34  Barb.  533  ;  Sherman  v.  Wilder  (above). 

8  See  pp.  336, 620  and  793  of  this  vol. 

9  Pp.  620  and  793  of  this  vol. 

10  Dewitt  v.  Brisbane,  16  N.  Y.  508.     Compare  Smeltzer  v.  White,  92  U.  S.  (2  Otto), 
390,  393. 

11  Merchants'  Bank  v.  Spalding,  9  N.  Y.  53,  62,  affi'g  12  Barb.  302. 
»  See  Thatcher  v.  Morris,  11  N.  Y.  437. 

13  Earl  v.  Clute,  2  Abb.  Ct.  App.  Dec.  1. 

14  Bigelow  v.  Woodward,  15  Gray,  560 ;  and  see  Davies  v.  London,  <fec.  Marine  Ins. 
Co.  38  L.  T.  R.  N.  S.  478.     Record  of  acquittal  not  conclusive  of  innocence.     People 
v.  Buckland,  13  Wend.  592;  see,  also,  pp.  655  and  671  of  this  vol. 


ILLEGALITY  OF  CONTRACT.  791 

•was  delivered  on  a  secular  day.1  A  subsequent  ratification  on  a 
secular  day  may  be  proved,  even  by  acts,  without  express  prom- 
ise.8 To  prove  a  work  of  "necessity  or  charity ,"  honest  belief 
that  a  case  of  necessity,  &c.,  existed,  is  not  alone  sufficient;3  but 
the  object  of  the  act  done  being  proved,  belief  is  relevant,  and 
may  go  to  the  jury  even  though  the  ground  of  belief  or  means 
of  knowledge  have  not  been  shown.4 

11.  Usury :  Pleading  •  and  Burden  of  Proof. ~] — To  be  ad- 
missible, usury  must  be  pleaded;5  and  a  general  allegation,  with- 
out stating  the  facts  relied  on  as  constituting  usury,  is  not  enough 
to  admit  evidence  of  essential  facts  not  alleged.6  The  facts  alleged 
for  this  purpose  must  be  proved  as  laid,  or  the  defense  fails.7 

If  foreign  law  is  relied  on,  both  the  law8  and  the  facts  neces- 
sary to  bring  the  contract  under  foreign  law 9  must  be  alleged, 
and  proved.  There  is  no  presumption  that  the  usury  laws  of  this 
State  prevail  in  another  State  or  country.10  An  obligation  made 
without  the  State,  and  not  designating  a  place  of  payment,  is  not 
presumed  usurious,  though  the  rate  exceeds  our  limit.11  On  a 
contract  made  here  between  persons  resident  here,  and  which 
would  be  usurious  by  our  law,  but  which  is  to  be  performed  in  a 
State  where  it  would  not  be  usurious,  intent  to  evade  may  be  pre- 
sumed in  the  absence  of  explanation.13 

The  affirmative  of  the  issue  is  upon  the  defendant13  to  prove 
not  merely  an  usurious  intent,  but  facts  from  which  usurious  in- 
tent is  to  be  deduced.14  Evidence  supporting  allegations  that  the 


1  Lovejoy  v.  Wbipple,  18  Yt.  379  ;  Strainer  v.  Jones,  24  Id.  317,  321.     So  of  salea 
and  services  on  a  secular  day  pursuant  to  a  contract  on  Sunday.     Cranson  v.  Goss, 
107  Mass.  439,  s.  c.  9  Am.  R.  45. 

2  Sumner  v.  Jones  (above). 

z  Johnson  v.  Town  of  Irasburgh,  47  Vt.  28,  s.  o.  19  Am.  R.  111. 

4  Doyle  v.  Lynn  &  Boston  R.  R.  Co.  118  Mass.  195,  s.  o.  19  Am.  R.  431. 

8  Fay  v.  Grimsteed,  10  Barb.  321 ;  Mechanics'  Bank  of  Williamsburgh  v.  Foster, 
44  Barb.  87,  s.  c.  19  Abb.  Pr.  47,  29  How.  Pr.  408 ;  Frank  v.  Morris,  67  111.  138,  s.  c. 
11  Am.  R.  4. 

6  Watson  v.  Bailey,  2  Duer,  609  ;  Fay  v.  Grimsteed  (above) ;  Smalley  v.  Doughty, 
6  Bosw.  66 ;  Manning  v.  Tyler,  21  N.  Y.  667.  Compare  Dagal  v.  Simmons,  23  Id.  491. 

I  Griggsv.  Howe,  2  Abb.  Ct.  App.  Dec.  291,  affi'g  31  Barb.  100. 

8  Cutler  v.  Wright,  22  N.  Y.  472. 

9  Dolman  v.  Cook,  14  N.  J.  Eq.  56 ;  and  see  pp.  229,  335  of  this  vol.     For  a  con- 
venient clue  to  the  conflicting  authorities  on  the  law  of  place,  see  Dickinson  v.  Ed- 
wards, 7  Abb.  New  Cas.  65,  and  cas.  cit.,  and  p.  411  of  this  vol. ;  Merchants'  Bk.  of  Can- 
ada v.  Griswold,  72  N.  Y.  472,  affi's*  9  Hun,  561 ;  Cope  v.  Wheeler,  41  N.  Y.  303,  affi'g 
Cope  v.  Alden,  63  Barb.  350,  s.  c.  37  How.  Pr.  181.    The  apparent  conflict  in  the  cases 
is  reduced  when  it  is  considered  that  the  courts  lean  toward  sustaining  a  contract  mado 
without  corrupt  intent,  if  it  can  be  sustained  by  the  law  of  either  place.     General 
expressions  in  the  opinions  aa  to  what  law  applies,  often  mean  what  law  the  court 
may  apply  in  support  of  the  contract,  not  what  law  it  must  apply  in  prohibition  of  it. 

r°  Davis  v.  Garr,  6  N.  Y.  124 ;  Cutler  v.  Wright,  22  N.  Y.  472. 

II  Davis  v.  Garr  (above). 

19  Berrien  v.  Wright,  26  Barb.  208. 

13  Haughwout  v.  Garrison,  69  N.  Y.  839,  affi'g  40  Super.  Ct.  (J.  A  S.)  550. 

14  Valentine  v.  Conner,  40  N.  Y.  248  ;  Eldridge  v.  Reed,  2  Sweeny,  155. 


702          DEFENSES  IMPEACHING  THE  CONTRACT  SUED  ON. 

security  sued  on  was  given  in  substitution  for  a  prior  security  of 
the  same  or  less  amount,  and  that  the  prior  security  was  usurious, 
throws  on  plaintiff  the  burden  of  giving  evidence  to  purge  the 
new  security  of  the  presumption  of  usury.1 

12.  —  estoppel  by  certificate,  &c.~] — Plaintiff  may  exclude 
evidence  of  usury  by  proving  that,  without  any  notice  of  the  facts 
constituting  usury,  he  took  the  securities  and  advanced  the  money 
on  the  faith  of  defendant's  affidavit  or  certificate  that  there  was 
no  defense,  and  that  he  would  not  have  taken  them  had  he  had 
any  notice  of  usury.2    It  is  essential  to  show  that  the  purchase 
was  in  reliance3  on  a  certificate  or  affidavit  which  had  already 
been  made.4    A  certificate  may  be  rebutted  by  evidence  that  it 
was  fraudulently  obtained ;  but  not  by  evidence  of  negligently 
signing  while  ignorant.5    Oral  representations  are  equally  compe- 
tent.6   Representations  by  the  maker  do  not  estop  the  payee.7 
Representations  by  the  payee  do  not  estop  the  maker.8    A  guar- 
anty of  payment  does  not  estop  ;9   nor  does  accepting  a  convey- 
ance of  the  equity  of  redemption;10  but  assuming  payment  on  re- 
ceiving a  conveyance  does.11 

13.  —  oral  evidence.'] — The  fact  that  the  contract  is  in  writing 
does  not  exclude  oral  evidence  to  show  that  though  apparently- 
innocent  it  was  usurious;13  or,  though  apparently  usurious,  it  was 
innocent.13 

14.  —  variance.] — A  substantial  variance  as  to  the  rate  ex- 
acted,14 or  as  to  the  ground  or  pretext  on  which  it  was  exacted,15  is 
material  and  fatal,  if  plaintiff  was  misled  to  his  prejudice  ;  other- 
wise not.16 

15.  —  intent.'] — The  intent  which  is  essential,  is  not  intent  to 


1  Stanley  v.  Whitney,  47  Barb.  586. 

s  Mason  v.  Anthony,  3  Abb.  Ct.  App.  Dec.  207 ;  Smith  v.  Lombardo,  15  Hun, 
415,  417  ;  Dinkelspiel  v.  Franklin,  7  Hun,  339,  840. 

3  Wilcox  v.  Howell,  44  N.  Y.  398,  affi'g  44  Barb.  396. 

4  Payne  v.  Burnham,  62  N.  Y.  69,  rev*g  2  Hun,  143,  s.  c.  4  Supm.  Ct.  (T.  <fc  C.)  678. 
6  Dinkelspiel  v.  Franklin,  7  Hun,  339,  affi'g  72  N.  Y.  108  ;  see,  also,  p.  443  of  this 

vol.  and  cases  cited. 

6  Am.  L.  Ins.  <fe  Trust  Co.  v.  Bayard,  5  N.  Y.  Leg.  Obs.  13  ;  Ferguson  v.  Hamil- 
ton, 35  Barb.  427 ;  and  see  Ahern  v.  Goodspeed,  9  Hun,  263 ;  Benedict  v.  Caffe,  5 
Duer,  226 ;  Robbins  v.  Richardson,  2  Bosw.  248 ;  Adams  v.  Blancan,  6  Robt.  334. 

7  Hackley  v.  Sprague.  10  Wend.  114. 

8  Dowe  v.  Schutt,  2  Den.  621. 

9  Tiedemann  v.  Ackerman,  16  Hun,  SOY. 

10  Brooks  v.  Avery,  4  N.  Y.  225. 

11  Murray  v.  Barney,  34  Barb.  336.     Compare  Berdan  v.  Sedgwick,  44  N.  Y.  626, 
affi'g  40  Barb.  359. 

"  Rohan  v.  Hanson,  11  Cush.  44. 

13  Hollenbeck  v.   Shutts,  1  Gray,  431 ;  2  Whart.  Ev.  §  1044 ;  Shoop  v.  Clark,  4 
Abb.  Ct.  App.  Dec.  235. 

14  Griggs  v.  Howe.  2  Abb.  Ct.  App.  Dec.  291,  affi'g  81  Barb.  100;  Frank  v.  Mor- 
ris. 57  111.  138,  B.  c.  11  Am.  R.  4, 

15  Gasper  v.  Adams,  28  Barb.  441 ;  Brown  v.  Champlin,  66  N.  Y.  214,  219. 

18  Catlin  v.  Gunter,  11  N.  Y.  368,  s.  o.  10  How.  Pr.  315,  rev'g  1  Duer,  253 ;  Duel 
v.  Spence,  1  Abb.  Ct.  App.  Dec.  659. 


ILLEGALITY  OF  CONTRACT.  793 

violate  the  statute,1  but  intent  to  take  more  than  the  rate  fixed,  and 
this  is  to  be  deduced  from  the  facts.2  The  evidence  must  sustain 
an  inference  that  both  parties  were  cognizant  of  the  facts  essential 
to  usury,3  and  that  there  was  intent,  both  on  the  part  of  the  lend- 
er4 and  of  the  borrower.5  But  it  need  not  be  shown  that  the  intent 
was  communicated.6  Each  party  may  be  compelled  to  testify  to 
his  intent,7  except  in  those  jurisdictions  where,  as  in  New  York, 
usury  is  indictable,  and  there  the  privilege8  is  a  protection,  not 
onlyto  a  party9  but  to  an  agent10  in  the  usurious  transaction. 

Where  the  facts  are  such  that  the  question  of  legality  depends 
upon  intent,  a  party  may  be  allowed  to  testify,  even  in  his  own 
favor,  whether  he  intended  to  take  or  pay  usury,11  but  not  whether 
it  was  his  understanding  that  the  other  intended  to  take  usury,  for 
this  is  only  an  inference.12  If  the  facts  proved  constitute  usury, 
testimony  to  innocent  intent  cannot  sustain  a  finding  that  there 
was  no  usury;13  and  if  the  facts  do  not  constitute  usury,  intent  is 
not  material.14 

Reservation  of  interest  in  excess  of  the  legal  limit  is  presump- 
tive, but  not  conclusive,15  evidence  of  usury.  Slight  excess  may 
be  explained  by  evidence  of  mistake  or  inadvertence.16  The  mere 
fact  that  the  lender  reserved  part  of  the  consideration,17  or  that 
the  security  reserved  interest  for  a  term  anterior  to  its  date,18  are 
not  sufficient  to  establish  usury. 

A  subsequent  payment  of  a  bonus,  in  addition  to  legal  interest, 
will,  without  direct  evidence  of  agreement,  sustain  a  finding  of 
original  agreement  to  pay  it.19 


1  And  ignorance  of  the  statute  is  not  material.  Bank  of  Salina  v.  Alvord,  31 
N.  Y.  473. 

*  Fiedler  v.  Darrin,  60  N.  Y.  437,  rev'g  59  Barb.  651 ;  and  see  68  N.  Y.  308. 
8  Powell  v.  Jones,  44  Barb.  521. 

4  Woodruff  v.  Hurson,  32  Barb.  557. 

5  Keyes  v.  Moultrie,  3  Bosw.  1. 

•  Ayrault  v.  Chnmberlain,  83  Barb.  229. 

7  See,  as  to  proving  intent,  pp.  336,  618,  620,  of  this  vol. 

8  For  the  rule  as  to  privilege,  see  p.  620  of  this  vol. 

9  Fellows  v.  Wilson,  81  Barb.  162.     But  the  court  may  require  a  party  sworn  in 
his  own  behalf  on  an  issue  of  usury,  to  answer  whether  he  is  not  under  indictment 
for  usury.     Southworth  v.  Bennett,  68  N.  Y.  659. 

10  Curtis  v.  Knox,  2  Den.  341 ;  Henry  v.  Salina  Bank,  1  N.  Y.  83,  affi'g  2  Den.  155; 
Vilas  v.  Jones,  1  N.  Y.  274. 

11  Black  v.  Ryder,  6  Daly,  304. 

"  Central  Bank  v.  St.  John,  17  Wis.  157;  Hogg  v.  Ruffner,  1  Black,  115.  Com- 
pare  Burt  v.  Gwinn,  4  Har.  <fe  J.  (Md.)  607,  617. 

13  Austin  v.  Walker,  45  Iowa,  627. 

14  Smith  v.  Paton,  81  N.  Y.  66,  affi'g  6  Bosw.  145. 
16  Archibald  v.  Thomas,  3  Cow.  284. 

16  Marvine  v.  Hymers,  12  N.  Y.  223.  Compare  Utica  Ins.  Co.  v.  Tilman,  1  "Wend. 
655. 

11  Booth  v.  Swezey,  8  N.  Y.  276.  The  fact  that  the  borrower  gave  temporary 
credit  without  interest,  for  part  of  the  loan,  does  not  necessarily  prove  usury,  but 
may  be  explained.  Brown  v.  Champlin,  66  N.  Y.  214,  219. 

ls  Marvin  v.  Feeter,  8  Wend.  632.  U^ess  it  is  shown  affirmatively  that  the  lender 
did  not  provide  the  money  on  the  day  of  date,  and  hold  it  in  readiness.  Dowdall  v 
Lenox,  2  Edw.  267. 

"  Catlin  v.  Gunter,  11  N.  Y.  368,  s.  c.  10  How.  Pr.  315,  rev'g  1  Duer,  253. 


794         DEFENSES  IMPEACHING  THE  CONTRACT  SUED  Off. 

Evidence  of  nsury  in  former  dealings  of  the  parties  is  not 
enough;1  but  a  general  arrangement  for  usurious  accommoda- 
tions, under  which  the  loan  in  question  was  made,  is;2  and  a  series 
of  loans,  each  followed  by  the  voluntary  payment  of  a  usurious 
bonus,  is  competent  on  the  question  of  intent.8 

16.  —  cowers  for  usury. .] — If  a  contract  is  not  necessarily  usu- 
rious the  burden  is  on  defendant  to  prove  the  guilty  intent,  and 
that  the  contract  was  a  cover  for  usury  and  for  the  loan  of  money 
upon  usury,4  and  that  the  parties  had  knowledge  of  the  facts  con- 
stituting the  usury.5    On  these  questions  circumstantial  evidence, 
is  freely  received. 

Evidence  of  usage  cannot  be  received  to  justify  a  transaction 
otherwise  usurious.7  Profitableness  of  selling  exchange  cannot 
be  assumed  without  proof  ;8  but  if  profitableness  is  shown,  evi- 
dence that  buying  exchange  was  exacted  as  a  condition  of  the 
loan,  proves  usury.9  If  the  bank  was  entitled  to  reserve  for  ex- 
change, defendant  must  prove  the  current  rate  of  exchange  in 
order  to  show  the  excess  of  legal  interest.10 

To  show  that  commissions  charged  for  advances  in  the  course 
of  business  were  usury,  the  burden  is  on  defendant  to  give 
some  evidence  showing  them  to  be  unusually  high.11  The  court 
cannot  take  judicial  notice  of  the  usual  rate,  nor  determine  it  by 
reference  to  adjudications  in  reported  cases  between  strangers.13 
Where  the  lender  made  a  charge  for  expenses,  the  facts  of  neces- 
sary labor  and  inconvenience,  and  the  state  of  health  affected  there- 
by, and  the  fact  that  the  money  was  previously  safely  invested,  if 
shown  to  have  been  communicated  to  the  borrower  as  the  lender's 
reasons  for  the  charge,  are  competent  in  the  lender's  behalf ;  and 
so  is  the  testimony  of  the  lender  that  the  reservation  was  intended 
as  compensation  for  trouble  and  expense,  and  not  for  the  loan.18 

17.  — act  of  agent  or  co-trustee.'] — If  the  principal  did  not 
take  usury  nor  know  of  its  being  taken,  evidence  that  his  agent, 
without  sanction  from  him,  exacted  a  bonus  upon  the  pretense 


1  Brinckerhoof  v.  Foote,  Hoffm.  291 ;  Ross  v.  Ackerman,  46  N.  Y.  210 ;  Jackson 
v.  Smith,  7  Cow.  717. 

9  Keutgen  v.  Parks,  2  Sandf.  60. 

3  Storer  v.  Coe,  2  Bosw.  661. 

4  Matthews  v.  Coe,  70  N.  Y.  239,  242. 

5  Thomas  v.  Murray,  32  N.  Y.  605,  rev*g  34  Barb.  157 ;  Valentine  V.  Conner,  40 
N.  Y.  248. 

6  See  Quackenbos  v.  Sayer,  62  N.  Y.  344,  affi'g  4  Supm.  Ct.  (T.  <fe  C.)  424,  s.  o.  2 
Hun,  157 ;  Knick.  L.  Ins.  Co.  v.  Nelson,  7  Abb.  New  Cas.  170,  affi'g  13  Hun,  321. 

1  Dunham  v.  Gould,  16  Johns.  367,  affi'g,  as  Dunham  v.  Dey,  13  Id.  40;  Bank  of 
Utica  v.  Wager,  2  Cow.  712 ;  Pratt  v.  Adams,  7  Paige,  615. 
8  Murray  v.  Barney,  34  Barb.  330. 
»  Marvine  v.  Hymers,  12  N.  Y.  223 ;  Internat.  Bk.  v.  Bradley,  19  N.  Y.  245. 

10  Wheeler  v.  National  Bank,  96  U.  S.  (6  Otto),  268. 

11  Seymour  v.  Marvin,  11  Barb.  80,  87. 
"Id. 

»  Thurston  T.  Cornell,  38  N.  Y.  281,  s.  c.  1  Transc.  App.  258. 


ILLEGALITY  OF  CONTRACT.  795 

that  it  was  for  the  principal,  does  not  prove  usury,1  even  though 
the  borrower  believed  the  agent  was  dealing  with  him  as  a  prin- 
cipal.2 The  burden  is  upon  defendant  to  establish  that  the  cred- 
itor was  a  party  to  the  agreement  for  the  bonus,  or  accepted  the 
benefit  of  it.3  If  he  accepted  it,  direct  evidence  that  he  knew 
that  it  came  from  the  borrower  is  not  essential.4 

Where  one  of  several  trustees  is  shown  to  have  exacted  a 
bonus,  the  burden  is  on  defendant  to  show  sanction  by  the  others.5 

Election  to  ratify  usury  will  not  generally  be  presumed  with- 
out evidence.8 

18.  —  inception.'] — "Where  original  want  of  consideration  and 
usurious  transfer  in  inception  is  alleged,  the  question  whether  the 
obligation  had  inception  before  its  transfer  depends  on  whether 
the  transferor  could  have  sued  on  it.7    Evidence  that  there  had 
been  no  intent  to  deliver  and  no  delivery  in  fact,  is  enough  on 
this  point.8    One  who  takes  a  note  at  its  inception  at  a  greater 
discount  than  the  legal  rate,  must  be  conclusively  presumed  to 
have  intended  to  loan,  as  the  transaction  can  have  no  other  char- 
acter.    His  want  of  knowledge  that  the  note  takes  its  inception 
in  his  hands,  is  immaterial.9 

19.  —  declarations  and  admissions.'] — Oral  evidence  is  admis- 
sible to  show  that  one  security  was  given  and  accepted  in  pay- 
ment of  or  substitution  for  another,10  and  for  this  purpose  it  is 
not  essential  to  produce  the  other,11  unless  some  question  arises  on 
its  contents.     Declarations  and  admissions  of  the  party  are  admis- 
sible in  favor  of  the  declarant  or  his  principal,  if  part  of  the  res 
gestcB.™    The  rules  as  to  accounts,  memoranda  and  entries  in  the 
course  of  business,  have  been  already  stated.13 


1  Estevez  v.  Purdy,  66  N.  Y.  446,  rev'g  6  Hun,  46.  See  conflicting  cases  in  29 
Am.  11.  70,  note. 

4  Lee  v.  Chadsey,  3  Abb.  Ct.  App.  Dec.  43. 

8  Guardian  Mut.  L.  Ins.  Co.  v.  Kashaw,  66  N.  Y.  644,  647,  rev'g  3  Hun,  616. 

4  Earle  v.  Hammond,  2  Abb.  N.  C.  368. 

8  Van  Wyck  v.  Walters,  16  Hun,  209;  Stoat  v.  Rider,  12  Hun,  574. 

6  Brackett  v.  Barney,  28  N.  Y.  333. 

7  Eastman  v.  bhaw,  65  N.  Y.  522,  527. 

8  Id.  529. 
»  Id.  530. 

10  Gilbert  v.  Duncan,  29  N.  J.  L.  (5  Dutch.)  133 ;  Duncan  v.  Gilbert,  Id.  521. 

11  Id. 

111  Ripley  v.  Mason,  Hill  &  D.  Supp.  66.  Declarations  to  a  stranger  after  the  bar- 
gain  was  concluded,  and  on  the  evening  of  the  same  day,  no  part  of  the  res  gettet, 
Smith  v.  Webb,  1  Barb.  230. 

13  P.  819,'<fec.  of  this  vol.  For  instances  of  their  application,  see  Bank  of  Utica  v. 
Hillard,  5  Cow.  153;  see,  also.  Id.  419  ;  Churchman  v.  Lewis,  34  N.  Y.  444;  East 
River  Bank  v.  Hoyt,  32  N.  Y.  119,  rev'g  41  Barb.  441 ;  Bank  of  Monroe  v.  Culver, 
2  Hill,  531. 


796    DEFENSES  IMPEACHING  THE  CONTRACT  SUED  ON. 


III.  INCAPACITY  OF  CONTRACTING  PARTY. 

20.  Infancy."] — Infancy,  to  be  admissible,  must  be  pleaded.1 
It  may  be  proved  in  the  modes  stated  in  Chapter  Y.     A  com- 
plaint on  contract  does  not  admit  a  recovery  for  damages  on  evi- 
dence of  defendant's  fraud  in  falsely  representing  that  he  was  of 
age.2    The  burden  is  on  a  defendant  pleading  infancy  by  a  foreign 
law,  to  allege  and  prove  the  foreign  law;3  but  the  court  may  pre- 
sume that  the  law  of  a  sister  State  is  the  same  as  the  common 
law.4 

21.  — new  promise  :  Admissions  and  declarations.'] — A  new 
promise  is  admissible  in  rebuttal,  though  not  alleged.5    Other- 
wise of  a  promise  to  pay  something  else  by  way  of  compromise.6 
If  the  issue  is  upon  a  new  promise  after  defendant  came  of  age, 
an  express  promise  must  be  established,  unless  the  demand  is  for 
necessaries.'    An  explicit  acknowledgment  may  be  such  as  to 
sustain  a  finding  of  an  express  promise.8    The  ratification  should 
be  a  promise  to  a  party  in  interest  or  his  agent,  or  an  explicit  ad- 
mission of  an  existing  liability  from  which  a  promise  may  be  im- 
plied.    It  must  be  equivalent  to  a  new  contract;9  and  it  will  sus- 
tain the  action,  although  the  original  demand  has  been  barred  by 
the  statute.10    In  the  absence  of  evidence  to  the  contrary,  an 
adult,11  making  such  a  promise,  may  be  presumed  to  have  known 
the  law  and  the  facts  necessary  to  establish  his  exemption  from 
legal  liability.12 

If  the  demand  is  for  necessaries,13  the  burden  is  on  the  defend- 
ant to  show  that  during  minority  he  was  properly  supplied  by 
parent  or  guardian,  if  he  rely  on  that.14 

For  the  purpose  of  showing  what  the  original  transaction  was, 


1  Moak's  Van  Santv.  PI.  363.  Contra,  at  common  law.  Wailing  v.  Toll,  9  Johns. 
141.  Infancy  at  time  of  suit,  as  ground  of  abatement,  is  not  matter  for  evidence  at 
the  trial.  The  remedy  is  by  preliminary  motion.  Treadwell  v.  Bruder,  3  E.  D. 
Smith,  596. 

'J  Studwell  v.  Shapter,  64  N.  Y.  249.  Nor  does  an  allegation  of  the  false  repre- 
sentation in  the  reply.  Brown  v.  McCune,  6  Sandf.  224. 

3  Thompson  v.  Ketcham,  8  Johns.  189. 

4  Holmes  v.  Mallett,  1  Morris,  82. 

8  Esselstyn  v.  Weeks,  12  N.  Y.  635;  Dusenbury  v.  Hoyt,  53  Id.  621. 

6  Bliss  v.  Ferryman,  2  111.  (1  Scam.)  484. 

i  Gay  v.  Ballou,  4  Wend.  403;  Millard  v.  Hewlett,  19  Wend.  301. 

8  Bank  of  Silver  Creek  v.  Browning,  16  Abb.  Pr.  272. 

9  Goodsell  v.  Myers,  3  Wend.  479. 

10  Halsey  v.  Reid,  4  Hun,  777.  , 

11  When  to  a  plea  of  infancy  plaintiff  replied  and  proved  a  new  promise;  Held, 
that  the  burden  was  on  the  defendant  to  prove  he  was  still  an  infant,  when  he  mado 
it.     Bigelow  v.  Grannis,  4  Hill,  206 ;  Bay  v.  Gunn,  1  Den.  108 ;  and  see  Hartley  v. 
Wharton,  11  Adol  &  E.  934. 

18  Taft  v.  Sergeant,  18  Barb.  320.     Contra,  Swell's  Cas.  29.     See,  also,  Rawley  V, 
Rawley,  17  Moak's  Eng.  121,  «.;  Ring  v.  Jamison,  2  Mo.  App.  684. 
13  See  page  178  of  this  vol. 
"  Parsons  v  Keys,  43  Tex.  557. 


ILLEGALITY  OF  CONTRACT.  797 

the  acts,  declarations,  and  admissions  of  defendant,  though  made 
before  he  came  of  age,  are  competent  against  him.1  Those  of  his 
parent  or  guardian,  as  to  his  liability,  are  not.3 

22.  Insanity. .] — A  denial  of  the  making  or  delivering  of  the 
contract  does  not  admit  evidence  of  defendant's  unsoundness  of 
mind  in  making  and  delivering.3  An  allegation  of  nnsoundness, 
coupled  with  a  denial  of  having  authorized  any  person  to  make 
the  contract,  and  of  the  making  of  such  a  contract,  only  puts 
sanity  in  issue.4  The  burden  to  establish  insanity  is  on  the  defend- 
ant. The  presumptions  and  modes  of  proof  are  the  same  as  in 
an  action  to  rescind.5 


1  Haile  v.  lillie,  3  Hill,  149;  Ackerman  v.  Runyon,  3  Abb.  Pr.  Ill,  s.  o.  1  Hilt. 
169. 

s  Whart.  Ev.  §  1208. 

8  Dearmond  v.  Dearmond,  12  Ind.  455. 

4  Byrd  v.  Nunn,  26  Weekly  R. 

6  See  page  733  of  this  vol.  For  the  mode  of  proving  what  are  necessaries,  see  page 
178  of  this  vol. 


CHAPTER   LX. 


PAYMENT   OB    OTHER  DISCHARGE. 


I.  PAYMENT. 

1.  Pleading;  and  burden  of  proof. 

2.  Oral  evidence;  res yestce. 
8.  Authority  to  pay. 

4.  Agent's  authority  to  receive. 

6.  —  presumed  from  agency  in  sale. 

6.  —  from  possession  of  security,  Ac. 

7.  Payment  to  assignor. 

8.  —  to  executors,  trustees,  <fec. 

9.  —  to  sheriff. 

10.  Payment  by  mail. 

11.  —  by  check  or  draft. 

12.  —  by  note,  <fcc.,  of  debtor  or  third 

person. 

13.  —  by  obligation  of  joint  debtor, <fcc. 

14.  —  by  delivery  of  property. 

15.  Payment  of  collateral. 

16.  Receipts. 

17.  Part  payment,  in  full. 

18.  Admissions;    entries    and    memo- 

randa. 

19.  Possession  of  instrument ;  indorse- 

ments. 

20.  Presumption  of  payment  from  sub- 

sequent transactions. 

21.  Circumstantial  and   corroborative 

evidence. 

22.  Application  by  the  debtor. 

23.  —  by  the  creditor. 

24.  —  by  the  court. 


I.  PAYMENT — continued. 

25.  Presumption  of  payment  from  lapse 

of  time. 

II.  ACCORD    AND    SATISFACTION. 

26.  Mode  of  proof,  and  effect. 

III.  ACCOUNT  STATED. 

27.  Mode  of  proof,  and  effect. 

IV.  COMPROMISE  AND  COMPOSITION. 

28.  Mode  of  proof,  and  effect. 

V.  TENDER. 

29.  Necessity,  and  mode  of  proof. 

VI.  RELEASE. 

30.  Mode  of  proof,  and  effect. 

31.  Oral  evidence. 
3^.  Impeaching. 

VII.  SURETYSHIP    AND    MODIFICATION    OF 

CONTRACT. 

33.  Defendant  a  surety. 

34.  Modification. 

VI H.  DISCHARGE. 

35.  In  bankruptcy. 

36.  —  impeaching. 

37.  In  insolvency. 

38.  New  promise. 


I.  PAYMENT. 

Pleading"  and  burden  of 'proof. .] — Payment1  is  not  admissi- 
ble in  evidence  unless  pleaded.2  A  defendant  pleading  payment, 
or  tender  and  readiness  to  pay,  has  the  burden  of  proof.3  And  if 


1  Even  though  after  the  commencement  of  the  action.  Hawes  v.  Woolcock,  30 
Wis.  213. 

4  Greenl.  Ev.  473,  §  516 ;  Baker  v.  Kistler,  13  Ind.  63.  Except,  perhaps,  where  the 
complaint  is  a  mere  general  allegation  of  indebtedness.  Marley  v.  Smith,  4  Kans. 
183.  Even  part  payment  is  not  admissible  in  mitigation,  unless  pleaded  (McKyring  v. 
Bull,  16  N.  Y.  297),  and  may  not  be  available  though  p.-oved  by  plaintiff  (Seward  v. 
Torrence,  5  Supm.  Ct.  [T.  &  C.]  323),  unless  the  existence  of  some  payment  is  con- 
ceded by  the  complaint.  Quin  v.  Lloyd,  41  N.  Y.  349,  rev'g  1  Sweeny,  253. 
But  a  specific  denial  of  a  specific  allegation  of  non-payment,  may  be  equivalent  to 
an  allegation  of  payment.  Van  GiesftQ  v.  Van  Giesen,  10  N.  Y.  316,  affi'g  12  Barb. 
620. 

3  North  Pennsylvania  R.  R.  Co.  v.  Adams,  54  Penn.  St.  94 ;  Gernon  v.  McCan, 
23  La.  Ann.  84. 

[798] 


PAYMENT.  '  799 

the  payments  pleaded  are  specified,  evidence  of  other  payments 
is  not  admissible1  without  amendment. 

A  general  allegation  of  payment  admits  evidence  of  payment 
in  cash  or  in  any  other  mode/  and  by  any  agency,8  which  in  law 
amounts  to  satisfaction  by  the  transfer  of  an  equivalent ;  but 
not. other  modes  of  avoidance,4  such  as  taking  other  security  and 
releasing  it  again,  to  defendant's  prejudice  ;5  nor  a  set-off.6 

Under  an  allegation  of  payment  a  guarantor  or  surety  may 
show  any  specific  payment  or  even  an  appropriation  by  the  prin- 
cipal of  property  accepted  in  payment  by  the  creditor,  but  not  a 
set-off  or  counter-claim  in  favor  of  the  principal,  except  under 
circumstances  appealing  to  the  equitable  consideration  of  the 
court.7 

2.  Oral  evidence  •  Res  gestce.'} — Payment8  in  money  may  be 
proved  by  an  eye-witness,  without  producing  or  accounting  for  a 
receipt  passed,9  but  the  receipt  is  then  competent  as  part  of  the 
res  gestce.10  A  receipt  for  other  property  in  payment,  if  such  as 
to  embody  a  contract,  should  be  produced  or  accounted  for.u 
Delivery  of  money,  without  more,  is  presumed  to  be  in  payment 
of  some  debt.  The  rule  as  to  declarations  and  admissions  of 
agents  has  been  already  stated.12 

In  applying  the  rule  of  the  res  gestce™  declarations  and  entries 
made  at  the  time  and  place  of  paying  and  before  the  transaction 
is  fully  closed  and  other  scenes  intervene — as,  for  instance,  a  re- 
quest for  and  refusal  of  a  receipt  with  the  reason  given,14  are 
competent ;  but  previous  declarations  to  a  third  person,  of  intent 
to  obtain  money  for  the  purpose  of  paying,15  or  declarations  to  a 
third  person  after  sending  money,  of  having  sent  a  certain 


1  Hoddy  v.  Osborn,  9  Iowa,  517. 

*  Farmers'  <fe  Citizens'  Bank  v.  Sherman,   33   N.  Y.   69,   affi'g   6   Bosw.    181 ; 
Moorehouse  v.  Northrop,  33  Conn.  380.  . 

8  Wolcott  v.  Smith,  15  Gray,  537.  Thus  the  fact  of  the  delivery  of  property  on 
an  agreement  to  sell  and  apply  the  proceeds  to  payment,  ifec.  is  admissible.  Haggles 
v.  Gatton,  50  111.  412.  So  is  an  account  stated  between  plaintiff  and  defendant  and 
payment  of  the  balance.  Rose.  N.  P.  655,  citing  Callander  v.  Howard,  10  C.  B.  290  ; 
L.  J.  19  C.  P.  312. 

4  Walters  v.  Washington  Ins.  Co.  1  Iowa,  404,  409. 

5  Ilarley  v.  Kirlin,  45  Penn.  St.  49,  58. 
«  Green  v.  Storm,  3  Sand.  Ch.  305. 

1  Coe  v.  Cassidy,  6  Daly,  242,  and  cases  cited. 

8  Even  of  a  judgment  (Vidiclir  v.  Cousin,  6  La.  Ann.  489),  or  a  mortgage  (Mauzey 
v.  Bowen,  8  Ind.  198). 

•  Keene  v.  Meade,  3  Pet.  1,  7,  affi'g  Meade  v.  Keane,  3  Crnnch  C.  Ct.  51.    Except, 
perhaps,  in  the  case  of  payments  to  public  officers  required  by  law  to  give  receipts. 
See  pp.  260,  261  of  this  vol. 

10  Van  Keuren  v.  Corkina,  66  N.  Y.  77. 

11  See  Townsond  v.  Atwater  ;  5  Day,  298. 

18  Pages  44,  241 .  276  and  48')  of  this  vol.     Jenks  v.  Burr,  56  111.  450. 

13  See  pp.  44,  245,  2fi4  of  this  vol.  and  Strange  v.  Donohue,  4  Ind.  327. 

14  Fifield  v.  Richardson,  34  Vt.  410,  418. 

18  Crounse  v.  Fitch,  1  Abb.  Ct.  App.  Dec.  475,  and  eee  Wilson  v.  Pope,  37  Barb, 
821. 


80Q  PAYMENT  OR  OTHER  DISCHARGE. 

amount,1  are  not.  The  rule  of  the  res  gestce  admits  declarations 
and  entries  not  brought  to  the  knowledge  of  the  party  against 
whom  they  are  offered,  if  offered,  not  to  show  the  fact  of  pay- 
ment, but  the  party's  intention  or  application  of  a  payment,  the 
fact  of  payment  and  mutuality  of  intent  being  otherwise  proved.3 

3.  Authority  to  pay.] — Authority  of  the  person  paying  need 
not  be  proved.3 

4.  Agents  authority  to  receive.*] — In  respect  to  a  debt,  due  in 
the  ordinary  course  of  business,  evidence  of  payment  made  dur- 
ing business  hours  to  one  found  in  plaintiff's  counting-room,  ap- 
parently intrusted  with  the  conduct  of  business  there,  is  sufficient,5 
and  is  ordinarily  conclusive.6 

An  agent's  authority  to  receive,  even  payments  expressly 
stipulated  to  be  paid  to  the  principal,  may  be  shown  by  evidence 
of  recognition  by  the  principal.7  But  special  authority  in  each 
case  is  not  evidence  of  general  authority.8  Evidence  of  the 
principal's  admission  that  the  money  was  properly  paid  to  the 
alleged  agent  is  primary  and  sufficient  evidence  of  the  agent's 
authority.9  Recognition  of  the  payment  by  receiving  the  money 
from  one  assuming  to  be  an  agent  without  authority,  is  not  recog- 
nition of  his  authority  to  give  a  receipt  in  full,  or  an  admission 
that  no  more  was  due  than  was  paid.10  In  an  action  against  an 
individual,  evidence  that  he  had  a  partner  interested  in  the  con- 
tract sued  on,  lets  in  a  receipt  proven  to  have  been  signed  by 
the  partner  in  the  firm  name."  Payment  to  one  of  several  joint 
creditors  may  be  proved  if  he  was  the  agent  of  the  others.13  Off- 
setting the  debt  against  an  agent's  indebtedness  is  not  payment,18 
even  though  good  faith  appear.14 

5.  — presumed  from  agency  in  sale."] — An  agent  selling  for 
an  unknown  principal  is  presumed  to  have  authority  to  receive 
payment  of  the  price.15 


1  Young  v.  Commonwealth,  28  Penn.  St.  601,  604. 

2  This  I  deem  the  sound  rule,  though  some  authorities  seem  adverse.     See  pp. 
245,  n.  4,  and  264,  n.  2,  of  this  vol. 

3  Sanford  v.  McLean,  3  Paige,  117;  and  see  Tacey  v.  Irwin,  18  "Wall.  549,  551 ;  9 
Id.  326 ;  Gernon  v.  McCan,  23  La.  Ann.  84.     Otherwise,  if  he  did  not  pay  in  satisfac- 
tion, or  the  payment  was  revoked.     Rose.  N.  P.  658,  659. 

4  For  other  rules  as  to  evidence  of  authority  to  receive  payment,  see  pages  241, 
252,  275,  279,  480,  <Jrc.  of  this  voL 

6  Barrett  v.  Deere,  M.  «fe  M.  200,  Ld.  TENTERDEN,  C.  J. 

•  Barrett  v.  Deere  (above);  Rose.  N.  P.  657. 

T  Bronson's  Exr.  v.  Chappell,  12  Wall.  681,  683. 

8  Smith  v.  Kidd,  68  N.  Y.  130,  138. 

»  Doyle  v.  St.  James  Church,  7  Wend.  178. 

10  Sewanee  Mining  Co.  v.  Best,  3  Head  (Tenn.),  701. 

11  Shepard  r.  Ward,  8  Wend.  542. 

14  Wright  v.  Ware,  68  Geo.  150;  and  see  pp.  188,  <fec.  of  this  vol.  and  as  to  part, 
ners,  218-22,  and  Homer  v.  Wood.  11  Cush.  62. 

13  Henry  v.  Marvin,  3  E.  D.  Smith  71 ;  Pearson  v.  Scott,  38  L.  T.  R.  N.  S.  747. 

14  Underwood  v.  Nicholls,  17  C.  B.  239. 
ls  Henry  v.  Marvin  (above). 


PAYMENT.  801 

One  selling  for  a  known  principal  is  not  presumed,  from  that 
fact  alone,  to  nave  authority  to  receive  payment x  unless  he  is 
permitted  and  able  to  deliver  the  thing  sold,  in  which  case  his 
authority  must  be  presumed,  in  the  absence  of  evidence  to  the 
contrary.2  Such  authority  cannot  be  presumed  for  the  purpose 
of  a  payment  before  due/  A  local  usage,  allowing  mere  selling 
brokers  to  receive -payment,  is  not  admissible  for  the  purpose  of 
showing  authority  in  the  broker  to  receive  such  payment.* 

6.  — from  possession  of  security,  <&c.~] — Possession  of  a  nego- 
tiable security  drawn  or  indorsed  so  as  to  be  in  effect  payable  to 
bearer  is  presumptive  evidence  of  authority  to  receive  payment. 
Mere  possession  of  a  negotiable  security  so  expressed  or  in- 
dorsed as  to  be  payable  to  another  than  the  possessor,5  or  of  a  non- 
negotiable  security,  such  as  a  bond  and  mortgage,6  is  not  alone 
sufficient  to  authorize  an  inference  of  authority.  Possession, 
together  with  the  fact  that  the  one  in  possession  originally  took 
the  security  for  the  owner,  or  negotiated  and  made  the  loan  for 
which  the  security  was  taken,  and  was  thereafter  intrusted  by 
the  owner  with  its  possession,  is  sufficient.7  In  such  cases  it  is 
incumbent  upon  the  debtor  who  makes  payments  to  the  agent,  to 
show  that  the  securities  were  in  his  possession  on  each  occasion 
when  the  payments  relied  on  were  made.8 

The  presumption  of  authority  terminates  upon  the  principal's 
death.9  Without  the  custody  of  the  obligation,  neither  the  fact 
that  the  assumed  agent  was  the  one  through  whom  the  loan  was 
made  or  the  security  taken,  nor  the  fact  that  he  had  usually  been 
employed  in  the  receipt  of  money  for  the  creditor,  is  sufficient 
evidence  of  authority.10  Possession,  with  authority  to  receive  in- 
terest, does  not  imply  authority  to  receive  principal.11  Authority 
to  receive  payment  does  not  authorize  the  agent  to  receive  it  be- 
fore it  is  due.12  Authority  to  examine  title  does  not  imply  au- 
thority to  receive  money  to  pay  off  liens.13  Authority  to  foreclose 
does  not  imply  authority  to  receive  part  payment  nor  to  receive 
and  collect  notes  on  time.14 


1  Higgins  v.  Moore,  84  N.  Y.  417,  rev'g  6  Bosw.  344. 

*  Wbiton  v.  Spring,  74  N.  Y.  169. 
>  Id.     Contra,  Rose.  N.  P.  657. 

4  Biggins  v.  Moore  (above) ;  Pearson  v.  Scott,  38  L.  T.  R.  N.  S.  747. 

•  Doubleclay  v.  Kress,  50  N.  Y.  410,  rev'g  60  Barb.  181.     Contra,  eee  2  GreenL 
Ev.  (13th  ed.)52. 

«  Id;  Smith  v.  Kidd,  68  N.  Y.  130,  187. 

7  Doubleday  v.  Kress  (above). 

8  Smith  v.  Kidd,  68  N.  Y.  130,  137. 

9  Megary  v.  Funtis,  6  Snndf.  376. 

10  Id.  139 ;  Rose.  N.  P.  667. 

11  Doubleday  v.  Kress,  50  N.  Y.  410,  rev'g  60  Barb.  181. 
»  Smith  v.  Kidd,  68  N.  Y.  130.  141. 

13  Josephthal  v.  llcyman,  2  Abb.  N.  C.  22. 

14  Heyman  v.  Beringer,  1  Abb.  N.  C.  315.     According  to  some  authorities  the 
implied  powers  of  an  attorney  for  a  non-resident  and  absent  creditor,  are  more  ex- 

51 


802  PAYMENT  OR  OTHER  DISCHARGE. 

7.  Payment  to  assignor.'] — If  an  assignment  of  a  mortgage 
remain  unrecorded,   a   payment  on  account  meanwhile  to  the 
assignor  may  be  proved ;  and  the  fact  that  the  payment  was  in 
advance,  or  that  the  debtor  did  not  call  for  production  of  the 
securities,  is  not  evidence  of  bad  faith.1    In  case  of  a  final  satis- 
faction, the  omission  to  call  for  the  securities  is  a  suspicious  cir- 
cumstance which  requires  evidence  that  the  payment  was  made 
under  misrepresentation,  or  other  evidence  of  good  faith.2 

8.  —  to  executors,  trustees,  <&c.~\ — Evidence  of  a  payment  to 
one  of  several  co-executors  or  co-administrators,  and  a  release, 
receipt,  satisfaction  piece  or  the  like  executed  by  one,  are  com- 
petent against  the  estate.3    Otherwise  of  co-trustees.4 

In  case  of  payment  to  an  executor,  administrator  or  other 
trustee,  evidence  that  it  was  made  actually  and  in  good  faith,  and 
that  the  trustee  was  authorized  to  receive  it,  is  sufficient  without 
evidence  as  to  the  application  of  the  moneys.5  In  case  of  pay- 
ment on  a  written  security,  it  is  not  necessary  to  show  that  the 
trustee  indorsed  the  payment  on  the  bond,  or  paid  the  money 
to  the  cestui  que  trust.6 

9.  — to  sheriff.'] — A  debtor  who  has  paid  the  debt  to  the 
sheriff,  upon  an  execution  against  his  creditor,  cannot,  when  the 
creditor  sues  him,  prove  the  payment  merely  by  the  sheriff's  re- 
ceipt and  the  execution.     He  must  prove  the  judgment  by  the 
record;  the  transcript  from, the  office  of  the  clerk  of  a  county  in 
which  the  judgment-roll  was  not  filed,  is  not  sufficient.7    The 
mere  issue  and  delivery  of  an  execution,  is  not,  prima  facie,  evi- 
dence of  the  payment  of  the  judgment  on  which  it  is  issued.8    A 
levy  on  land  raises  no  presumption  of  satisfaction  of  the  judg- 
ment.    A  levy  on  chattels,  is  presumptive  evidence  of  satisfac- 
tion only  when  the  execution  has  been  so  used  as  to  change  the 
title  of  the  goods,  or  in  some  way  to  deprive  the  debtor  of  his 
property.9    The  seizure  by  the  sheriff,  upon  attachment,  of  goods 
sufficient  to  pay  the  judgment  is  not,  alone,  presumed  to  be  satis- 
faction.    The  burden  is  on  the  debtor  to  show  the  application  of 
the  goods  to  the  judgment.10 


tensive  than  those  implied  in  other  cases.  See  Glass  v.  Thompson,  9  B.  Monr.  (Ky.) 
235;  Hopkins  v.  Willard,  14  Vt.  474;  Kimball  v.  Perry,  15  Id.  414;  Heyman  v. 
Beringer,  1  Abb.  N.  C.  315,  316,  note. 

1  Van  Keuren  v.  Corkins,  66  N.  Y.  77. 

8  Brown  v.  Blydenburgh,  7  N.  Y.  141,  and  see  Purdy  v.  Huntington,  42  Id.  334  ; 
Faster  v.  Beals,  21  Id.  247  ;  Kellogg  v.  Smith,  26  Id.  18,  and  page  11  of  this  voL 

8  3  Abb.  N.  Y.  Dig.  new  ed.  345. 

4  As  to  payments  to  and  receipts  by  other  trustees,  see  pp.  235,  817  of  this  vol. 

•  1  N.  Y.  R.  S.  730  (2  Id.  6th  ed.  1, 110),  §  66 ;  Champlin  v.  Haight,  10  Paige,  274. 
6  Hadley  v.  Chapin,  11  Paige,  245. 

'  Handly  v.  Greene,  15  Barb.  601.  Compare  Code  Pro.  §  293.  As  to  payment 
on  attachment  at  suit  of  a  third  person,  compare  Ross  v.  Pitts,  39  Ala.  N.  S.  606, 
and  Flanagan  v.  Mechanics'  Bank.  54  Penn.  St.  398. 

•  Runyan  v.  Weir,  8  N.  J.  L.  (3  Hals.)  286. 

»  United  States  v.  Dashiel,  3  Wall.  688,  and  cas.  cit. 
"  Maxwell  v.  Stewart,  22  Wall.  77. 


PAYMENT.  803 

10.  Payment  ~by  mail.'] — The  burden  of  proof  of  payment  of 
a  debt,  is  not  sustained  by  proof  that  a  letter,  even  though  reg- 
istered,1 containing  the  requisite  amount,  directed  to  the  creditor, 
was  duly  deposited  in  the  post  office.2    The  debtor  must  also 
either  show  that  the  creditor  authorized  this  mode  of  remittance, 
by  express  assent  or  direction,  or  a  usage  and  course  of  dealing 
from  which  such  assent  or  direction  may  be  fairly  inferred — in 
which  case  due  mailing  is  conclusive8 — or  he  must  give  evidence 
of  circumstances  tending  to  show  receipt  by  the  creditor,  in 
which  case  the  question  may  go  to  the  jury.4    Evidence  that  in  a 
previous  instance  money  was  sent  by  mail  without  objection,  is 
not  enough  to  show  authority,  nor  is  a  mere  letter  by  mail  re- 
questing a  remittance.5    The  post  master's  entries  are  competent 
as  tending  to  show  the  receipt  of  a  registered  letter,6  but  are  not 
conclusive,7  even  as  to  date.8 

11.  —  T)y  check  or  draff] — A  check  or  draft  drawn  by  defend- 
ant,9 payable  to  the  order  of  the  plaintiff,  and  shown  to  have  been 
paid  by  the  bank  or  drawee  to  the  plaintiff ;  or  indorsed  by  him 
and  shown  to  have  been  paid,  without  other  evidence  that  it  was 
paid  to  him  ;  is  presumptive  evidence  of  payment  of  the  amount 
by  defendant  to  plaintiff,  without  evidence  that  plaintiff  re- 
ceived the  paper  from  defendant.10    If  the  paper  was  payable 
to  bearer,  it  must  be  shown  that  it  was  delivered  to  plaintiff, 
or  that  he  received  the  money  or  value  on  it.11     Payment  of 
money  being  thus  shown,  it  is  presumed  to  have  been  in  satis- 
faction of  an  existing  debt  j12  and  in  the  absence  of  other  proof 
may  be  presumed  to  apply  to  a  debt  of  the  same  amount,  in 
suit.13 

Mere  delivery  of  a  check,14  does  not  operate  as  payment  of  a 
previous  debt,  and  a  receipt  given  on  such  delivery,  acknowledg- 


1  First  Nat.  Bank  of  Bellefonte  v.  McManigle,  69  Penn.  St.  166.  s.  c.  8  Am.  R. 
286. 

s  Gurney  v.  Howe,  9  Gray,  404,  407;  Crane  v.  Pratt,  12  Gray  (Mass.),  348. 

3  Gurney  v.  Howe  (above). 

4  First  Nat.  Bank  of  Bellefonte  v.  McManigle,  69  Penn.  St.  156,  e.  o.  8  Am.  R. 
236 ;  Waydell  v.  Velie,  1  Bradf.  277. 

6  Burr  v.  Sickles,  17  Ark.  428;  Morton  v.  Morris,  31  Geo.  878.     But  see  Town- 
Bend  v.  Henry,  9  Rich.  (S.  C.)  818. 

6  Gurney  v.  Howe  (above). 

7  Punlop  v.  Munroe,  7  Cranch,  242,  270,  affi'g  1  Cranch  C.  Ct.  636. 

8  Gurney  v.  Howe  (above). 

9  So  of  a  check  made  by  his  wife  and  indorsed  by  him.    Murphy  v.  Brick,  33 
Penn.  St.  236. 

10  Mountford  v.  Harper,  16  M.  &  W.  825 ;  Egg  v.  Barnett,  3  Esp.  196.     Contra, 
Bunting  v.  Allen,  18  N.  J.  L.  299,  unsound  because  payment  without  more  is  pre- 
sumed to  be  in  satisfaction  of  debt. 

11  Lowe  v.  McClery,  9  Cranch  C.  Ct.  254 ;  p.  245  of  this  vol. 
18  Masser  v.  Bowen,  29  Penn.  St.  128. 

13  Murphy  v.  Brick,  33  Id.  235. 

14  Unless  drawn  upon  the  creditors  themselves.     Pratt  v.   Foote,  9  N.  Y.  468 ; 
Comm'l  Bk.  of  Penna.  v.  Union  Bk.  of  N.  Y.  11  N.  Y.  203. 


804  PAYMENT  OR  OTHER  DISCHARGE. 

ing  the  receipt  of  money,  if  given  by  mere  agents  for  collection, 
adds  nothing  to  the  effect  01  such  delivery,  and  is  open  to  parol 
evidence  as  to  its  real  import.1  If  defendant  relies  upon  laches  of 
his  creditor  in  demanding  payment  or  giving  notice  of  dishonor  of 
a  check  given  by  the  debtor  in  payment,  the  burden  of  proof  is 
on  the  defendant  to  show  such  laches.8  In  the  absence  of  express 
agreement,  a  check  though  drawn  by  the  debtor  in  lieu  of  money 
at  the  request  of  the  creditor  and  delivered  in  exchange  for  a  re- 
ceipt of  payment,  does  not  amount  to  payment,  unless  the  check 
is  actually  paid  or  clearly  would  have  been  paid  if  duly  presented. 
If  remaining  unpaid  it  is  not  enough  for  the  debtor  to  show  that 
it  might  probably  have  been  collected.3  If  the  draft  or  check  of 
the  debtor,  drawn  on  a  third  person,  is  expressly  received  in  full 
payment,  the  burden  is  on  the  plaintiff  to  show  diligence  in  ob- 
taining payment,  and  if  not  paid,  notice  of  non-payment ;  or  he 
must  excuse  the  non-presentment  and  produce  the  bill  on  the  trial 
to  be  cancelled.4 

Other  rules  as  to  proving  payment  of  negotiable  paper,5  or  b 
the  delivery  and  acceptance  of  negotiable  paper,6  have  been 
ready,  stated. 

12.  —  T)y  note,  &c.,  of  debtor,  or  third  person.] — Defendant, 
in  proving  the  debt  to  have  been  paid  by  the  transfer  of  securi- 
ties need  not  produce  the  securities,7  unless  he  desires  to  show 
their  contents  or  tenor. 

Negotiable  paper  of  the  debtor,8  or  of  his  agent,9  or  of  either  of 
several  joint-debtors,10  or  the  negotiable  paper  of  any  other  person,11 
or  a  draft  or  order  of  the  debtor  on  a  third  person,12  taken  for  an 
antecedent  debt,13  is  presumed  not  to  have  been  accepted  in  pay- 
ment, but  only  as  conditional  payment,  suspending  the  right  of 
action. 

The  burden  is  on  defendant  to  show  that  it  was  given  and  re- 


1  Bradford  v.  Fox,  38  N.  Y.  289,  reVg  16  Abb.  Pr.  61,  s.  c.  39  Barb.  203;  B.  P. 
Taylor  v.  Wilson,  11  Mete.  (Mass.)  44. 
8  Id. 

3  Syracuse,  <fec.  R.  R.  Co.  v.  Collins,  1  Abb.  New  Cas.  47. 
«  Dayton  v.  Trull,  23  Wend.  345. 
B  Page  446  of  this  vol. 
•  Page  331  of  this  vol. 

7  Daniel  v.  Johnson,  29  Geo.  207:  Morrison  v.  Myers,  11  Iowa,  638. 

8  The  Kimball,  3  Wall.  37.    Acceptance  of  the  debtor's  non-negotiable  promise  does 
not  even  suspend  the  remedy  unless  it  is  founded  upon  a  new  consideration.     Geller 
T.  Seixas,  4  Abb.  Pr.  103. 

9  P.  331,  note  11. 

10  Nightingale  v.  Chafee,  11  R.  I.  609,  s.  c.  23  Am.  R.  631. 

«  Vail  v.  Foster,  4  N.  Y.  812. 

"  Haines  v.  Pearce,  41  Md.  221,  231. 

13  Gibson  v.  Tobey,  46  N.  Y.  637.  For  the  rule  as  to  presumption  on  taking  note 
of  a  debtor  for  price  of  goods  sold,  see  p.  331.  In  those  jurisdictions  Avhere  the  pre- 
sumption is  the  other  way,  the  presumption  is  not  conclusive,  and  may  be  repelled 
by  the  circumstances  of  the  transaction,  even  without  extrinsic  evidence.  3  Wall.  37, 
46,  citing  Butts  v.  Dean,  2  Mete.  (Mass.)  76. . 


PAYMENT.  805 

ceived  as  payment,1  though  it  is  otherwise  of  an  obligation  of  a 
third  person  transferred  at  the  time  of  the  creation  of  the  debt.2 
Even  when  an  express  agreement  is  proved,  if  the  paper  be  that 
of  the  debtor,  it  does  not  merge  or  extinguish  the  demand.3  Ac- 
ceptance of  the  negotiable  promise  of  a  third  person,4  or  of  the 
debtor  and  a  third  person  jointly5  on  an  agreement  that  it  is  to 
be  satisfaction,  extinguishes  the  original  debt.6  On  the  question 
whether  a  security  transferred  was  accepted  as  absolute  payment 
or  only  as  a  security,  the  value  of  the  security  compared  with  the 
debt  is  relevant.7 

Securities  shown  to  have  been  received  in  either  way  must  be 
produced,  or  accounted  for  by  plaintiff,  in  order  to  enable  him  to 
recover.  The  presumption  is  that  they  were  duly  paid,  or  would 
have  been  by  use  of  due  diligence.8  In  case  of  the  note  of  the 
debtor,  or  such  of  several  notes  as  remain  unpaid,9  it  is  enough  to 
produce  them  at  the  trial  for  cancellation.10  Where  negotiable 
paper  does  not  amount  to  payment  within  these  rules,  it  may  be 
shown  to  be  at  least  conditional  payment,  by  evidence  that  the 
creditor  transferred  it  and  that  it  is  outstanding  in  the  hands  of 
others.11 

Bank  notes  or  other  negotiable  paper  although  paid  in  good 
faith,  supposing  them  to  be  genuine,1^  or  supposing  the  maker  to 
have  been  solvent,  may  be  shown  to  have  been  worthless  or  un- 
current,  if  the  receiver  was  ignorant  of  the  fact  at  the  time  of 
taking  them,13  and  has  not  been  guilty  of  laches  in  returning 
them.14  The  creditor  cannot  avoid  the  effect  of  payment  by  new 
security,  by  evidence  that  the  security  was  illegal  by  reason  of 
usury  taken  by  him,  although  he  might  take  advantage  of  usury 
proved  by  the  debtor.15 

1  Nightingale  v.  Chafee,  11  R.  I.  609,  s.  c.  23  Am.  R.  631  ;  Noel  v.  Murray,  13 
N.  Y.  167;  Smith  v.  Applegate,  1  Daly,  91 ;  Crane  v.  McDonald,  45  Barb.  354. 

s  Youngs  v.  Stahelin,  34  N.  Y.  258. 

8  Cole  v.  Sackett,  1  Hill,  516;  1843,  Waydell  v.  Luer,  5  Id.  448;  and  see  Hill  v. 
Beebe,  13  N.  Y.  556. 

4  Booth  v.  Smith,  3  Wend.  C6;  Kellogg  v.  Richards,  14  Wend.  116. 

8  N.  Y.  State  Bank  v.  Fletcher,  5  Wend.  85. 

6  But  evidence  of  canceling  the  new  security,  is  competent  to  show  reviver  of  the 
original  debt.  Westcott  v.  Keeler,  4  Bosw.  564. 

1  Wallis  v.  Randall,  16  Hun,  33. 

8  Dayton  v.  Trull.  23  Wend.  845. 

9  Lyman  v.  Bank  of  United  States,  12  How.  U.  S.  225,  affi'g  I  Blatchf.  297;  20 
Vt.  666. 

10  Armstrong  v.  Cushney,43  Barb.  340;  Central  City  Bank  v.  Dana,  32  Barb.  296', 
Armstrong  v.  Tuffts,  6  Barb.  432;  Johnston  v.  Jones,  4  Barb.  369.     Otherwise, 
where  a  transferee  has  recovered  judgment  on  the  note.     Teaz  v.  Chrystie,  2  E.  D. 
Smith,  621,  s.  c.  2  Abb.  Pr.  109.     Whether,  in  case  of  a  note  of  a  third  person,  it  is 
neces-ary  to  prove  an  offer  to  return  made  before  action,  compare  with  these  cases, 
Hoopes  v.  Strasburger,  37  Md.  890,  s.  c.  11  Am.  R.  638. 

11  See  Battle  v.  Coit,  26  N.  Y.  404,  406,  and  cas.  cit 
19  Markle  v.  Hatfield,  2  Johns.  455. 

13  Ontario  Bank  v.  Lightbody,  13  Wend.  101. 

14  Kenny  v.  First  Nat.  Bk.  of  Albany,  50  Barb.  112. 
"  La  Farge  v.  Herter,  9  N.  Y.  241. 


806  PAYMENT  OR  OTHER  DISCHARGE. 

13.  —  by  obligation  of  joint  debtor,  &c.~\ — The  individual  note 
of  one  of  two  joint  debtors  or  partners  will  not  operate  as  pay- 
ment of  the  joint  debt,  unless  expressly  received  as  such.1  Evi- 
dence that  it  was  receipted  for  as  cash,2  or  that  it  was  accompa- 
nied by  a  sealed  security,8  or  that  judgment  was  subsequently 
recovered  on  it,4  is  not  enough.  Evidence  that  a  security 
given  by  one  partner  or  joint  debtor,  was  expressly  accepted  as 
payment,  is  competent  to  show  exoneration  of  the  others.^ 

"14.  — by  delivery  of  property. .] — The  'delivery  of  property, 
other  than  money,  by  the  debtor  to  the  creditor,  is  not  presumed 
as  payment  rather  than  as  security.6 

15.  Payment  of  collateral.'] — Payment  of  a  collateral  is  pre- 
sumptive evidence  of  a  payment  on  the  principal.7 

Payment  of  the  principal  security  is  presumptive  evidence  of 
the  release  of  the  collateral,  unless  equity  requires  its  survival.8 

Evidence  that  plaintiff  transferred  collaterals  held  by  him, 
without  evidence  of  the  terms  of  transfer,  raises  a  legal  presump- 
tion in  the  debtor's  favor  that  he  transferred  them  absolutely  and 
without  recourse,  and  received  the  full  amount  due  on  their  face, 
or  elected  to  take  them  at  that  sum  in  satisfaction.9 

16.  J2eceipts.~\ — If  the  contents  or  mode  of  signature  of  a  re- 
ceipt are  to  be  proved,  it  must  be  produced  or  accounted  for,  BO 
as  to  let  in  secondary  evidence.10    A  receipt  remaining  in  the  cred- 
itor's possession  (if  separate  from  the  instrument)  is  not,  without 
explanation,  evidence  that  the  payment  acknowledged  in  it  was 
made.11    The  suppression  of  some  of  a  series  of  receipts  admitted 
to  be  in  possession  of  the  party  who  produces  the  others,  is  evi- 
dence that  the  receipts  withheld  afford  inferences  unfavorable  to 
that  party  who  withholds  them.13    Neither  a  simple  unsealed  re- 


1  Claflin  v.  Ostrom,  54  N.  Y.  581 ;  King  v.  Lowry,  20  Barb.  632.  Even  though 
the  note  was  that  of  the  continuing  parties  given  on  the  retiring  of  the  defendant, 
•who  relies  on  it  as  payment.  Nightingale  v.  Chafee,  11  R.  I.  609,  s.  c.  23  Am.  R. 
531.  Evidence  that  it  was  taken  in  payment  with  knowledge  of  an  agreement  be- 
tween the  partners  that  the  maker  assumed  the  debt,  discharges  the  others.  Mil- 
lerd  v.  Thorn,  15  Abb.  Pr.  N.  S.  371,  s.  c.  56  N.  Y.  402. 

2Muldon  v.  W-hitlock,  1  Cow.  290,  306;  Vernam  v.  Harris,  1  Hun,  451,  s.  c.  8 
Supm.  Ct.  (T.  <fe  C.)  483.  Contra,  Palmer  v.  Priest,  1  Sprague,  512.  A  higher  secu- 
rity taken  from  one  partner  individually,  is  presumed  taken  as  collateral.  Nicholson 
v.  Leavitt,  4  Sandf.  252.  Compare  Hoskinson  v.  Elliot,  62  Penn.  St.  393. 

3  Rose.  N.  P.  390,  cit.  Ansell  v.  Baker,  15  Q.  B.  20. 

4  Claflin  v.  Ostrom  (above).    Compare  paragraph. 
8  Macklin  v.  t'rutcben,  6  Bush,  401. 

6  Perit  v.  Pittfield,  5  Rawle,  166,  and  see  Dudgeon  v.  Haggart,  17  Mich.  278. 

7  Prouty  v.  Eaton,  41  Barb.  409 ;  Hunt  v.  Nevers,  15  Pick.-  500,  504. 

8  McGiven  v.  Wheelock,  7  Barb.  22. 

9  Hawks  v.  Hinchcliff,  17  Barb.  492. 

10  Romayne  v.  Duane,  3  Wash.  C.  Ct.  246. 

11  Nelson  v.  Boland,  37  Mo.  432. 

15  James  v.  Biou,  2  Sim  &  Stu.  600,  607.  Or,  perhaps  more  strictly,  should  be  said 
to  support  the  most  unfavorable  construction  that  other  evidence,  actually  adduced, 
will  properly  bear. 


PAYMENT.  807 

ceipt,1  even  though  official,8  nor  the  usual  receipt  for  payment  of 
purchase  money  contained  in  a  sealed  conveyance,8  is  conclusive 
evidence  of  the  payment  acknowledged  in  it.  And  it  may  be  im- 
peached or  avoided,  although  plaintiff  has  not  alleged  the  facts  he 
offers  in  evidence  for  the  purpose.4  Where  a  contract  is  embo- 
died with  the  receipt,  in  one  paper,  the  part  constituting  the  re- 
ceipt is  open  to  explanation.5 

The  language  of  the  instrument,  so  far  as  it  relates  to  the  fact  of 
delivery,  the  thing  delivered,6  and  the  question  whether  the  words 
"  received  payment,"  or  their  equivalent,  represented  an  agree- 
ment to  accept  in  satisfaction,  may  be  contradicted  or  varied  by 
parol.  But  the  contradiction  to  which  a  receipt  is  subject  is  of 
some  fact  which  is  stated  in  it.8 

Words  in  the  receipt  stating  that  the  payment,  or  a  security 
transferred,  was  received  "  as  a  compromise" 9  or  "  without  re- 
course,"10 constitute  a  contract  within  the  rule  excluding  oral  evi- 
dence to  vary  the  terms  of  the  instrument ;  and  to  avoid  the 
effect  of  a  receipt  of  money  in  full  of  an  unliquidated  claim,  oral 
evidence  is  not  admissible  to  show  that  it  was  given  upon  a  con- 
dition not  expressed  in  it.11 

He  who  seeks  to  recover,  notwithstanding  his  receipt,  must 
prove  his  case  clearly  and  show  how  he  came  to  give  such  a  re- 
ceipt.13 

But  a  receipt,  unexplained  or  uncontradicted,  is  conclusive.13 
A  letter  which  accompanied  the  receipt  is,  if  relevant,  competent 
as  part  of  the  res  ffestce.u 

17.  Part  payment,  in  full.'] — Part  payment  accepted  in  full, 
may  be  proved  as  a  bar,  either  by  a  sealed  release;15  or  on  proof 
that  it  was  made  by  way  of  compromise,  and  accepted  on  release 
of  the  balance  ;18  or,  if  the  claim  paid  arose  on  a  written  obli- 

1  Battle  T.  Rochester  City  Bank,  3  N.  Y.  88  ;    Wadsworth  v.  Allcott,  6  N.  Y.  64. 

3  Johnson  v.  United  States,  5  Mas.  425. 

*  Brown  v.  Cabalin,  3  Oreg.  45,  and  see  pp.  697,  698  of  this  voL 

4  Van  Nest  v.  Talmage,  17  Abb.  (N.  Y.)  Pr.  99,  105. 
8  Smith  v.  Holland,  61  N.  Y.  635. 

•  Tobey  v.  Barber,  5  Johns.  68. 

'  Buswell  v.  Pioneer,  87  N.  Y.  312,  s.  c.  4  Abb.  Pr.  N.  S.  244,  35  How.  Pr.  447; 
Richard  v.  Wellington,  66  N.  Y.  308.  Otherwise  where  the  note  was  stated  to  be 
received  in  "full  payment."  Howard  v.  Norton,  65  Barb.  161.  A  receipt  for  a  note 
with  a  stipulation  that,  if  discounted,  a  certain  sum  is  to  be  applied  to  a  specific  in- 
debtedness, held  not  capable  of  being  varied  as  to  the  stipulation  by  parol.  Staple- 
ton  v.  King,  33  Iowa,  28,  s.  c.  11  Am.  R.  109,  and  cas.  cit. 

8  Green  v.  Rochester,  <tc.  Co.  1  Supm.  Ct.  (T.  <fe  C.)  5. 

9  Kellogg  v.  Richards,  14  Wend.  116,  NELSON,  J 

10  Graves  v.  Friend,  5  Sandf.  668. 

11  Coon  v.  Knap,  8  N.  Y.  402. 

13  Chapman  v.  Railroad  Co.  7  Phil.  (Penn.)  204. 

13  Lambert  v.  Sc-ely,  17  How.  Pr.  432.     For  the  rule  as  to  explaining  alterations, 
see  pp.  406,  696  of  this  volume,  applied  to  a  receipt  in  Printup  v.  Mitchell,  17  Geo. 
658.    Compare  Thrasher  v.  Anderson,  45  Geo.  639. 

14  Foster  v.  Newbrough,  66  Barb.  645,  revM  in  58  N.  Y.  481,  for  lack  of  founda- 
tion for  secondary  evidence. 

16  See  paragraphs  80-2. 

"Blair  v.  Wait,  69  N.  Y.  113,  affi'g  6  Hun,  477.     Where  a  claim  for  an  u» 


808  PAYMENT  OR  OTHER  DISCHARGE. 

gation,  by  evidence  that  the  obligation  was  surrendered  to  be 
canceled,  on  payment  of  the  part  with  an  agreement  to  accept  it 
in  full.1 

In  other  cases,  payment  and  acceptance  of  a  sum  of  money  (as 
distinguished  from  merchandise  or  other  property  in  gross),  less 
than  a  liquidated  debt,  is  only  payment  pro  tanto.  Payment  of 
a  less  sum,  or  a  promise  to  pay  it,  though  reinforced  by  additional 
security  of  the  debtor's  own  means,  is  not  satisfaction ;  but  an  ac- 
ceptance of  an  obligation  or  collateral  security  of  a  third  person 
on  his  property,  is.2 

A  receipt  for  payment  in  full  may  be  rebutted,3  except  so  far 
as  it  is  conclusive  under  the  preceding  rules.  Evidence  of  decla- 
rations of  the  creditor,  made  at  the  time  of  the  payment,  to  the 
effect  that  more  was  due  him,  is  competent  in  his  own  favor.4 

A  receipt  expressed  to  be  in  full  of  all  accounts,  will  sus- 
tain a  finding  of  a  settlement  of  accounts  on  both  sides.5 

A  receipt  in  full  of  all  demands  against  one  person  is  not, 
alone,  evidence  of  payment  of  a  joint  demand  against  him  and 
another.6 

18.  Admissions'  Entries  and  memoranda.'] — Evidence  of  an 
admission  by  the  creditor,  or  by  his  agent,  made  within  the  scope 
of  his  authority,7  that  he  had  received  payment,8  is  competent;  but 
is  not  conclusive,9  unless  acted  on  so  as  to  raise  an  estoppel.  An 
admission  of  payment  in  full,  is  competent,  although  the  specific 


certain  amount  is  made,  and  the  auditing  officers  of  the  government  state  it  at  a  re- 
duced sum,  the  creditor's  acceptance  of  a  draft  for  the  amount  and  collection  of  it  without 
objection,  is  an  acceptance  in  full  satisfaction  of  the  claim.  Baird  v.  United  States, 
96  U.  S.  (6  Otto),  430.  Where,  on  a  loss  of  several  things  insured,  the  value  of  one,  aa 
to  which  there  is  no  dispute,  is  paid  on  condition  that  the  insured  waives  his  claim 
as  to  the  others,  this  is  no  consideration,  and  without  a  technical  release  such  other 
claims  are  not  discharged.  Redfield  v.  Holland  Purchase  Ins.  Co.  56  N.  Y.  354. 

1  Ellsworth  v.  Fogg  &  Harvey,  35  Vt.  355 ;  Draper  v.  Hilt,  43  Vt.  439,  8.  c.  5 
Am.  R.  292 ;  McKenty  v.  Universal  Life  Ins.  Co.  3  Dill.  C.  Ct.  448.     To  establish 
the  settlement  of  a  large  and  unquestionable  claim,  by  payment  of  a  small  sum,  the 
evidence  should  be  clear  and  satisfactory.     Home  Ins.  Co.  v.  Western  Transp.  Co.  51 
N.  Y.  93,  affi'g  4  Rob.  257,  s.  c.  33  How.  Pr.  102.     Whether  the  solvency  or  insolv- 
ency of  the  debtor  is  competent,  as  tending  to  show  whether  acceptance  of  part  in 
full  was  probable  or  improbable,  compare  Keeler  v.  Salisbury,  33  N.  Y.  656 ;  Molyn- 
eaux  v.  Collier,  13  Geo.  406 

2  Keeler  v.  Salisbury,  S3  N.  Y.  648,  653,  affi'g  27  Barb.  485. 

3  For  instance,  by  evidence  of  compulsion.     Thomas  v.  McDaniel,  14  Johns.  185  ; 
Rourke  v.  Story,  4  E.  D.  Smith,  64.      So,  evidence  that  there  was  another  account 
between  the  parties,  and  that  the  partner  who  gave  the  receipt  was  not  accustomed 
or  able  to  attend  to  the  business,  is  sufficient  to  go  to  the  jury.     Lvm-h  ads.  Welch, 
6  N.  Y.  Leg.  Obs.  20.     Compare  Berrian  v.  Mayor,  <fec.  of  N.  Y.  4  Rob.  538. 

4  Dillard  v.  Scraggs,  36  Ala.  670. 

6  Alvord  v.  Baker,  9  Wend.  323. 

•  Walker  v.  Leighton,  1 1  Mass.  140. 

7  McRea  v.  Insurance  Bank  of  Columbus,  16  Ala.  755. 

8  Otherwise,  of  an  admission  of  having  settled,  which  may  merely  mean  adjust- 
ment.    Fort  v.  Gooding,  9  Barb.  371.     Otherwise,  also,  of  mere  declarations  of  intent 
never  to  collect.     McGuire  v.  Adams,  8  Penn.  St.  286. 

»  Ray  v.  Bell,  24  111.  444. 


PAYMENT.  809 

payments  of  which  there  is  other  evidence,  are  less  than  the 
amount  of  the  whole  debt.1 

The  payer's  entry  in  his  account  is  not  evidence  in  his  own 
favor,2  of  the  fact  of  payment,  unless  shown  to  have  been  brought 
to  the  knowledge  of  the  creditor,3  or  unless  the  entry  is  admis- 
sible on  some  ground  applicable  to  other  memoranda.4 

19.  Possession  of  instrument ;  Indorsements.'} — In  a  conflict 
of  evidence  on  a  question  of  payment  of  a  written  security,  pos- 
session of  the  security  by  the  creditor  will  usually  sustain  a  find- 
ing of  non-payment.5    Possession  by  the  debtor,  or  obligor,  even 
though  only  a  surety,  raises  a  presumption  of  payment,6  but  is 
not  conclusive.7 

A  notice  to  produce  an  instrument,  for  any  purpose,  is  suffi- 
cient to  admit  parol  proof  of  indorsements  upon  it,  of  pay- 
ments.8 

20.  Presumption  of  payment  from  subsequent  transactions. ~\ — 
Defendant  may  show  that  after  the  time  when  the  debt  sued  for 
is  alleged  to  have  become  due  and  payable,  plaintiff  gave  him  a 
promissory  note,9  or  other  obligation,10  or  security,11  for  the  pay- 
ment of  money ;  and,  in  the  absence  of  anything  to  show  what 
was  the  consideration  of  the  later  obligation,  there  is  a  legal  pre- 
sumption that  no  previous  indebtedness  from  defendant  to  plaintiff 
existed.13   Defendant  may  prove  the  later  obligation  by  parol,  with- 
out producing  or  accounting  for  the  writing.13     This  throws  the 
burden  on  plaintiff  to  show  that  the  demand  in  suit  was  not  set- 
tled ;  but  slight  evidence  may  be  sufficient  for  this  purpose.14 

Evidence  of  the  payment  of  one  instalment  of  rent,  in  the  ab- 
sence of  other  evidence,  raises  a  legal  presumption  that  prior  in- 
stalments were  paid  ;15  and,  upon  the  same  principle,  evidence  of 
the  payment  of  one  of  a  series  of  instalments  accruing  under  any 
contract,  or  one  of  a  series  of  obligations  taken  upon  the  same 
transaction,  is  competent  as  tending  to  show  payment  of  those 
preceding.16 

1  Henderson  v.  Moore,  5  Cranch,  11. 

s  Brannin  v.  Force,  12  B.  Mon.  (Ky.)  506 ;  Whitehouse  v.  Bank  of  Cooperstown,  48 
N.  Y.  239. 

3  Meyer  v.  Reichardt,  112  Mass.  108. 

4  The  Queen  v.  Exeter,  L.  R.  4  Q.  B.  341 ;  pp.  319-26  of  this  vol. 
6  Breinbridge  v.  Osborne,  1  Stark.  874.  , 

8  Carroll  v.  Bowie,  7  Gill  (Md. ),  33, 41.  So,  also,  of  possession  of  a  mortgage  and 
the  bond,  by  a  grantee  of  the  land.  Br;iman  v.  Bingham,  26  N.  Y.  483. 

1  Graves  v.  \Vood,  3  B.  Mon.  (Ky.)  34. 

«  llowell  v.  Huyck,  2  Abb.  Ct.  A  pp.  Dec.  423. 

'  De  Freest  v.  Bloomingdale,  5  Den.  304 ;  Duguid  v.  Ogilvie,  3  E.  D.  Smith,  527, 
B.  o.  1  Abb.  Pr.  145. 

10  Callaway  v.  Hearn,  1  Ilonst.  (Del )  607. 

11  Chewnin?  v.  Proctor,  2  M'Cord,  II,  15. 

JJ  De  Freest  v.  Bloomingdale  (above) ;  Duguid  Y.  Ogilvie  (above). 

13  Mead  v.  Brooks,  8  Ala.  840. 

14  Chewning  v.  Proctor  (above). 

15  Patterson  v.  O'llara,  2  E.  D.  Smith,  58 ;  Decker  v.  Livingston,  15  Johns.  479. 
18  But  the  value  of  such  evidence  in  casea  other  than  those  of  rent,  where  dispos- 


810  PAYMENT  OR  OTHER  DISCHARGE. 

Where  by  the  contract,1  or  the  law,3  payment  was  a  condition 
precedent  to  the  performance  of  another  act,  evidence  that  such 
act  was  performed,  is  competent  to  sustain  an  inference  that  pay- 
ment had  been  made. 

21.  Circumstantial    and    corroborative    evidence.'] — On    the 
mere  question  of  payment  it  is  not  competent  to  show,  for  the 
purpose  of  raising  a  presumption  of  payment  that  it  was  the 
debtor's  habit  to  pay  his  debts  promptly,  nor  that  in  enumerat- 
ing them  he  made  no  mention  of  the  debt  in  suit  ;4  nor  that  he 
was  responsible  and  at  hand,  and  that  the  creditor  was  pressed 
for  money,  yet  made  no  claim.5    But  such  evidence  may  be  com- 
petent on  the  question  whether  the  debt  ever  existed,  especially 
where  it  is  a  stale  claim.6    The  solvency  or  wealth  of  the  defend- 
ant at  the  time  of  the  alleged  payment  is  not  competent  ;7  nor  is 
the  fact  that  he  borrowed  money  ostensibly  for  the  purpose  of 
paying.8 

Evidence  that  a  person  authorized  to  receive,  but  who  is  since 
deceased,  went  to  defendants'  place  of  business  for  the  purpose  of 
settling  with  them,  and  that  he  had  no  money  before  he  went  in, 
and  that  within  he  saw  defendants,  and  that  he  was  seen  to  come 
out  with  money  which  he  said  he  got  of  defendants,  is  sufficient 
to  sustain  a  finding  of  payment.9  Evidence  that  a  witness  showed 
the  money  directly  after  the  interview  in  which  he  testifies  it  was 
paid  to  him,  is  competent  as  having  a  tendency  to  confirm  his 
testimony.10 

22.  Application  by  the  debtor.'] — If  a  payment  is  voluntarily 
made  by  the  debtor,  its  application  by  him  to  one  of  several  debts 
or  accounts  may  be  inferred  from  his  conduct,11  or  even  from  cir- 
cumstances alone,12  or  from  his  interest,  under  circumstances  not 


session  so  commonly  follows  default,  depends  upon  the  circumstances  of  the  case. 
Compare  Matthews  v.  Light,  40  Me.  894;  Bougher  v.  Kimball,  30  Mo.  193;  Sennett 
V.  Johnson,  9  Penn.  St.  335. 

I  Reynolds  v.  Richards,  14  Penn.  St.  205. 

8  Terry  v.  N.  Y.  Central  R.  R.  Co.  22  Barb.  574. 

8  Abercrombie  v.  Sheldon,  8  Allen  (Mass.),  532.  Contra,  Orr  v.  Jackson,  1  IIL 
App.  439.  4  Id. 

6  Beach  v.  Allen,  7  Hun,  441.     Contra,  Orr  v.  Jackson  (above). 

6  Church  v.  Fagan,  43  Mo.  123;  Fisher  v.  Plimpton,  97  Mass.  441;  Marshall  r. 
Marshall's  Admr.  12  B.  MOD.  (Ky.)459;  Nicholls  v.  Van  Valkenburgh,  15  Hun,  230; 
Thorp  v.  Goewey,  5  Rep.  619 ;  and  see  pp.  247,  282  of  this  vol. 

7  Veazie  v.  Hosmer,  11  Gray,  396;  Church  v.  Fagin,  43  Mo.  123;  1  Dan.  Neg.  I, 
§  1 229.    It  may  have  been  the  motive  for  plaintiffs  confidence  in  not  collecting. 
Hilton  v.  Scarborough,  6  Gray,  422. 

8  Reed  v.  Pearson,  3  N.  J.  L.  (2  Penn.)  681.     Compare  Burlew  v.   Hubbell,  1 
Supm.  Ct.  (T.  <fe  C.)  235. 

9'Whisler  v.  Drake,  85  Iowa,  103.  Whether  evidence  of  simultaneous  payment 
of  other  like  claim, — such  as  laborers  on  a  pay-roll, — is  competent,  compare  Filer  v. 
Peebles,  8  N.  H.  226,  and  p.  375  of  this  vol. 

10  Chester  v.  Dickerson,  54  N.  Y.  1,  affi'g  52  Barb.  349. 

II  Peters  v.  Anderson,  5  Taunt.  596  ;  and  see  22  Wend.  554. 

*  Stone  v.  Seymour,  15  Wend.  19,  24;  Howland  v.  Rench,  7  Blackf.  (Ind.)  236. 


PAYMENT.  811 

manifesting  any  other  intention.1  But  for  this  purpose  a  declara- 
tion, or  circumstances  not  known  to  the  creditor  at  the  time,  are 
not  competent  to  defeat  an  exercise  of  the  right  of  application  by 
the  creditor.2  To  show  the  debtor's  application,  his  letter,  or  that 
of  his  general  agent,  to  the  creditor,  at  the  time,3  or  the  declarations 
of  the  bearer  of  the  money,  made  at  the  time  of  delivering  it  to 
the  creditor,4  are  competent  in  the  debtor's  favor.  Where  there 
is  such  evidence,  the  creditor's  prior  letter  of  demand  is  not  com- 
petent to  show  a  different  application.5  In  the  absence  of  other 
evidence,  application  expressed  in  a  receipt  will  control;6  but  ap- 
plication wrongfully  made,  although  indicated  by  a  receipt  sent 
to  the  payer,  does  not  bind  him.  If  he  had  previously  communi- 
cated his  dissent  to  such  application,  his  silence  on  receiving  the  re- 
ceipt will  not  conclude  him.7  Evidence  of  a  request  from  the 
debtors  to  the  creditor,  to  pay  himself  out  of  their  property  in  his 
hands,  is  not  evidence  of  payment  without  something  to  indicate 
compliance  with  the  request.8 

23.  —  ~by  the  creditor.'] — In  the  absence  of  evidence  of  an  ap- 
plication by  the  debtor,  an  application  by  the  creditor  may  be 
proved.     If  the  creditor  claims  application  to  a  debt  other  than 
that  in  suit,  it  is  for  him  to  prove  the  existence  of  the  obligation,9 
and,  if  written,  he  must  produce  it  or  account  for  it,  before  giving 
oral  evidence  of  it.10    For  the  purpose  of  proving  the  applica- 
tion, the  like  indirect  evidence  of  intention  is  competent,  as  in 
case  of  application  by  the  debtor;11  and  moreover  the  entries  made 
by  the  creditor  in  his  own  books  of  account  at  the  time  of  the 
payment,  are  competent  evidence  in  his  behalf,12  but  are  not  con- 
clusive.    Crediting  on  an  open  account  implies  intent  to  apply  to 
the  earlier  items,  notwithstanding  the  creditor  holds  security  for 
those  only.13     But  crediting  on  a  private  account  is  not  conclusive, 
unless  communicated  to  the  debtor.14 

24.  —  by  the  court.'] — When  application  devolves  upon  the 


1  Such  as  the  fact  that  the  payment  was  precisely  the  amount  of  one  debt  and  not 
that  of  another.  Robert  v.  Garnie,  3  Cai.  14 ;  Seymour  v.  Van  Slyck,  8  Wend.  403 ; 
Davis  v.  Fargo,  Clarke,  470. 

1  Munger  on  A  p.  28. 

2  Mitchell  v.  Dall,  2  Har.  <fe  G.  (Md.)  159. 
4  Gay  v.  Gay,  6  Allen  (Mass.),  157. 

B  Mitchell  v.  Dall  (above). 

«  Stewart  v.  Keith,  12  Penn.  St.  238. 

1  Per  BKONSON,  J.,  Starkweather  v.  Kittle,  17  "Wend.  20. 

8  King  v.  Bush,  86  111.  142. 

9  Mann  v.  Major,  6  Rob.  (La.)  475. 

10  Trundle  v.  Williams,  4  Gill  (Md.),  313. 

11  Truscott  v.  King,  6  N.  Y.  147. 

18  Van  Rensselaer  v.  Roberts,  5  Den.  470. 

13  Id.  B.  P.  Crampton  v.  Pratt,  105  Mass.  255.  So,  also,  notwithstanding  those 
items  had  been  barred.  Hill  v.  Robbins,  22  Mich.  475.  Compare  Mills  v.  Fowkes,  5 
Bing.  N.  C.  455. 

'^Allen  v.  Culver,  3  Den.  284 ;  Seymour  v.  Marvin,  1 1  Barb.  80.  Nor  even  then 
always  conclusive  evidence  of  intention.  Dulles  v.  De  Forest,  19  Conn.  190. 


812  PAYMENT  OR  OTHER  DISCHARGE. 

court  because  of  no  application  by  the  parties  being  shown,  evi- 
dence of  the  existence  of  the  other  debts  is  admissible.1 

25.  Presumption  of  payment  from  lapse  of  iime^\ — Under  an 
allegation  of  payment,  the  legal  presumption  of  payment  is 
available8  which  arises  from  the  mere  lapse  of  twenty  years  from 
the  time  a  payment  is  due.  This  presumption  is  usually  defined 
with  important  qualifications  in  the  statutes ;  which  should  be 
consulted.  At  common  law,  and  in  equity,8  great  lapse  of  time 
without  part  payment  or  other  recognition,  is  a  circumstance 
which,  with  others,  may  tend  to  show  payment;4  and  if  extend- 
ing for  twenty  years5  from  the  time  the  obligation  was  due  and 
payable,6  and  before  the  commencement  of  the  proceeding  on  it,7 
raises  (except  against  the  government)8  a  legal,  but  not  conclu- 
sive9  presumption  that  payment  has  been  made,  which  throws  on 
the  creditor  the  burden  of  proving  non-payment.10 

The  presumption  applies  to  any  obligation  that  can  be  extin- 
guished by  an  act  of  payment,  such  as  a  judgment,11  or  a  sealed 
obligation,13  or  an  assessment,13 — as  distinguished  from  a  covenant 
which  must  be  released  by  deed.14  This  presumption  is  not,  like 
the  statute  of  limitations,  a  mere  bar  to  the  remedy ;  but  is  a 


1  Robinson  v.  Allison,  36  Ala.  525,  631. 

8  New  York  Life  Ins.  &  Trust  Co.  v.  Covert,  3  Abb.  Ct.  App.  Dec.  350 ;  29  Barb. 
435,  441  ;  Malloy  v.  Vanderbilt,  4  Abb.  New  Cas.  127,  132;  and  see  Livingston  v. 
Livingston,  4  Johns  Ch.  287. 

8  Giles  v.  Baremore,  5  Johns.  Ch.  545. 

4  Where  the  time  is  less  than  the  statxite  period,  any  accompanying  circum- 
stances tending  to  explain  or  repel  the  presumption,  are  evidence  lor  the  jury. 
Jackson  v.  Sackett,  7  Wend.  94.  The  facts  that  defendant  had  been  solvent  and 
accessible  (Husky  v.  Maples,  2  Coldw.  [Tenn.]  25),  and  that  plaintiff  had  been 
pressed  for  money  (Levers  v.  Van  Buskirk,  4  Penn.  St.  309,  314),  have  been  re- 
ceived in  aid  of  the  presumption.  Contra,  Daby  v.  Ericsson,  45  N.  Y.  786,  and  see 
paragraph  21. 

8  Exclusive  of  disabilities.  Dunlop  v.  Ball,  2  Cranch,  180;  Higginson  v.  Mein, 
4  Id.  415. 

6  Thus  in  case  of  rent,  or  a  bond  payable  by  instalments,  the  presumption  arises 
as  to  each  instalment,  at  the  expiration  of  the  period  from  the  time  it  became  due. 
Lyon  v.  Odell,  65  N.  Y.  28  ;  Slate  T.  Lobb,  3  Harr.  (Del.)  421,  423. 

7  Driggs  v.  Williams,  15  Abb.  Pr.  477. 

8  United  States  v.  Williams,  4  McLean,  567 ;  5  Id.  133. 

9  Arden  v.  Arden.  1  Johns.  Ch.  318;    Bailey  v.  Jackson,  16  Johns.   210;  Jack- 
Bon  v.  Hotchkiss,  6  Cow.  401 ;     McLellan  v.  Crofton,  6  Greenl.  307,  334  ;    Farmers' 
Bank  v.  Leonard,  4  Harr.  (Del.)  536.     Contra,  Dedlake  v.  Robb,  1  Woods,  680. 

10  2  Whart.  Ev.  §  1360.     Whether  the  presumption  could  always  be  rebutted  by 
evidence  of  non-payment,  eee  Giles  v.  Baremore,  5  Johns.  Ch.  545 ;  Fox  v.  Pbelps, 
20  Wend.  437,  affi'g  17  Id.  393. 

11  Boardman  v.  De  Forrest,  6  Conn.  1 ;  Miller  v.  Smith,  16  Wend.  425,  reVg  14 
Id.  188.     And  a  justice's  judgment,  before  the  short  limitation  of  the  present  statute. 
Fairbanks  v.  Wood,  17  Wend.  329  ;  Johnson  v.  Burrell,  2  Hill,  238. 

12  For  instance,  a  bond.     Hi<rginson  v.  Mein,  4  Cranch,  415.     But  not  administra- 
tion bonds.    2  Whart.  Ev.  §  1360.     A  mortgage.     Jackson'  v.  Pierce,  10  Johns.  414. 
A  sealed  award.     Smith  v.  Loctwood,  7  Wend.  241.     Rent  accrued  on  a  covenant, 
but  not  the  covenant  itself.     Central  Bank  v.  Heydon,  48  N.  Y.  260. 

13  Mayor,  Ac.  of  N.  Y.  v.  Colgate,  12  N.  Y.  140. 

14  Lyon  v.  Adde,  63  Barb.  89 ;  Central  Bank  v.  Heydon,  48  N.  Y.  260. 


PAYMENT.  813 

prima  facie  extinguishment  of  the  debt;1  not  however  available 
to  support  an  allegation  of  payment  as  a  ground  of  affirmative 
relief/ 

The  statute 3  declaring  that  the  presumption  arises  from  the 
lapse  of  twenty  years,  by  implication  forbids  a  presumption  of 
payment  from  mere  lapse  of  time,  short  of  twenty  years.4  But 
it  may  be  presumed  from  other  circumstances  in  connexion  with 
the  lapse  of  less  time.5  The  statute  presumption  is  not  that  pay- 
ment was  made  at  the  expiration  of  the  limit,  but  at  some  prior 
indefinite  time,  or  when  the  obligation  became  due.6 

The  common  law  presumption  may  be  repelled,  not  only  by 
evidence  of  acknowledgment  or  part  payment,  but  by  other  cir- 
cumstances— for  instance,  proceedings  of  enforcement,  such  as  a 
statute  foreclosure  of  a  mortgage  ;"*  or,  in  case  of  a  judgment,8 
return  of  an  execution  unsatisfied  within  the  twenty  years ;  or 
by  evidence  of  the  debtor's  insolvency,9  for  which  purpose  other 
judgments,  recovered  by  third  persons,  within  the  limit,  and  re- 
maining unsatisfied,  may  be  put  in  evidence.10  And  in  aid  of 
evidence  of  insolvency,  evidence  of  absence,11  or  distant  resi- 
dence,12 is  competent.  The  statute,  on  the  other  hand,  excludes 
every  species  of  evidence  to  rebut  the  presumption,  except  that 
of  part  payment  or  a  written  acknowledgment.1^  Proof  of  actual 
non-payment  is  not  available.14 


1  Reed  v.  Reed,  46  Penn.  St.  239.     The  fact  that  a  note  is  statute  barred,  is  not 
conclusive  evidence  that  it  has  been  paid.     Pratt  v.  Huggins,  29  Barb.  277. 

*  Lawrence  v.  Ball,  14  N.  Y.  477;  Brady  v.  Begun,  36  Barb.  633. 

*  For  the  successive  N.  Y.  statutes  which  leave  the  rule  a  very  complex  one, 
compare  2  R.  S.  301  (3  Id.  6th  ed.  570),  §§  46-48 ;  Code  Pro.  §  90  (3  R.  S.  6th  ed. 
477) ;  Code  Civ.  Pro.  §§  376  (as  am'd  1877),  881,  395.    But  by  N.  Y.  Code  Civ.  Pro. 
the  presumption  avails  under  an  allegation  that  the  action  was  not  commenced,  or 
the  proceeding  not  taken,  within  the  time  limited  by  the  statute  (§  378). 

Mngraham  v.  Baldwin,  9  N.  Y.  45  ;  and  see  Daby  v.  Ericsson,  45  N.  Y.  786. 

6  Flagg  v.  Ruden,  1  Bradf.  192  ;  Bander  v.  Snyder,  5  Barb.  63. 
«  Martin  v.  Gage,  9  N.  Y.  898. 

7  Jackson  v.  Slater,  5  Wend.  295  ;  and  see  Levers  v.  Van  Buskirk,  7  Watts  & 
S.  70. 

8  Henderson  v.  Cairns,  14  Barb.  15  ;  compare  Code  Civ.  Pro.  §  877. 

9  Waddell  v.  Elmendorf,  10  N.  Y.  170,  affi'g  12  Barb.  585 ;  Farmers'  Bank  v. 
Leonard,  4  Harr.  (Del.)  536. 

10  Waddell  v.  Elmendorf  (above).     And  even  judspnents  which  have  been  satis- 
fied may  be  cpmpetent  for  the  consideration  of  the  jury.     Levers  v.  Van  Buskirk,  4 
Penn.  St  309,'  314. 

11  Boardman  v.  De  Forrest,  6  Conn.  1. 

1J  M'Kender  v.  Littlejohn,  4  Ired.  N.  0.  L.  198.  Whether  absence  and  insol- 
vency are  alone  sufficient  to  rebut  the  presumption,  compare  Kline  v.  Kline,  20 
Penn.  St.  503,  508  ;  Roberts  v.  Judd,.5  Vt.  236 ;  and  McLellen  v.  Crofton,  6  Greenl. 
807,  334. 

13  Morey  v.  Farmers'  Loan  <fe  Trust  Co.   14  N.  Y.  802 ;  Malloy  v.  Vanderbilt,  4 
Abb.  New  Cas.  127,  132. 

14  Fisher  v.  The  Mayor,  <fec.  67  N.  Y.  73,  80,  reversing  6  Hun,  64;   5  Id.  648. 


PAYMENT  OR  OTHER  DISCHARGE. 


II.   ACCORD  AND   SATISFACTION. 

26.  Mode  of  proof  ,  and  effect.'] — This  defense  ought  to  be 
pleaded ;  but  may  be  inserted  by  amendment,  at  the  trial.1  Under 
this  answer,  evidence  of  payment  may  avail  if  plaintiff  is  not 
misled.2  The  burden  is  on  the  defendant  to  show  that  the 
accord  and  satisfaction  was  accepted  by  the  plaintiff.  An  accord, 
executory,  with  tender  of  performance,  is  not  a  bar.8  Tender  is 
not  enough,  even  as  to  costs.4 

In  respect  to  a  liquidated  and  undisputed  debt,  payment  of 
part  in  full  is  not  enough,8  even  if  the  less  sum  came  from  a 
third  person  ;6  but  evidence  that  it  was  loaned  by  him  in  good 
faith  for  the  purpose  of  obtaining  the  satisfaction  agreed  on  is 
enough  to  establish  satisfaction.7  The  payment  of  a  less  sum  if 
accompanied  with  anything  given  by  the  debtor  to  the  creditor 
which  the  law  can  consider  a  benefit — such  as  a  release  of  cross 
demands — and  accepted  as  a  satisfaction  of  the  whole,  is  a  good 
accord  and  satisfaction.8 

In  respect  to  a  debt  uncertain  in  amount,9  or  the  existence  of 
which  is  disputed,10  a  less  sum  accepted  in  full  constitutes  an 
accord  and  satisfaction. 

Acceptance  in  satisfaction  having  been  shown,  the  relative 
value  of  the  thing  accepted  and  the  debt  is  immaterial.11  Upon 
showing  that  the  creditor  received  an  obligation  of  a  third  per- 
son, to  be  satisfaction  if  paid  at  maturity,  the  burden  is  on 
defendant  to  show  that  it  was  so  paid.12 

A  substituted  executory  agreement  is  not  an  accord  and  satis- 
faction unless  it  gives  a  cause  of  action.13 

The  plaintiff  cannot  rebut  the  evidence  of  an  accord  and 
satisfaction  by  showing  a  new  promise,14  or  that  the  security  he 
accepted  was  void  for  his  own  usury.15 


1  Brett  v.  First  Univ.  Soc.  63  Barb.  610,  613. 

s  Prouty  v.  Eaton,  41  Barb.  409.    It  is  not  the  appropriate  allegation  to  admit 
evidence  of  compromise.     Williams  v.  Irving,  47  How.  Pr.  440,  442. 

3  1  Abb.  N.  Y.  Dig.  15 ;  Kromer  v.  Heim,  44  Super.  Ct.  (J.  <fe  S.)  237,  246. 

4  Noe  v.  Christie,  51  N.  Y.  270,  273. 

5  Ryan  v.  Ward,  48  N.  Y.  204. 

6  Bunge  v.  Koop,  48  K  Y.  225. 

7  Grocers'  Bank  v.  Fitch,  1  Supm,  Ct.  (T.  <fe  C.)  651,  affi'd  in  58  N.  Y.  623. 

8  Pardee  v.  Wood,  8  Hun,  684. 

•  Brett  v.  First  Univ.  Soc.  of  Brooklyn,  63  Barb.  610,  617. 

10  Howard  v.  Norton,  65  Barb.  161.      As  to  "jump  settlements,"   see  Calkins  v. 
Griswold,  11  Hun,  208 ;  Hamilton,  <fec.  Co.  v.  Goodrich,  6  Allen,  191,  199. 

11  Grocers'  Bank  of  N.  Y.  v.  Fitch,   1  Supm.  Ct.  (T.  <fc  C.)  651,  affi'd  on  Genl. 
Term  opinion,  58  N.  Y.  623. 

18  Dolsen  v.  Arnold,  10  How.  Pr.  528. 

13  Kromer  v.  Heim,  44  Super.  Ct.  (J.  <fc  S.)  237,  246;    Billings  v.  Vanderbeck,  23 
Barb.  546. 

14  Stafford  v.  Bacon,  1  Hill,  532. 

15  La  Farge  v.  Herter,  9  N.  Y.  241,  affi'g  11  Barb.  159  ;  4  Id.  346. 


COMPROMISE  AND  COMPOSITION.  815 

III.  ACCOUNT  STATED. 

27.  Mode  of  proof  ,  and  effect^ — This  defense,  if  available, 
must  be  pleaded.1  It  may  be  proved  by  evidence  of  the 
reading  over  of  the  items  (even  though  they  were  all  on  one 
side),  and  agreeing  upon  the  balance  or  amount  due.8  An  ac- 
count stated  is  presumed  to  include  all  previous  transactions 8 
prior  to  the  day  on  which  it  was  had,  including  previous  accounts 
stated.4 

"Where  a  statement  of  account  is  alleged  by  defendant  as  a 
defense,  not  as  a  counterclaim,  the  new  procedure  does  not 
require  plaintiff  to  controvert  it  in  pleading,  unless  a  reply  be 
ordered  by  the  court.5 

The  statement  of  the  account  having  been  proved,  between 
parties  who  stood  on  equal  terms,  the  burden  is  on  plaintiff  to 
show  the  fraud,  concealment  or  mistake  on  which  he  relies  as 
ground  for  opening  it.6  It  is  a  general  rule,  applicable  with  due 
regard  to  the  circumstances  of  each  case,  that  where  the  accounts 
have  been  shown  to  be  erroneous  to  a  considerable  extent,  both  in 
amount  and  in  the  number  of  the  items,  or  where  fiduciary  rela- 
tions exist,  and  a  less  considerable  number  of  errors  are  shown, 
or  where  fiduciary  relations  exist  and  one  or  more  fraudulent 
omissions  or  insertions  in  the  account  are  shown,  the  court  opens 
the  account,  and  does  not  merely  surcharge  and  falsify.7 

An  account  expressly  stated  by  both  parties,  being  shown,  and 
unimpeached,  plaintiff  cannot  always  recover  on  the  original  cause 
of  action'8  but  if  there  is  a  failure  to  prove  the  stating  of  the 
account,  defendant  may  fall  back  on  the  accounts  and  prove  that 
there  is,  in  fact,  a  balance  due  him,  unless  his  pleading  is 
so  framed  as  to  show  that  he  relies  solely  on  the  account  stated.9 

IY.  COMPROMISE  AND  COMPOSITION. 

28.  Mode  of  proof  ,  and  effect^ — It  is  enough  to  prove  that 
a  substantial  controversy  upon  a  claim  made  or  resisted,  in  good 
faith,  by  the  defendant,  and  a  compromise  made  by  him  on  the 


1  Kock  T.  Bonitz,  4  Daly,  117,  120.  Without  allegation  of  payment  or  satisfac- 
tion at  common  law  it  is  not  pleadable  (Bump  v.  Phoenix,  6  Hill,  808);  nor  under 
the  new  procedure,  except  in  peculiar  cases  resting  on  equitable  grounds.  (Sec  other 
cases  cited  on  this  page.) 

s  Id.  Or  in  other  modes  stated  at  p.  469  of  this  vol.  An  account  is  not  usually 
conclusive  on  the  party  rendering  it.  Schettler  v.  Smith,  34  Supar.  Ct.  (J.  «fe.  S.)  17. 

1  Dutcher  v.  Porter,  63  Barb.  15. 

«  Dorsey  v.  Kollock,  1  N.  J.  L.  85. 

*  Welsh  v.  German  American  Bank,  42  Super.  Ct.  (J.  dt  S.)  462,  affi'd  in  73  N. 
T.  424  ;  Code  Civ.  Pro.  §§  514,  516.  In  an  action  to  recover  a  single  item  alleged  to 
have  been  fraudulently  omitted,  a  reopening  of  the  account  generally  would  be  a 
departure  from  the  pleadings.   McMichael  v.  Kilmer,  76  N.  Y.  36,  rev'g  12  Hun,  336. 

•  Brown  T.  Van  Dyke,  8  N.  J.  Eq.  (4  Halst.)  795,  803. 

'  Williamson  v.  Barbour,  L.  R.  9  Cb,  Div.  629,  s.  c.  37  L.  T.  R.  N.  S.  698,  699. 

8  White  v.  Whiting,  8  Daly,  23,  27.     Compare  Milward  v.  Ingram,  2  Mod.  43. 
with  Bump  v.  Phoenix,  above  cited ;  Volkening  v.  De  Graaf,  81  N.  Y.  268  •  Youni? 
V.  Hill,  67  N.  Y.  174,  175,  s.  c.  23  Am.  11.  99. 

9  Goings  v.  Patten,  1  Daly,  168,  s.  c.  17  Abb.  Pr.  839. 


816  PAYMENT  OR  OTHER  DISCHARGE. 

X 

settlement  of  it.1  In  the  absence  of  evidence  of  fraud,  misrepre- 
sentation or  undue  advantage  taken,  the  non-beneficial  character 
of  the  compromise  is  not  relevant."  A  compromise  having  been 
shown,  mistake  of  law  is  immaterial  unless  caused  by  the  advice 
of  the  other  party.8  Evidence  of  fraud  or  oppression  may  be 
met  by  showing  ratification  after  knowledge  of  it.4 

A  composition  with  creditors,  including  plaintiff,  must  be 
alleged  (under  the  new  procedure),  in  order  to  be  admissible  as  a 
bar.*  The  facts  necessary  to  make  it  binding  should  be  proved,6 
including  delivery  of  the  new  notes  or  other  securities,  or  at  least, 
tender  of  them,  made  and  kept  good  (and  in  that  case  the  securi- 
ties must  be  brought  into  court  for  delivery),  unless  there  is 
evidence  that  plaintiff  waived  or  dispensed  with  tender.  To 
avoid  the  composition  the  debtor's  fraud  on  the  creditor  by  giv- 
ing others  a  secret  advantage  may  be  proved.7 

Y.  TENDER. 

29.  Necessity,  and  mode  of  proof  I\ — Tender  cannot  be  proved, 
where  keeping  the  tender  good  and  pavinginto  court  are  neces- 
sary, unless  those  acts  are  also  alleged.®  Where  the  party  mak- 
ing tender  omits  to  produce  the  money  in  consequence  of  the 
other  party's  refusal  to  act,  it  is  not  enough  to  prove  his  declara- 
tion that  he  had  the  money  ready,  but  he  must  at  least  give 
sufficient  evidence  that  at  the  time  of  demand  of  performance 
he  had  such  means  of  procuring  the  money  as  to  entitle  him  to 
go  to  the  jury  on  the  question  of  his  being  then  able  to  make 
the  payment.9  A  tender  of  the  check  of  the  party  for  money, 
if  not  objected  to,  is  sufficient.10  In  case  of  the  tender  of  a 
written  instrument,  an  absolute  refusal  to  accept  any  such  instru- 
ment excuses  the  omission  actually  to  execute  it  before  tender.11 
Where  goods  to  be  tendered  are  ponderous  and  bulky,  it  is 
enough  if  they  are  placed  in  the  power  of  the  party  to  whom 
they  are  tendered.12  If  warehouse  receipts  are  tendered,  with  an 


I  See  3  Abb.  N.  T.  Dig.  new  ed.  83,  178 ;  Dixon  v.  Evans,  L.  R.  5  H.  L.  606. 
»Id. 

3  Taplin  v.  Wilson,  4  Hun,  244. 

«  Stebbins  v.  Niles,  25  Miss.  267;  Adams  v.  Sage,  28  N.  T.  103. 

*  Smith  v.  Owens,  21  Cal.  1 1. 

•  Warburg  v.  Wilcox,  7  Abb.  Pr.  336,  and  cas.  cit. ;   Bump  on  Composition,  72. 
'  Beach  v.  Ollendorf,  1  Hilt.  41. 

8  Becker  v.  Boon,  61  N.  Y.  317  (D WIGHT  C.  dissented) ;  Kortright  v.  Cady,  6 
Abb.  Pr.  358,  s.  c.  less  fully,  23  Barb.  490;  but  see  reversal,  21  N.  Y.  843. 

»  Goodrich  v.  Sweeny,  36  Super.  Ct.  (J.  &  S.)  320,  325. 

i°  Mitchell  v.  Vermont  Copper  Mining  Co.  67  N.  Y.  280,  affi'g  40  Super.  Ct.  (J.  & 
S.)406;  47  How.  Pr.  218. 

II  Blewett  v.  Baker,  58  N.  Y.  611,  affi'g  87  N.  Y.  Super.  Ct  (J.  <fc  S.)  23;   and  see 
Rinaldo  v.  Housmann,  1  Abb.  New  Cas.  312. 

u  Hayden  v.  Demcts,  53  N.  Y.  426,  affi'g  34  Super  Ct.  (.T.  <t  S.)  344.  A  seller's 
tender  of  goods,  to  which  he  has  not  good  title,  is  not  enough.  Croninger  v. 
Crocker,  62  N.  Y.  151, 157. 


RELEASE.  817 

order  for  payment  of  the  charges  and  delivery  of  the  goods 
themselves  if  required,  a  refusal  on  account  of  inability  to  pay, 
with  no  objection  as  to  the  sufficiency  of  the  tender,  is  a  waiver 
of  any  objection  to  it.1  But  a  tender  of  bulky  articles  must  be 
seasonably  made,  to  give  opportunity  for  examination  before  the 
close  of  the  day.2  An  anticipatory  declaration  of  refusal  to  per- 
form, without  withdrawing  the  declaration  before  the  time  of 
performance  arrives,  excuses  the  party  to  whom  it  is  made  from 
performing  or  offering  to  perform.3  Where  the  party's  absence 
from  the  State,  or  being  beyond  reach,  or  intentional  evasion,  is 
relied  on,  evidence  that  he  was  temporarily  absent  from  his  resi- 
dence is  not  sufficient.4 

The  authority  of  the  person  making  the  tender  may  be  in- 
ferred from  slight  evidence.5 

VI.  RELEASE. 

30.  Mode  of  proof,  and  effect^ — A  release  under  seal  is  con- 
clusive evidence  of  its  own  consideration.  To  make  it  admissi- 
ble in  evidence  with  this  effect,  it  should  be  pleaded.6  An 
allegation  of  a  release  will  admit  evidence  of  an  unsealed  instru- 
ment purporting  to  release,  together  with  acts  creating  an  equi- 
table estoppel  to  the  same  effect.7  A  release  given  by  one  of  two 
joint  creditors  may  be  proved  in  the  same  cases  as  where  his 
admissions  and  declarations  might  be.8  A  release  by  one  of  two 
co-trustees  may  be  aided  by  evidence  of  conduct  of  the  other 
implying  recognition  and  ratification.9  Delivery  may  be  pre- 
sumed of  a  partial  release,  indorsed  on  the  original  obligation 
continuing  in  the  possession  of  the  obligee.10  A  trustee  who 
sets  up  a  release  from  a  cestui  que  trust,  must  either  show  actual 
and  adequate  consideration,  or  that  it  was  based  upon  a  settle- 
ment at  arms  length,  or  that  he  gave  the  cestui  que  trust  full 
information  and  a  fair  statement  01  the  trust.11 

An  unqualified  sealed  release  of  one  of  several  joint  wrong- 
doers,12 or  joint,  or  joint  and  several  debtors,13  at  common  law  re- 


»  Hayden  v.  Demets,  53  N.  Y.  426,  affi'g  34  Super.  Ct.  (J  <fe  S.)  844. 

«  Croninger  v.  Crocker,  62  N.  Y.  151,  158. 

»  Shaw  v.  Republic  Life  Ins.  Co.  69  N.  Y.  286,  modifying  67  Barb.  586.  Where 
the  party  absolutely  refuses  to  perform,  the  law  does  not  require  the  useless  act  of  a 
tender  of  performance  as  a  condition  precedent.  Pettitt  v.  Turner,  2  Supm.  Ot. 
(T.  &  C.)  608. 

4  Hoag  v.  Parr,  13  Hun,  95. 

6  Tacey  v.  Irwin,  18  Wall.  549,  551. 

6  Rose.  N.  P.  663 ;  Hitchcock  v.  Carpenter,  9  Johns.  844. 

'  Cornell  v.  Hasten,  35  Barb.  157. 

•Pnge  188  of  this  vol. 

»  Van  Rcnsselaer  v.  Akin,  22  Wend.  649. 

10  Fitch  v.  Forman,  14  Johns.  172. 

11  Bolton  v.  Gardner,  3  Paige,  273.     Compare  p.  735  of  this  vol. 
»  Gunther  v.  Lee,  45  Md.  60. 

18  Nicholson  v.  Revill,  4  Ad.  A  E.  675. 

53 


818  PAYMENT  OR  OTHER  DISCHARGE. 

leases  all ;  but  an  unsealed  release  does  not.1  By  tlie  statute,  a  note 
or  memorandum  in  writing  given  by  a  creditor  to  a  partner  after 
dissolution,2  or  to  one  of  several  joint  debtors,8  may  be  given  in 
evidence  in  bar  of  the  creditor's  action  against  the  releasee,  but 
without  prejudice  to  his  right  to  recover  against  the  other  debtors, 
and  to  their  right  of  set-off.4  A  release  of  one  of  several  joint 
debtors,  if  not  produced,  will  not  be  presumed  to  have  been  ab- 
solute, without  proof.5 

31.  Oral  evidence."] — Oral    evidence  is   competent    for  the 
purpose  of  showing  the  obligations  to  which  it  applies;6   but 
not  to  contradict  its  terms  by  excluding  one  to  which  they  appar- 
ently apply.7     An  unsealed  release  may  be  supported  by  evi- 
dence that  it  was  given  on  a  sufficient  consideration  ;  and  this 
may  be  shown  by  parol,  though  the  writing  be  silent8  or  express 
a  nominal  or    different    consideration.9    Parol    evidence    that 
plaintiff  signed  on  conditions  not  expressed,  is  not  competent  for 
the  purpose  of  exonerating  him  from  its  effect.10 

32.  Impeaching.'] — A  sealed  release  u  cannot  be  impeached  for 
want  of  consideration.12     The  burden  of  proving  fraud  or  mis- 
take is  on  plaintiff  if  he  rely  on  it  to  avoid  his  release.18    A 
promise  to  pay  the  debt,  in  consideration  of  the  release,  cannot  be 
proved.14 

YI1.  SURETYSHIP  AND  MODIFICATION  OF  CONTRACT. 

33.  Defendant  a  surety."] — Under  the  new  procedure  (as  for- 
merly in  equity,  and  in  some  courts  of  law),  oral  evidence  that 
defendant  was  a  surety  is  admissible,  in  an  action  between  the 
obligors  in  a  written  instrument,  and  equally  against  other  parties 


I  Irvine  v.  Millbank,  15  Abb.  Pr.  N.  S.  378,  affi'g  14  Id.  408,  s.  o.  36  Super.  Ct. 
(J.  &  S.)  264;  Morgan  v.  Smith,  70  N.  Y.  537,  543. 

9  L.  1838,  p.  242,  c.  257,  §  2,  as  am'd  by  L.  1845,  p.  410,  c.  348  (same  stat.  2  R.  S. 
6ed.  llr-7,  §27). 

3  Id.  §  5. 

4  Id.  §§  2,  3. 

5  ;>olaiid  v.  Crosby,  49  N.  Y.  183.     The  burden  seems  to  be  put  by  the  statute 
on  the  debtors,  to  show  that  the  release  was  intended  to  discharge  all.     §  3,  last 
clause. 

6  Howe  v.  Thompson,  15  Abb.  Pr.  377 ;  Strong  v.  Dean,  55  Barb.  337 ;  Hewlett 
v.  Hewlett,  56  Barb.  467. 

1  For  instance,  to  show  that  a  release  of  "  all  demands  "  was  not  intended  to  re- 
lease a  particular  debt.     Pierson  v.  Hooker,  3  Johns.  68. 
8  Fryik  v.  Green,  5  Barb.  455. 
»  See  pp.  738,  741  of  this  vol. 

10  Van  Bokkelen  v.  Taylor,  62  N.  Y.  105,  rev'g  2  Hun,  138,  8.  c.  4  Supm.  Ct.  (T. 
i  C.)  422;  Acker  v.  Phoenix,  4  Paige,  305  ;  and  see  p.  507  of  this  vol. 

II  As  distinguished  from  a  composition  deed.     Russell  v.  Rogers,  15  Wend.  351. 
18  Gray  v.  Barton,  55  N.  Y.  68  ;  Terry  v.  Black,  58  Id.  185. 

13  Crossley  v.  The  St.  Louis,  4  Ben.  510 ;  Schmidt  v.  Herforth,  5  Robt.  124. 

14  Stearnes  v.  Tappin,  5  Duer,  294.    As  to  new  promise  compare  p.  821  of  this 
voi,  and  Stearns  v.  Tappin  (above). 


DISCHARGE.  819 

to  or  holders  of  it,  if  they  dealt  with  it  with  actual  notice  of  the 
fact  of  suretyship.1  Actual  notice  to  the  creditor,  of  the  fact 
of  suretyship,  at  or  before  the  time  of  the  act  complained  of, 
must  be  shown ;  hut  for  this  purpose  it  is  enough  if  the  fact  ap- 
pear on  the  face  of  the  security.2 

34.  Modification.'] — An  extension  or  modification  of  the  con- 
tract may  be  proved  by  evidence  which  would  be  competent 
in  favor  of  the  principal. 


VIII.   DlSCHABGE. 

35.  In  bankruptcy.'] — A  discharge,  even  though  granted  pend- 
ing the  action,8  is  not  admissible  in  evidence  unless  pleaded.4 
In  case  of  a  discharge  under  the  Bankrupt  Act  of  1867,  or  the 
United  States  Revised  Statutes,  a  general  allegation  that  on  a  day 
named  it  was  duly  granted  to  the  bankrupt  (setting  forth  a  copy) 
is  enough  to  admit  the  evidence.5  Defendant  has  the  burden  of 
proving  his  discharge.6  The  certificate  is  admissible  without  the 
record  of  proceedings;7  and  is  conclusive  evidence  of  the  fact 
and  regularity  of  the  discharge.8 

Plaintiff  has  the  burden  of  proving  that  his  demand  is  one  of 
a  class  excepted  by  the  statute  from  the  operation  of  the  dis- 
charge, for  example,  that  it  is  for  money  received  in  a  fiduciary 
capacity.9 

In  case  of  &  foreign  bankruptcy,  the  burden  is  on  defendant 
to  show  affirmatively  that  the  contract  or  the  parties  to  it  were 


1  Hubbard  v.  Gnrney,  64  N.  T.  457;  and  cas.  cit.  in  11  MoaFs  Eng.  R.  41,  n. 
183;  17  Id.  183;  Artcher  v.  Douglass,  6  Den.  509;  Garrett  v.  Ferguson,  9  Mo.  125; 
B:  P.  1  Greenl.  Ev.  §  281,  n.  2,  and  cas.  cit. ;  H>,rne  v.  Bod  well,  5  Gray,  457. 

*  Gahn  v.  Nieracewicz,  11  Wend.  812,  affi'g  3  Paige,  614. 

*  Rudge  v.  Rundle,  1  Supm.  Ct,  (T.  &  C.)  649  ;  Lump  on  Bkcy.  (7  ed.)  748. 
4  Horner  v.  8pe!man,  7S  111.  206  ;  Bump  on  Bkcy.  743. 

8  U.  S.  R.  S.  §  5119 ;  Hays  v.  Ford,  55  Ind.  52 ;  N.  Y.  Code  Civ.  Pro.  §  532. 

6  Cooper  v.  Cooper,  9  N/J.  Eq.  (1  Stockt.)  566,  569. 

7  Morse  v.  Cloyes,  11  Barb.  100,  104,  rev'd  on  other  grounds  in  Seld.  Notes,  No. 
5,  p.  12  ;  Bump  on  Bkcy.  752. 

8  U.  8.  R.  8.  §  5120;  Dusenbury  v.  Hoyt,  14  Abb.  Pr.  N.  S.  132,  a.  c.  36  N.  Y. 
Super.  Ct.  (J.  <fe  S.)  98,  rev" d  on  another  ground  in  53  N.  Y.  521  ;  Stern  v.  Nussbaum, 
5  Daly,  382,  s.  c.  47  How.  Pr.  489.     The  presumption  that  tho  necessary  final  oath 
was  taken  is  not  overcome  by  the  mere  fact  that  it  is  not  found  on  file.     Youn<;  v. 
Ridenbaugh,  3  Dill.  C.  Ct.  289.     The  rules  of  pleading  and  evidence  as  to  discharges 
under  prior  acts  are  more  strict.     See  Morse  v.  Cloyes,  11  Barb.  100,  rev'd  on  other 
grounds  in  Seld.  Notes,  No.  6,  p.  12;    and  cases  cited  in  Bump  on  Bkcy.  749;  and 
cises  below  cited;  Schermerhorn  v.  Talman,  14  N.  Y.  93;  Sherwood  v.  Mitchell,  4 
Den.  435. 

But  even  in  respect  to  those  discharges,  there  is  a  legal  presumption  in  favor  of 
the  regularity  of  the  proceedings.  McCormick  v.  Pickering,  4  N.  Y.  276. 

9  Snerwood  v.  Mitchell,  4  Den.  435  ;  Harrison  v.  Lourie,  49  How.  Pr.   124,  127. 
Contra,  Clement  v.  Hay  den,  4  Penn.  St.  138. 


820  PAYMENT  OR  OTHER  DISCHARGE. 

such  that  the  foreign  law  could  discharge  the  liability,1  and  that 
the  requirements  of  the  law  were  complied  with.2 

36.  —  impeachingJ] — Unless  a  reply  was  required,  the  facts 
relied  on  to  avoid  a  discharge  may  be  proved  in  rebuttal,  though 
not  alleged.3 

A  discharge  of  the  United  States,  under  the  act  of  1867  or 
the  Revised  Statutes,  cannot  be  impeached  in  a  State  court  for 
any  cause  which  would  have  prevented  the  granting  of  the  dis- 
charge under  the  bankrupt  act,  or  which  would  have  been  suffi- 
cient ground  for  annulling  the  discharge  in  the  United  States  court 
under  the  act,4  nor  even  on  the  ground  that  it  was  fraudulently 
obtained.5  It  is  impeachable  for  entire  want  of  jurisdiction. 

37.  Insolvency.'] — The  discharge,  even  though  granted  pend- 
ing the   action,  is  not   admissible  unless  pleaded.6    A  general 
allegation  that  it  was  duly  given  or  made  will  admit  it;7  but  if 
the  allegation  is  put  in  issue,  defendant  must  show  jurisdiction.8 
The  certificate  of  discharge,  if  it  recite  the  jurisdictional  facts, 
is  admissible  in  evidence  without  the  record  of  the  proceedings;9 
and  is  prima  facie  sufficient10  (though  not  conclusive11)  evidence 
of  jurisdictional  facts.     Its  recitals  are  conclusive  evidence  of  the 
existence   and  regularity  of  the  non-jurisdictional  matters  re- 
cited.12    Extrinsic  evidence  of  regularity  is  competent.18    Defend- 
ant is  bound  to  show  that  the  contract  or  parties  to  it  were  such 
that  the  State  discharge  could  be  operative  upon  it;14  but  it  is  for 
plaintiff  to  show  that  his  debt  was  not  provable. 


1  Green  v.  Sarmiento,  3  Wash.  C.  Ct.  17,  s.  0.  Pet.  C.  Ct.  74 ;  and  see  Munroe  v. 
Guilleaume,  3  Abb.  Ct.  App.  Dec.  334. 

2  Fielmann  v.  Hrunner,  2  Hun,  354,  s.  o.  4  Supm.  Ct.  (T.  <fc  C.)  556. 
8  Ruckman  v.  Co  well,  1  N.  Y.  505,  s.  c.  7  N.  Y.  Leg.  Obs.  7. 

4  Corey  v.  Ripley,  57  Maine,  69,  s.  c.  2  Am.  R.  19. 

8  Ocean  National  Bank  v.  Olcott,  46  N.  Y.  12 ;  Poillon  v.  Lawrence,  43  Super.  Ct. 
(J.  <fe  S.)  385.  Contra,  Batchelder  T.  Low,  43  Vt.  662,  s.  c.  5  Am.  R.  311.  Com- 
pare Payne  v.  Able,  7  Bush,  344,  s.  o.  3  Am.  R.  316 ;  Hennessee  v.  Mills,  57  Tenn.  38. 

6  Cornell  v.  Dakin,  38  N.  Y.  253 ;  Spencer  v.  Beebe,  17  Wend.  557. 

'  N.  Y.  Code  Civ.  Pro.  §  532. 

8  Id. 

9  O'Connell  v.  Sutherland,  16  Abb.  Pr.  460,  note. 

10  Barber  v.  Winslow,   12   Wend.  103,  and  cas.  cit ;   Jay  v.  Slack,  4  N.  J.  L.  (1 
South.)  77. 

11  Morrow  v.  Freeman,  61  N.  Y.  615. 

12  Stanton  v.  Ellis,  12  N.  Y.  575.     Or  at  least  prima  facie.     Blanchard  v.  Young, 
11  Cush.  341.     Aa  to  effect  if  omission  to  file  papers  under  the  two-thirds  act  see 
Barnes  v.  Gill,  13  Abb.  Pr.  N.  S.  169. 

13  Bullymore  v.  Cooper,  46  N.  Y.  236,  affi'g  2  Lans.  71.     What  presumptions  arise 
from  defects  in  the  record,  see  Soule  v.  Chase,  1  Robt.  222,   s.  c.  1   Abb.  Pr.  N.  9. 
48,  rev'd,  on  another  point,  in  89  N.  Y.  342;  People  ex  rel.  Pacific  Mutual  Ins.  Co. 
v.  Machndo,  16  Abb.  Pr.  460;  Salters  v.  Tobias,  3  Paige,  338;  Ayres  v.  Scribner, 
17  Wend.  407. 

14  Smith  v.  Bennett,  17  Wend.  479  ;  s.  p.  Green  v.  Sarmiento,  8  Wash.  C.  Ct.  17, 
8.  c.  Pet.  C.  Ct.  74.   For  the  mode  of  proving  domicil  and  citizenship,  see  Chapter  V. 
For  the  effect  of  a  State  insolvent  discharge,  in  respect  to  citizens  affected,  see 
Baldwin  v.  Hale,  1  Wall.  223,  and  cases  there  cited ;  Matter  of  Coates,  3  Abb,  Ct. 
App.  Dec.  231. 


DISCHARGE.  821 

38.  New  promise.] — Plaintiff  may  prove  in  rebuttal,  a  new 
promise1  if  made  after  discharge.2  Acknowledgment  or  mere 
expression  of  intention  is  not  enough.3  The  promise  must  be 
clear,  distinct  and  unequivocal.4  If  conditional,  the  occurrence  of 
the  condition  must  be  shown.5 


1  Dusenbury  v.  Hoyt,  53  N.  Y.  521,  rev'g  36  Super.  Ct.  (J.  &  S.)  94  ;  14  Abb. 
Pr.  N.  S.  132. 

8  Promise  before  discharge  is  irrelevant.  Reed  v.  Frederich,  8  Gray,  230.  The 
date  of  a  written  promise  may  be  supplied  by  oral  evidence.  See  Lobb  v.  Stanley, 
5  Q.  B.  574. 

8  Allen  <fc  Co.  v.  Ferguson,  18  "Wall.  1,  citing  Hill  on  Bkcy.  264-6,  and  cases 
tbere  collected. 

4  Id. ;  Stern  v.  Nussbaum,  5  Daly,  382,  s.  o.  47  How.  Pr.  489. 

*  Allen  v.  Ferguson  (above);  Scouton  v.  Eislord,  7  Johns.  36;  Etlar  v.  Galbraith, 
16  Am.  L.  Reg.  N.  S.  78. 


CHAPTER  LXI. 

LIMITATIONS. 

1.  Pleading.  6.  Acknowledgment. 

2.  Burden  of  proof.  6.  Part  payment. 

8.  New  promise.  7.  Indorsement  of  payments. 

4.  Conditional  new  promise. 

1.  Pleading.'] — Even  though  plaintiff  shows  a  case  to  which 
the  statute  appears  to  be  a  bar,  the  statute  is  not  available  to  de- 
fendant   unless    he  has  pleaded  the  facts  necessary  to  give  it 
application.1    If  pleaded,  the  burden  is  on  plaintiff  to  show  any 
suspension  of  the  statute  on  which  he  relies.2 

2.  Burden  of  proof ,~\ — Under  a  plea  of  the  statute,  the  bur- 
den is  on  plaintiff  to  show  the  commencement  of  action  within 
the  statute  period.3    Under  the  new  procedure,  service,  or  the 
time  of    delivery  to  the  sheriff  for  the  purpose  of  service,  is 
usually  the  time.4    At  common  law  the  date  of  the.  process  is 
prima,  fade  evidence  of  the  time  when  it  was  sued  out,5  but 
does  not  exclude  extrinsic  evidence.6    An  indorsement  by  the 
deputy  sheriff  of  its  delivery  at  the  office,  is  not  evidence  of  the 
date  of  its  delivery,  for  the  statute  does  not  require  him  to  make 
such  indorsement.7     It  is  not  necessary  to  show  that  the  process 
was  actually  returned,  nor  (at  common  law8)  even  that  it  was 
actually  delivered  to  the  sheriff ;  but  it  must  be  proved  that  it 
was  sent  to  him,  or  his  deputy,  with  an  absolute  and  uncon- 
ditional intention  to  have  it  served.9     Oral  declarations  of  trust, 
though  incompetent  evidence  to  establish  the  trust,  are  compe- 
tent to  show  that  at  the  time  they  were  made  the  alleged  trustee 


1  N.  Y.  Code  Civ.  Pro.  §  413.  The  rule  is  satisfied  by  pleading  the  facts  without 
mentioning  the  statute.  Harpending  v.  Reformed  Dutch  Ch.  16  Pet.  455.  This 
rule  may  be  applied  to  special  statutory  limitations  such  as  that  of  divorce.  Kaiser 
v.  Kaiser,  16  Hun,  602.  Otherwise  of  delay,  and  stateness  of  claim  in  equity.  Sul- 
livan v.  Portland,  Ac.  R.  R.  Co.  94  U.  S.  (4  Otto),  806.  Plaintiff  may  rely  on  the 
statute,  though  not  pleaded,  to  bar  any  demand  proved  by  defendant  which  did  not 
call  for  a  reply.  Mann  v.  Palmer,  8  Abb.  Ct.  App.  Dec.  162. 

J  Baldwin  v.  Martin,  14  Abb.  Pr.  N.  S.  9,  8.  c.  35  Super.  Ct.  (J.  <fe  S.)  85,  and 
caa.  cit.;  Graham  v.  Schmidt,  1  Sandf.  74. 

3  2  Greenl.  Ev.  §  431 ;  Taylor  v.  Spears,  1  Eng.  (6  Ark.)  381. 

4  N.  Y.  Code  Civ.  Pro.  §  399. 
»2  Greenl.  Ev.  §431. 

•  Id. ;  Porter  v.  Kimball,  8  Lans.  830. 

1  Wardwell  v.  Patrick,  1  Bosw.  406.     Compare  N.  Y.  Code  Civ.  Pro.  §  100. 

*  See  N.  Y.  Code  Civ.  Pro.  §  399. 
'  Bnrdick  v.  Green,  18  Johns.  14. 

[822] 


LIMITATIONS.  823 

had  not  begun  to  claim  adversely,  and  thus  show  that  the  statute 
had  not  then  attached.1 

The  burden  is  on  plaintiff  to  show  the  existence  of  facts 
which  he  relies  on  to  create  an  exception  from  the  general  rule 
of  the  statute.8  Where  it  is  incumbent  on  plaintiff  to  prove 
that  he  was  under  a  disability,  he  must  show  that  it  was  a  con- 
tinuing disability  from  the  hrst.8  Where  fraud  is  available  to 
suspend  the  running  of  the  statute  the  presumption  is,  that  if  the 
party  affected  might  with  ordinary  care  and  attention  have  sea- 
sonably detected  it,  he  seasonably  had  actual  knowledge  of  it.4 
The  burden  is  on  the  debtor,  whose  absence  has  been  shown  and 
who  relies  on  his  return  to  the  State,  to  prove  the  facts  requisite 
to  render  his  return  effectual  as  the  origin  of  the  statute  bar.5 

3.  New  promise^ — A  new  promise  is  admissible  in  rebuttal 
though  not  alleged.6  Otherwise  of  a  promise  varying  the  con- 
tract.7 The  evidence  must  show  an  express  promise  to  pay, 
absolute  or  conditional,  or  an  acknowledgment  of  the  debt  as 
subsisting,  made  under  such  circumstances  that  such  a  promise 
may  be  implied.8  The  promise  must  be  made  to  the  creditor,  or 
some  one  acting  for  him,  or  if  made  to  a  third  person  must  be 
calculated  and  intended  to  influence  the  action  of  the  creditor.9 
Under  the  present  statute  an  acknowledgment  or  new  promise, 
relied  on  to  take  the  case  out  of  the  limitation,  must  be  in 
writing,  signed  by  the  party  sought  to  be  charged.10  This  statute 


1  Barker  v.  White,  58  N.  Y.  204. 

2  Ford  v.  Babcock,  7  N.  Y.  Leg.  Obs.  270,  B.  o.  2  Sandf.  518 ;   Somerville  v.  Ham- 
ilton, 4  Wheat.  230,  234. 

3  Ang.  on  Lira.  204,  S  196. 

4  Ang.  on  Lira.  193,  §  187. 

5  Cole  v.  Jessup,  2  Barb.  309,  314;  Ford  v.  Babcock,  7  N.  Y.  Leg.  Obs.  270,  280, 
8.  o.  2  Sandf.  618.     If  the  contract  was  made  without  the  State  the  burden  is  on  de- 
fendant to  show  residence  within  it  for  the   statute  period.     Mayer  v.  Friedman,  7 
Hun,  218.  affi'd  69  N.  Y.  608. 

'•  Esseltyn  v.  Weeks,  12  N.  Y.  635,  s.  o.  2  Abb.  Pr.  272  ;  Dusenbury  v.  Hoyt,  63 
Id.  621 ;  Yaw  v.  Kerr,  47  Penn.  St.  333. 

1  Lonsdale  v.  Brown,  3  Wash.  404. 

8  Wakeman  v.  Sherman,  9  N.  Y.  85;  Meyerhoff  v.  Froelich,  27  Weekly  R.  258. 
If  there  was  more  than  one  debt,  a  general  acknowledgment  of  indebtedness  is  not 
sufficient  alone  as  evidence  of  a  new  promise  to  pay  either  one.  Stafford  v.  Bryan, 
3  Wend.  632,  536;  and  see  1  Pet.  351. 

»  Wakeman  v.  Sherman  (above);  Sibert  v.  "Wilder,  16  Kan.  176,  s.  c.  22  Am.  R. 
28n. 

•  10  N.  Y.  Code  Civ.  Pro.  §  395 ;  Esselstyn  v.  Weeks,  2  Abb.  Pr.  272,  s.  c.  12  N.  Y. 
635  ;  and  see  Adger  v.  Alston,  15  Wall.  555,  561.  And  an  account  stated,  not  signed, 
cannot  be  regarded  as  a  new  contract  to  sustain  an  action  when  action  on  the  original 
indebtedness  is  barred  by  tie  statute.  Cliace  v.  Trafford,  116  Mass.  529,  s  c.  17 
Am.  R.  171.  The  debtor's  specifying  the  demand  in  nn  assignment  for  benefit  of 
creditors,  may  be  enouirh  as  a  new  promise  (Pickett  v.  King,  34  Barb.  193),  but  a 
part  payment  by  his  assignee  does  not  revive  the  debt  again  as  of  the  date  of  the 
payment.  Roosevelt  v.  Mark,  6  Johns.  Ch.  266.  As  to  promises  of  joint  debtors, 
partners  after  dissolution,  <fec.,  see  p.  1 84  of  this  vol.  and  Beardsley  v.  Hall,  36 
Conn.  270,  s.  c.  4  Am.  R.  74.  In  those  jurisdictions  where  the  statute  does  not  re- 
quire a  new  promise  to  be  in  writing,  the  statute  i>f  frauds  does  not  require  it,  if  the 
original  contract  was  in  writing.  Brandt  on  Suretyship  &  G.  85,  §  65. 


824  LIMITATIONS. 

does  not  .alter  the  requisite  acknowledgment  or  new  promise,  but 
only  requires  it  to  be  in  writing,  signed ; l  and  the  date  of  the 
writing  may  be  shown  by  oral  evidence,2  even  for  the  purpose  of 
correcting  an  erroneous  date.3  And  oral  evidence  is  competent 
to  connect  the  new  promise  with  the  original  debt.4 

4.  Conditional  new  promised] — If  the  new  promise  was  con- 
ditional, plaintiff  must  at  least  give  evidence  from  which  the  jury 
may  infer  fulfillment   of  the  condition,  as  expressed.5    If  the 
promise  was  to  pay  in  specific  articles,  plaintiff  must  show  that 
he  was  ready  and  offered  to  accept  them.      Promise  to  pay  when 
able,   is  insufficient  without  evidence  of  the  ability  to  pay.6 
Direct  evidence  of  ability  is  not  necessary ;  it  may  be  inferred 
from  circumstances.7    To  show  continuing  inability,  defendant 
may  prove  his  indebtedness  to  third  persons  without  producing 
or  accounting  for  written  securities.8 

5.  Acknowledgment.] — Evidence  of    an  acknowledgment   is 
not  enough  unless  it  suffices  to  sustain  an  inference  of  promise  ;9 
but  an  acknowledgment  without  words  importing  intent  to  pay 
may  suffice.10    The  production  of  the  instrument  sued  on,  with 
an  indorsement  in  the  handwriting  of  the  debtor,  of  his  name 
and  the  date  of  the  indorsement,  is  a  sufficient  acknowledgment 
in  a  writing  signed  by  the  party  chargeable,  within  the  meaning 
of  the  statute. 

6.  Part  payment^] — The  statute  requiring  a  new  promise  to 
be  in  writing  does  not  prescribe  any  new  rule  of  evidence  as  to 
the  fact  or  effect  of  payment ;  and  part  payment  may  be  proved 
by  oral  admissions  of  the  debtor.12     Where  a  part  payment  relied 
on  was  made  by  an  agent,  the  evidence  must  sustain  an  inference 
that  the  agent  had  authority  to  make  a  new  promise,  or  to  per- 
form for  the  party  the  very  act  which  is  relied  on  as  evidence  of 
a  new  promise.13    The  authority  of  the  agent  may  be  proved  by 
parolX    If  defendant  or  his  authorized  agent  made  the  payment, 
it  is  immaterial  whose  money  was  used.15 


1  Kincaid  v.  Archibald,  73  N.  Y.  189,  192,  affi'g  10  Hun,  9. 
*  Edmonds  v.  Downs,  2  C.  <fc  M.  459. 

3  Kincaid  v.  Archibald,  73  N.  Y.  189,  193,  and  cases  cited. 

4  Ilsley  v.  Jewett,  2  Mete.  168,  173. 

6  Cartledge  v.  West,  2  Den.  377  ;  Wakeman  Y.  Sherman,  9  N.  Y.  85  ;  Bush  v. 
Barnard,  8  Johns.  407.  . 

6  Id.;  Tompkins  v.  Brown,  1  Den.  247;  Chandler  v.  Glover,  32  Penn.  St.  509. 

I  Thus  the  fact  that  he  was  in  business  and  kept  open  store  is  enough  to  go  to  the 
jury.    Lonsdale  v.  Brown,  4  Wash.  C.  Ct.  86.     The  mere  fact  of  his  having  a  sign 
of  business  over  his  door  is  not  enough.     Everson  v.  Carpenter,  17  Wend.  419,  422. 

8  Duffie  v.  Phillips,  31  Ala.  571. 

9  Van  Keuren  v.  Parmelee,  2  N.  Y.  523. 

10  Cowan  v.  Magauran,  Wall.,  Jr.  66,  and  cas.  cit. 

II  Bourdin  v.  Greenwood,  L.  R.  13  Eq.  Cas.  281,  s.  c.  1  Moak's  Eng.  677. 
1S  First  National  Bank  of  Utica  v.  Ballou,  49  N.  Y.  155;  2  Lans.  120. 

13  Smith  v.  Ryan,  66  N.  Y.  352,  356,  affi'g  39  Super.  Ct.  (J.  <k  S.)  489. 

14  First  Nat.  Bank  of  Utica  v.  Ballou,  49  N.  Y.  156. 
"Id. 


LIMITATIONS.  825 

The  part  payment  must  be  an  actual  transfer  of  something  of 
value,  not  a  mere  indorsement  or  deduction  ; 1  and  it  must  be 
shown  to  have  been  made  under  circumstances  which  will  war- 
rant a  finding,  as  a  question  of  fact,  that  the  debtor  intended  to 
recognize  the  debt  as  subsisting,  and  that  he  was  willing  to  pay 
it ; 2  but  its  effect  is  not  impaired  by  evidence  that  he  supposed 
the  part  payment  would  extinguish  the  whole.8 

Evidence  of  mere  payment  of  money  is  not  enough  without 
something  to  connect  it  with  the  debt  in  suit.4 

The  effect  of  a  part  payment,  as  against  the  statute,  may  be 
repelled  by  evidence  that  the  debtor,  at  the  time  of  making  it,  ex- 
pressly disputed  the  balance  or  the  item  now  contested.5 

7.  Indorsement  of  payment^ — An  indorsement  on  the  instru- 
ment sued  on,  acknowledging  a  part  payment,  and  dated,  is  com- 
petent, and  sufficient  to  go  to  the  jury,  if  in  the  handwriting  of 
the  defendant ;  or,  when  in  Jhe  handwriting  of  the  creditor  who 
is  shown  to  have  since  deceased,6  if  there  is  extrinsic  evidence  of 
the  date.7  In  other  cases  an  indorsement  on  the  security,  made 
by  the  creditor  without  the  privity  of  the  debtor,  is  not  evidence 
of  the  payment  for  this  purpose,  unless  it  appear  that  it  was 
made  at  a  time  when  its  operation  would  be  against  the  interest 
of  the  person  making  it.  With  such  evidence  it  is  sufficient  to 
go  to  the  jury.8 


1  Blanchard  v.  Blanchard,  122  Mass.  558,  s.  o.  23  Am.  R.  397. 

J  Pickett  v.  King,  34  Barb.  193.  Hence  compulsory  payment  is  not  enough. 
Morgan  v.  Rowlands,  L.  R.  7  Q.  B.  493,  s.  c.  2  Moak's  Eng.  611,  and  cas.  cit.  In 
application  of  the  same  principle,  the  delivery  of  a  bill  or  note  of  a  third  person  as 
collateral  security  or  as  provisional  or  conditional  part  payment,  is  competent  evi- 
dence within  the  rule  allowing  evidence  of  payment,  and  whether  the  security  re- 
sulted in  part  payment  or  not  is  immaterial.  Smith  v.  Ryan,  66  N.  Y.  352,  355,  affi'g 
39  Super.  Ct.  (J.  <fe  S.)  489.  But  on  the  other  hand,  a  part  payment  derived  from  a 
collateral  security,  without  the  assent  of  the  debtor  to  it  as  a  payment;  is  not 
alone  sufficient  as  a  new  promise.  Harper  v.  Fairley,  53  N.  Y.  442. 

3  Carrington  v.  Crocker,  87  N.  Y.  336,  s.  o.  4  Abb.  Pr.  N.  S.  335. 

*  Livermore  v.  Rand,  26  N.  II.  (6  Post.)  85. 

B  Peck  v.  N.  Y.  and  Liverpool  S.  S.  Co.  5  Bosw.  226,  237. 

•  Risley  v.  Wightman,  13  Hun,  163,  165  ;  1  Greenl.  Ev.  13th  ed.  155. 

7  Whether  this  is  necessary  compare  Risley  v.  Wightman  (above);  Knight  v. 
Clements  (above);  1  Greenl.  Ev.  154,  §§  121,  l'J2;  Miller  v.  Dawsou,  26  Iowa,  186. 
6  lloeeboom  v.  Billington,  17  Johns.  182. 


CHAPTEE  LXTI. 

FORMER  ADJUDICATION. 

1.  General  Rules.  10.  Joint  defendants. 

2.  Former  recovery  as  merging  the  11.  Form  of  the  adjudication. 

cause  of  action.  12.  Record  to  be  produced. 

8.  Splitting  cause  of  action.  13.  "What  questions  were  determined 

4.  Former  adjudication    as  an  es-                       by  it. 

toppel.  14.  Oral  evidence  to  explain  record. 

6.  What  questions  are  concluded.  15.  Set-off. 

6.  Construction  of  instrument.  16.  Rebuttal:  Want  of  Jurisdiction. 

7.  Courts  and  tribunals.  1 1.  —  fraud. 

8.  Exclusive  jurisdiction.  18.  —  appeal ;  reversal. 

9.  Parties.  19.  —  new  title. 

1.  General  fiules.] — The  general  rules  are :  1.  The  judgment 
of  a  court  of  concurrent  jurisdiction  directly  upon  the  point  is,  as  a 
plea,  a  bar,  or,  as  evidence,  conclusive  between  the  same  parties, 
on  the  same  matter  directly  in  question  in  another  court ;  2.  The 
judgment  of  a  court  of  exclusive  jurisdiction  directly  upon  the 
point  is,  in  like  manner,  conclusive  upon  the  same  matter  between 
the  same  parties,  coming  incidentally  in  question  in  another  court 
for  another  purpose ;  3.  But  neither  the  judgment  of  a  concur- 
rent or  exclusive  jurisdiction  is  evidence  of  any  matter  incident- 
ally cognizable,  nor  of  any  matter  to  be  inferred  by  argument 
froift  the  judgment.1 

1  Duchess  of  Kingston's  Case,  20  How.  St.  Tr.  538,  s.  c.  2  Smith's  L.  Cas.  609 ; 
Caujolle  v.  Ferric,  13  Wall.  465,  469.  The  conclusive  effect  is  lost  if  opportunity  to 
plead  has  been  had  and  neglected.  Page  828,  n.  1.  The  reader  will  be  assisted  in 
harmonizing  the  otherwise  irreconcilable  conflict  which  apparently  exists,  even  among 
well  considered  decisions,  if  he  bears  in  mind  the  distinctions  between  the  following 
important  classes  of  cases,  which  are  all  comprehended  under  the  general  designation 
of  "  former  adjudication."  1.  Where,  to  prevent  plaintiff  from  maintaining1  any  ac- 
tion, defendant  insists  that  he  has  already  had  his  action  on  the  same  cause  and  it 
haa  been  determined  against  him.  Here  the  judgment  is  a  bar.  2.  Where  defendant 
adduces  a  judgment  between  himself  and  plaintiff,  as  evidence  of  the  truth  of  de- 
fendant's allegation  of  fact  or  denial  Here  if  the  action  was  for  the  same  cau?e,  the 
judgment  is  conclusive  on  every  question  that  might  have  been  litigated;  if  on  an- 
other claim  or  demand,  it  Ls  conclusive  as  to  those  questions  which  actually  were  liti- 
gated and  determined.  3.  Where  he  adduces  it  as  determining  the  construc;ion  of  a 
contract  between  them,  or  of  a  statute  on  which  their  controversy  turns.  4.  Where, 
to  prevent  plaintiff  from  maintaining  any  action,  defendant  insists  that  he  has  already 
had  his  action  and  recovered  judgment  on  facts  now  alleged.  Here,  although  the 
judgment  may  be  evidence  of  the  truth  of  the  allegations  of  the  complaint,  it  merges 
the  cause  of  action,  and  though  the  allegations  be  true  the  court  will  not  give  plaintiff 
a  second  judgment.  See,  for  the  limits  of  this  rule,  4  Abb.  N.  Y.  Dig.  new  ed.  86 ; 
8  Id.  452-74 ;  1  Id.  268.  6.  Where  he  alleges  that  plaintiff  has  sued  for  and  recov- 
ered a  part  of  an  entire  claim  which  cannot  be  split.  Here  the  court,  upon  the  same 
principle,  will  not  entertain  a  second  action,  although  it  be  clear  that  something  re- 
mained due  and  unrecovered,  which  ought  to  have  been  recovered  in  the  first  action. 

[826] 


FORMER  ADJUDICATION.  827 

2.  Former  recovery  as  merging  the  cause  of  action^} —  A 
former  recovery  in  favor  of  plaintiff,  relied  on,  not  as  furnishing 
evidence  in  support  of  defendant's  present. allegations,  but  as  merg- 
ing the  cause  ol  action  and  constituting  a  bar  to  a  new  action,  is 
not  admissible  if  not  pleaded.1 

3.  Splitting  cause  of  action. ,] — A  judgment  in  a  former  action 
brought  only  for  a  part  of  the  same  cause  of  action,  is  admissible 
(if  pleaded)  to  bar  recovery  for  the  residue ;  and  all  the  items  of 
a  running  account  constitute  a  single  cause  of  action  within  this 
rule,2  and  so  do  all  sums  due  on  a  single  covenant,  at  the  time  of 
commencement  of  action.3 

4.  Former  adjudication  as  an  estoppel.'] — "Where  a  former  ad- 
judication is  pleaded  as  an  estoppel,  it  is  a  conclusive  bar.    Where 


See  1  Id.  627 ;  Jex  v.  Jacob,  7  Abb.  New.  Cns.  453 ;  Perry  v.  Dickenson,  Id.  466. 
6.  Where"  he  alleges  that  in  a  former  action  by  himself  against  the  plaintiff,  the  latter 
ought  to  have  set-off  what  he  now  alleges,  and  by  failing  to  do  BO  is  concluded,  bee 
Blair  v.  Bartlett,  75  N.  Y.  150. 

Independent  of  the  rules  stated  in  the  text,  judicial  proceedings  may  be  given  in 
evidence,  like  anything  else,  as  circumstances  from  which  to  infer  a  g  ven  conse- 
quence, without  that  concurrence  as  to  identity  of  parties  and  subject-matter  which 
works  a  technical  bar.  Van  Rensselaer  v.  Akin,  22  Wend.  n49.  The  pleading  of  a 
party  in  a  former  proceeding,  is  competent  against  him  (without  reference  to  identity 
of  subject  or  parties),  if  shown  to  have  been  made  with  his  knowledge  or  sanction. 
Cook  v.  Barr,  44  N.  Y.  156.  But  is  not  conclusive  unless  there  ia  some  ground  for 
treating  it  as  raising  an  estoppel.  Id. 

When  used  for  other  objects  than  as  a  bar  or  estoppel,  as  for  instance  in  deraign- 
ing  a  title  or  to  show  a  confession,  or  an  act  done,  the  reason  of  the  rule  restricting 
the  evidence  to  a  case  between  the  same  parties  ceases.  A  mere  stranger  to  a  verdict 
and  judgment,  for  instance,  who  claims  laud  in  virtue  of  a  purchase  upon  execution, 
may  give  the  record  in  evidence.  A  plea  of  guilty  to  an  indictment  for  an  assault 
and  battery,  may  be  received  as  evidence  against  the  defendant  in  a  civil  action  at  the 
suit  of  the  prosecutor;  an  answer  in  chancery  in  one  suit,  is  admissible  in  another 
between  different  parties.  Walsh  v.  Ostrander,  22  Wend.  177,  COWEX,  J;  Ban*  v. 
Gratz,  4  Wheat.  213.  And,  where  reputation  is  relevant,  a  judgment  between  dif- 
ferent parties  establishing  the  fact,  is  competent  evidence  of  reputation.  Reed  v. 
Jackson,  1  East,  355.  Where  pleadings  and  a  judgment  or  decree  are  put  in  evidence 
for  such  a  purpose  to  prove  a  fact  which  appears  on  the  face  of  those  documents  to 
have  been  in  issue,  the  party  producing  them  is  not  bound  also  to  put  in  the  deposi- 
tions as  part  of  his  own  case.  Laybourn  v.  Crisp,  4  M.  <fe  \V.  320;  Rose.  N.  P.  128. 

1  Morris  v.  Amos,  15  Ind.  865.     Otherwise  at  common  law.      Mason  v.  Eldred,  6 
Wall.  231,  234.     Nor  is  it  available  when  not  pleaded  by  defendant,  even  if  proved 
by  plaintiff.     Brazill  v.  Isham,  12  N.  Y.  9,  affi'g  1  E.  D.  Smith,  437.     But  admission 
without  objection  is  not  ground  of  reversal.    N".  Y.  Cent.  Ins.  Co.  v.  Nat.  Prot.  Ins. 
Co.  14  N.  Y.  85;  Draper  v.  Stouvenel,  38  Id.  219,  222. 

2  Secor  v.  Sturgis,  16  N.  Y.  548. 

8  Ji-x  v.  Jacob.  7  Abb.  New  Cas.  453.  The  true  distinction  seems  to  be  that  if 
the  claims  constituted  a  single  cause  of  action,  though  arising  on  different  transac- 
tions or  periods, — as  for  instance,  a  running  account,  or  successive  instalments  of  rent 
actually  accrued, — a  judgment  for  part  bars  a  new  action  for  the  rest ;  but  if  they  are 
such  that  although  they  might  have  been  joined,  they  must  have  been  separately 
stated  as  separate  causes  of  action  even  though  they  arose  at  the  same  time  or  on 
the  same  contract, — such  ns  claims  on  distinct  covenants,  or  claims  on  a  principal  and 
on  a  collateral  security,  etc., — a  judgment  on  one  does  not  bar  a  new  action  on  the 
other,  unless  by  establishing  some  matter  fatal  to  both.  Compare  Jex  v.  Jacob,  7 
Abb.  New  Cas.  453 ;  and  Perry  v.  Dickenson,  Id.  460,  and  cases  cited,  where  con- 
flicting cases  are  collected. 


828  FORMER  ADJUDICATION. 

the  party  could  and  did  not  plead  it,  but  denied  the  fact  to  con* 
elude  which  it  is  offered,  he  consents  to  try  the  fact,  and  the  adju- 
dication is  only  prima  facie  evidence.  Where  from  the  form  of 
the  proceeding  he  could  not  plead  it,  it  is  admissible  and  conclusive.1 

5.  What  questions  are  concluded.'] — An  adjudication  when  used 
as  an  estoppel  in  another  action  between  the  same  parties  upon 
the  same  claim  or  demand,  is  conclusive,  not  only  as  to  every 
matter  which  was  offered  and  received  to  sustain  or  defeat  the 
claim  or  demand,  but  as  to  any  other  admissible  matter  which 
might  have  been  offered  for  that  purpose.2    When  used  as  an 
estoppel  in  an  action  on  another  claim  or  demand,  it  is  conclusive 
on  any  material  fact,  common  to  both,8  which  was  actually  con- 
troverted, litigated  and  determined  in  the  former  action,  and  on 
those  only.4    In  all  cases  therefore,  where  it  is  sought  to  apply 
the  estoppel  of  a  judgment  rendered  upon  one  cause  of  action  to 
matters  arising  in  a  suit  upon  a  different  cause  of  action,  the  in- 
quiry must  always  be  as  to  the  point  or  question  actually  litigated 
or  determined  in  the  original  action,  not  what  might  have  been 
thus  litigated  and  determined.5 

In  cases  of  either  class  it  is  conclusive,  although  the  facts  nec- 
essary to  show  that  the  same  question  was  determined  are  shown 
by  parol,6  under  rules  below  stated. 

One  who  pleads  and  proves  a  judgment  as  a  former  adjudica- 
tion, in  respects  favorable  to  him,  is  concluded  by  it  in  respects  in 
which  it  is  unfavorable  to  him,  although  it  might  not  otherwise 
be  conclusive  in  such  respects.7 

6.  Construction  of  instrument.] — The  construction  of  a  con- 
tract determined  in  an  action  between  the  parties,  is  conclusive 
on  them  in  another  action  on  subsequently  accruing  claims  on  the 
same  clauses.8    Where  a  former  adjudication  on  the  construction, 
even  of  a  statute,  is  relied  on,  the  party  need  not  prove  again  the 
facts  which  led  the  court  to  give  such  construction  to  the  statute.9 

1  Wood  v.  Jackson,  8  Wend.  9,  rev'g  3  Id.  27  (SEWARD)  ;  Lawrence  v.  Hunt,  10  Id. 
81,  85  (s.  P.  NELSON,  J.) ;  Rose.  N.  P.  205  ;  modifying  the  rule  of  CH.  J.  DE  GREY,  in 
Duchess  of  Kingston's  Case,  20  How.  St.  Tr.  538,  s.  c.  2  Sm.  L.  Cas.  609 ;  Krekeler 
v.  Ritter,  62  N.  Y.  372 ;  Wright  v.  Butler,  6  Wend.  284,  283 ;  Jackson  v.  Lodge,  36 
Cal.  28.  Contra,  Bigelow  on  Est.  520,  who  is  of  opinion  that  it  ought  to  be  conclusive 
whenever  it  is  admissible.  Reasonable  certainty  is  all  that  is  required  in  the  allega- 
tion. Gould  v.  Evansville,  Ac.  R.  R.  Co.  91  U.  S.  (I  Otto),  526,  531. 

8  Cromwell  v.  County  of  Sac,  94  U.  S.  (4  Otto),  351,  352. 

1  Thus,  a  judgment  defeating  an  action  on  one  of  two  instruments  given  as  one 
transaction,  upon  the  ground  of  want  of  authority,  or  of  fraud,  or  discharge,  com- 
mon to  both,  is  a  bar  to  an  action  between  the  name  parties,  upon  the  other  instru- 
ment. Aurora  City  v.  West,  7  Wall.  82,  96  ;  Bouchaud  v.  Dias,  3  Den.  243 ;  Gardner 
v.  Buckbee,  3  Cow.  120. 

*  Cromwell  v.  County  of  Sac,  94  U.  S.  (4  Otto),  351,  353 ;  Davis  v.  Brown,  Id.  423. 

*  Id. ;  Id. 

6  Walker  v.  Chase,  63  Me.  268.     Compare  Russell  v.  Place,  94  U.  S.  (4  Otto),  606. 
T  United  Society  of  Shakers  v.  Underwood,  11  Bush.  265,  s.  o.  21  Am.  R.  214,  219. 
8  Tioga  R.  R.  Co.  v.  Blossburg,  <fec.  R.  R.  Co.  20  Wall.  137,  143,  and  cases  cited. 
»  Wood  y.  Mayor,  dec.  of  N.  Y.  73  N.  Y.  656. 


FORMER  ADJUDICATION.  829 

7.  Courts  and  tribunals.'] — Tho  rale  that  a  former  adjudica- 
tion is  an  estoppel,  is  applied  not  only  to  the  adjudications  of 
domestic  courts,  inferior x  or  superior,  but,  with  due  qualification 
as  to  jurisdictional  questions,  to  the  adjudications  of  competent 
tribunals  in  foreign  countries,  to  sentences  of  courts  of  admiralty, 
to  those  of  ecclesiastical  tribunals,  and,  in  short,  of  every  court 
which  has  proper  cognizance  of  the  subject-matter,2  if  the  adju- 
dication is  conclusive  by  the  law  of  the  foreign  jurisdiction ;  and 
in  a  qualified  degree,  to  decisions  of  other  bodies  than  those 
which  are  strictly  .judicial.8 

It  is  a  general  rule  that  where  a  particular  authority  is  con- 
fided to  a  public  officer  to  be  exercised  by  him  in  his  discretion, 
upon  an  examination  of  facts,  of  which  he  is  made  the  appro- 
priate judge,  his  decision  upon  these  facts  is,  in  the  absence  of 
any  controlling  provisions,  absolutely  conclusive  as  to  the  exist- 
ence of  those  facts.4 

An  award  is  in  the  nature  of  a  former  adjudication  under  these 
rules.5 

8.  Exclusive  jurisdiction.'] — An  adjudication  by  a  court  of  ex- 
clusive jurisdiction  is  necessarily  conclusive  on  all  other  courts, 
no  matter  in  what  controversy  adduced,8  subject  however  to  im- 
peachment for  fraud  or  want  of  jurisdiction.     When  adduced  in 
the  same  court,  it  only  binds  the  subject-matter  as  between  par- 
ties and  privies.7 

9.  Parties."] — The  term  "parties,"  in  these  rules,  includes  not 
only  the  actual  parties  to  the  particular  litigation  but  also  all  per- 
sons who  claim  under  them  as  privies,8  and  all  who  have  a  direct 


1  Routledge  v.  Hislop,  2  Ellis  <fe  E.  649. 

*  HopUns  v.  Lee,  6  Wheat.  109;  Smith  v.  Kernochan,  7  How.  (U.  S.)  198. 

8  See  Big.  on  Est.  14.  As  to  the  conclusive  effect  of  decisions  of  church  judi- 
oatories,  see  Connitt  v.  Reformed  Protestant  Dutch  Church  of  New  Prospect,  54  S. 
Y.  551;  4  Lans.  339,  and  cas.  cit. 

4  Allen  v.  Blunt,  3  Story,  745.  For  the  discussion  of  this  principle,  and  the  dis- 
tinction bteween  revising  the  decision  of  the  officer,  and  applying  to  equity  for  the 
benefit  of  it  for  another  than  the  one  in  whose  favor  it  was  made,  sec?  Martin  v.  Mott, 
12  Wheat.  19;  Gould  v.  Hammond,  1  McAll.  233;  Lindsey  v.  Hawes,  2  Black.  554, 
and  cases  cited;  State  of  Minnesota  v.  Bachelder,  1  Wall.  109;  Stark  v.  Starrs,  6 
Id.  402;  Silver  v.  Ladd,  7  Id.  219;  U.  S.  v.  Wright,  11  Id.  648;  Johnson  v.  Tows- 
ley,  13  Id.  72. 

6  Brazill  v.  Isham,  12  N.  Y.  9.  affi'g  1  E.  D.  Smith,  437.     See  Chapter  XXIV. 

'Gelston  v.  Hoyt,  3  Wheat.  246;  Case  of  Broderick's  Will,  21  Wall.  603. 

'The  Marv,  9  Cranch,  126. 

8  Big.  on  Est.  75.  For  instance,  a  different  person  succeeding  to  the  same  trust. 
Verplanck  v.  Van  Buren,  76  N.  Y.  247,  256,  rev'g  11  Hun,  328;  but  not  the  same 
person  appearing  individually  in  the  earlier  case,  and  as  trustee  in  the  later.  Rath- 
bone  v.  Hooney,  68  N.  Y.  463;  and  see  p.  159  of  this  vol.  Assignor  and  assignee  of 
a  chose  in  action.  Chew  v.  Brumagen,  13  Wall.  497.  Compare  p.  1 1 ,  <tc.  of  this  vol. 
Persons  purchasing  pendente  lite.  Craig  v.  Warp,  1  Abb.  Ct.  App.  Dec.  454.  A  cor- 
poration in  which  a  previous  corporation  had  become  merged.  Pnila.  <kc.  R.  R.  Co. 
v.  Howard,  13  How.  (U.  S.)  307.  Creditors  may  be  concluded  by  ft  judgment,  to 
which  an  assignee  in  trust  for  them  was  a  party.  Kerrison  v.  Stewart,  93  U.  S.  (3 


830  FORMER  ADJUDICATION. 

interest  in  the  subject-matter  of  the  suit,  or  have  a  right  to  make 
a  defense,  or  control  the  proceedings,1  to  adduce  and  cross-ex- 
amine witnesses,  and  to  appeal;2  or  who  have  assumed  to  do  so.* 

The  rule  does  not  make  an  adjudication  evidence  against  a 
stranger,4  nor  against  new  parties  not  in  privity,  nor  in  favor  of 
new  parties  not  in  privity,  against  whom  the  judgment  had  it 
been  adverse  would  not  have  been  available.5 

If  the  parties  are  not  nominally  the  same,  extrinsic  evidence  is 
competent8  and  necessary7  to  show  the  identity. 

The  fact  that  there  were  other  parties  in  the  former  suit  who 
are  also  estopped,  does  not  render  the  former  decision  any  less  con- 
clusive against  him  who  is  a  party  to  both.8 

10.  Joint  defendants.] — Where  the  contract  is  joint  and  not 
joint  and  several,  a  judgment  against  one  debtor  merges  the  en- 
tire cause  of  action,  even  without  proof  of  satisfaction,  and  bars 
an  action.9     Otherwise,  under  the   special  statutes  as  to   joint 
debtors.10    In  actions  for  wrongs  whether  to  person  or  property,  a 
previous  recovery  against  a  joint  wrong-doer,  on  account  of  the 
same  wrong,  is  not  a  bar  unless  satisfaction  is  proved.11 

11.  Form  of  the  adjudication^ — The  rule  is  applicable  to  ad- 
judications at  law  or  in  equity,12  unless  the  adjudication  was  upon 
the  ground  that  the  party  had  mistaken  his  remedy.     It  extends 
not  only  to  ordinary  judgments  at  law,  and  decrees  in  equity,13  but 
also  to  a  judgment  by  default  ;M  and  to  a  judgment  by  confession, 


Otto),  155,  160.  Persons  not  parties  to  proceedings  in  a  court  of  equity  for  distribu- 
tion of  a  common  fund  among  the  claimants,  are  not  concluded  by  the  decree  (if  no- 
tice  was  not  given  and  they  were  not  guilty  of  neglect),  from  proceeding  on  their 
own  behalf,  if  they  intervene  before  distribution.  Matter  of  Howard,  9  Wall.  175, 
186,  and  cas  cit.  Compare  Kerr  T.  Blodgett,  48  N.  Y.  62;  16  Abb.  Pr.  137,  s.  c.  25 
How.  Pr.  803. 

1  Bates  v.  Stanton,  1  Duer,  79. 

8  1  Greenl.  Ev.  §  535. 

3  Big  on  Est.  47. 

4  Hurst  v.  McNeil,  1  "Wash.  C.  Ct.  70;  Matthews  v.  Mened^er,  2  McLean,  145; 
Booth  v.  Powers,  56  N.  Y.  22,  rev*g  Flint  v.  Craig,  69  Barb.  319.     "  In  truth  there 
is  no  possible  ground  on  which  a  reported  case  can  be  made  evidence  of  the  facts 
stated  therein,  ngainst  a  stranger."    GEIDLET,  J.,  Seymour  v.  Marvin.  11  Barb.  80,  86; 
but  see  page  827,  note. 

6  Baring  v.  Fanning,  1  Paine,  549. 

6  Stevelie  v.  Read,  2  Wash.  C.  Ct.  274;  Evans  v.  Patterson,  4  Wall.  224,  231. 

7  Greely  v.  Smith,  3  Woodb.  <fc  M.  236. 

*Dows  T.  McMichael,  6  Paige,  139;  Thompson  v.  Roberts,  24  How.  (U.  S.) 
233. 

9  Mason  T.  Eldred,  6  "Wall.  231,  238,  reviewing  cases. 

10  Id. 

11  Lnveioy  v.   Murray,  3  Wall.  1,  citing  the  conflicting   cases.     The  contrary  is 
held  in  Virginia  and  Rhode  Island. 

14  Bank  of  U.  S.  v.  Beverly,  17  Pet.  127. 

13  Smith  v.  Kernochen,  7  How.  (U.  S.)  198.  As  to  interlocutory  decree,  compare 
Rnmford  Chem.  Works  v.  Hecker,  10  Pat.  Off.  Gaz.  289 ;  btovall  T.  Banks,  10  Wall 
683,  687. 

u  l>ickson  T.  Wilkinson,  3  How.  (U.  S.)  57. 


FORMER  ADJUDICATION.  831 

on  facts  appearing  on  the  record,1  and  to  adjudications  on  adverse 
rights  as  between  co-defendants.3 

A  nonsuit  at  law,8  or  what,  is  equivalent,  a  dismissal  of  com- 
plaint in  an  action  of  a  legal  nature  under  the  new  procedure,  for 
reasons  which  would  be  cause  of  nonsuit  at  common  law,4  is  not  a 
bar,  unless  it  affirmatively  appears  that  it  was  granted  upon  a  de- 
termination of  the  merits  of  the  same  controversy.6  A  demurrer, 
followed  by  judgment  on  the  merits  against  the  demurrant,  is  a 
bar ; 8  but  the  bar  rests  rather  on  the  judgment  than  on  the  de- 
murrer. A  report  of  a  referee  or  similar  finding  in  a  court  hav- 
ing power  to  arrest  judgment  and  grant  a  new  trial,7  or  a  verdict, 
without  judgment  thereon,8  or  on  which  the  judgment  has  been 
reversed,9  is  not  an  adjudication  and  is  not  admissible  in  a  subse- 
quent action. 

An  order,  made  on  motion,  is  not  conclusive  in  the  same  sense  as 
a  judgment ;  and  to  prove  it  the  motion  papers  and  evidence  should 
be  produced.10  A  reversal,  remanding  the  cause  for  new  trial,  is 
not  a  bar  unless  it  directly  affirms  or  denies  some  point  in  issue.u 

12.  Record  to  be  produced.] — The  record,  or  a  copy  properly 
authenticated,13  must  be  produced,13  or  accounted  for,  so  as  to  let 
in  secondary  evidence.  If  the  record  be  lost,  the  regularity  of  the 
proceedings  and  the  sufficiency  of  the  evidence  given  on  the  for- 
mer trial  are  presumed.14  Unless  a  foundation  is  laid  for  second- 


1  Big.  on  Eat.  18,  20. 

s  Corcoran  v.  Chesapeake,  <fec.  Canal  Co.  94  U.  S.  (4  Otto),  741 ;  Craig  v.  Ward, 
1  Abb.  Ct.  App.  Dec.  454. 

3  Holton  v.  Gleason,  26  N.  H.  (6  Post.)  501 ;  Greely  r.  Smith,  1  Woodb.  &  M. 
181;  8  Id.  236;  Homer  v.  Brown,  16  How.  (U.  S.)  354;  Mich.  Ins.  Bk.  v.  Eldred,  6 
Bias.  870. 

4  Wheeler  v.  Ruckman,  61  N.  Y.  391.     And  by  N.  Y.  Code  Civ.  Pro.  §  1209,  a 
judgment  of  dismissal  in  any  action  thereafter  commenced,  does  not  bar  a  new  action 
for  the  same  c  mse  of  action,  unless  it  expressly  declares,  or  it  appears  by  the  ju,l<j- 
ment-roll,  that  it  is  rendered  upon  the  merits.     Whether  an  absolute  dismissal  of  a 
bill  in  equity  is  a  bar,  compare  Wheeler  v.  Ruckman  (above) ;  Durant  v.  Es-*ex  Co. 
7  Wall.  107,  109;  United  States  v.  Lane,  8  Id.  185,  201  ;  Allen  v.  Blunt,  5  Woodb. 
<t  M.  121 ;  Lessee  of  Wright  v.  Deklyne,  1  Pet.  C.  Ct.  199. 

*  Smith  v.  Ferris,  1  Daly,  18.    The  general  entry  of  the  dismissal  of  a  suit  by 
agreement  is  evidence  of  an  intention  not  to  abandon  the  claim  on  which  it  is 
founded,  but  to  preserve  the  right  to  brirr*  a  new  suit  thereon,  if  it  becomes  neces- 
sary.    Haldeman  v.  United  States,  91  U.  S.  (1  Otto),  584,  586. 

6  Aurora  City  v.  West,  7  Wall.  82,  98 ;  Clearwater  v.  Meredith,  1  Wall.  25,  43 ; 
Gould  v.  Evansville,  (fee.  R.  R.  Co.  91  U.  S.  (1  Otto),  526,  633. 

7  Leonard  v.  Barker,  5  Den.  220. 

8  Keed  v.  Proprietors  of  Locks,  8  How.  (U.  S.)  274,  291 ;  Allen  v.  Blunt,  3  Story 
C.  Ct.  742,  746. 

•  Smith  v.  McCool,  16  Wall.  560. 

10  Alkus  v.  Rodh,  4  Daly,  397. 

11  Harvey  v.  Richards,  2  GalL  216;  Aurora  City  v.  West,  7  Wall.  82,  106. 
19  See  page  857  of  this  vol. 

13  Davisson  v.  Gardner,  10  N.  J.  L.  (5  Halst.  289) ;  Thelluson  v.  Sheldon,  2  New 
R.  228;  Mackay  v.  Easton,  19  Wall.  619,  632.  Failure  to  produce  or  account  for  it 
id  a  circumstance  construed  against  the  party.  Clark  v.  O  ikley,  4  Ark.  236. 

u  Trepngnier  v.  Butler,  12  Mart.  (La.)  534.  See  the  rules'  on  this  subject  more 
fully  stated  in  Chapter  XIX. 


832  FORMER  ADJUDICATION. 

ary  evidence,  oral  evidence  is  not  competent  to  show  the  con- 
tents of  parts  of  the  record  not  produced.1  The  reported  decision 
of  the  court  is  not  primary  evidence  of  the  adjudication,  though 
it  can  be  referred  to  as  an  exposition  of  the  law.2  The  record,  or 
a  copy,  is  not  rendered  incompetent  by  the  fact  that  the  record 
was  not  made  up  until  after  the  commencement  of  the  present 
action.8 

13.  What  questions  were  determined  ~by  it.~\ — The  burden  is  on 
the  party  adducing  the  former  adjudication,  to  show  that  the  sub- 
ject of  the  present  suit  was  directly  in  issue  in  the  former  one,4 
and  that  the  former  decision  necessarily  involved  a  determination 
of  the  rights  of  the  parties  in  respect  to  the  question.5  The  fact 
that  the  writs  or  forms  of  action  were  different  is  not  decisive, 
but  the  causes  of  action  are  regarded  as  the  same,  if  the  same 
evidence  would  support  both.8  Identity  in  the  description  of  the 
cause  of  action  stated  in  the  two  cases,  with  the  fact  that  the 
names  of  parties  and  amount  claimed  are  the  same,  is  enough  to 
throw  on  the  other  party  the  burden  of  showing  that  the  causes 
of  action  were  not  the  same.7 

The  presumption,  in  the  absence  of  evidence  to  the  contrary, 
is,  that  the  decision  was  upon  the  merits.8  If  the  record  shows 
that  the  verdict  or  other  adjudication  could  not  have  been  had 
without  deciding  the  particular  matter  now  questioned,  it  will  be 
considered  as  having  finally  determined  it.9  A  record  presenting 
fairly  two  points,  on  either  of  which  the  decision  might  turn,  is 
conclusive  on  both,  if  the  court  fully  considered  and  determined 
both,  and  the  decision  might  as  well  have  been  put  upon  one  as 
the  other.10  Where  the  parties  and  the  cause  of  action  are  the 
same,  the  prima  facie  presumption  is,  that  the  questions  pre- 
sented for  idecision  were  the  same,  unless  it  appears  that  the  mer- 
its of  the  controversy  were  not  involved  in  the  issue.11  If  the  rec- 


1  Lessee  of  James  v.  Stookey,  1  Wash.  C.  Ct.  330 ;  Davisson  v.  Gardner,  10  N.  J. 
L.  (5  Halst.)  289.      Where  a  bill,  answer  and  decree  are  put  in  evidence  to  prove  a 
fact  which  appears  on  the  face  of  those  documents  to  have  been  in  issue,  the  party 
producing  them  is  not  bound  also  to  put  in  the  depositions  as  part  of  his  own  case. 
Rose.  N.  P.  129,  citing  Laybourn  v.  Crisp,  4  M.  <fc  W.  320. 

2  Mackay  v.  Easton,  19  Wall.  619,  632. 

8  Krekeler  v.  Ritter,  62  N.  Y.  372;  Rinchey  v.  Striker,  28  Id.  45,  s.  o.  26  How. 
Pr.  83. 

4  Lonsdale  v.  Brown,  4  "Wash.  C.  Ct.  86. 
6  Id.;  Lawrence  v.  Hunt,  10  Wend.  81. 

6  Hitchin  v.  Campbell,  2  Blacks.  827 ;  Kitchen  v.  Campbell,  3  Wils.  304. 

7  Lonsdale  v.  Brown  (above);  Agate  v.  Richards,  6  Bosw.  456. 

8  Stearns  v.  Stearns,  32  Vt.  678. 

»  Packet  Co.  v.  Sickles,  5  Wall.  593. 

10  Hawes  v.  Contra  Costa  Water  Co.  6  Sawy.  287.  Where  a  bill  in  equity  seeks  to 
adjudicate  the  entire  right  of  the  parties  before  the  court,  the  decree  may  be  deemed 
conclusive,  not  only  against  grounds  of  claim  which  were  set  forth  in  the  bill  as  false 
and  pretended,  but  also  against  all  other  grounds.  In  re  Chiles,  22  Wall.  157,  166 ; 
and  see  Aurora  City  v.  West,  7  Id.  82. 

»  Gould  v.  Evansville,  <fec.  R,  R.  Co.  91  U.  S.  (1  Otto),  526,  532. 


FORMER  ADJUDICATION.  833 

ord  produced  does  not  disclose  what  was  at  issue  and  determined, 
extrinsic  evidence  is  necessary.1 

14.  Oral  evidence  to  explain  record.'] — For  the  purpose  of 
enowing  what  was  determined,  oral  evidence  th&t  a  question  not 
involved  in  the  pleadings  was  litigated,  is  not  competent,2  except 
in  case  of  a  justice's  judgment.8  Oral  evidence,  not  inconsistent 
with  the  record,  is  admissible  to  show  what  was  litigated  and  the 
ground  of  the  decision,4 — for  instance,  to  show  the  precise  day  of 
adjudication  ;5  that  the  present  cause  of  action  had  not  accrued 
when  the  former  judgment  was  rendered  ;6  to  connect  a  bill  of 
particulars  with  the  record;7  to  show  the  evidence  given  on  the 
issue  ;8  that  the  party  supported  his  allegation  by  estoppel  ;9  and 
that  the  finding  or  verdict  was  upon  one  rather  than  another  of  sev- 
eral issues.10  And  evidence  that  the  judgment  was  upon  a  written 
instrument  may  be  given  without  producing  the  instrument.11 

If  the  record  is  silent  as  to  whether  the  causes  of  action  are 
the  same,  extrinsic  evidence  as  to  the  ground  of  the  verdict  IB 
competent.12  But  the  extrinsic  evidence  should  be  confined  to  the 
points  in  controversy  on  the  former  trial,  to  the  testimony  given 
by  the  parties,  and  to  the  questions  submitted  to  the  jury  for 
their  consideration ;  and  then  the  record  furnishes  the  only  proper 
proof  of  the  verdict.13  Evidence  of  the  secret  deliberations  of  the 
jury,  or  the  grounds  of  their  proceedings  in  making  up  their  ver- 
dict, is  not  competent.14  The  reasons  given  by  the  court  upon 
the  delivery  of  their  judgment  are  competent  to  show  the  ground 
of  it.15  Oral  evidence  is  not  competent  to  contradict  the  record,18 
nor  to  show  mistake  in  it.17  Where  the  actual  grounds  of  the 


1  Davis  v.  Brown,  94  U.  S.  (4  Otto),  423. 

8  Campbell  v.  Butts,  3  N.  Y.  173 ;  Davis  v.  Tallcot,  12  N.  Y.  184,  rev'g  14  Barb.  611. 

»  Id. ;  Doty  v.  Brown,  4  N.  Y.  71. 

4  Packet  Co.  v.  Sickles,  5  Wall.  592;  Miles  v.  Caldwell,  2  Id.  43  ;  "White  v.  Madi- 
son, 26  N.  Y.  117,  8.  c.  26  How.  Pr.  481 ;  Kerr  v.  Hays,  35  N.  Y.  331 ;  Lawrence  v. 
Cabot,  41  Super.  Ct.  (J.  <fe  S.)  122. 

6  Wh'taker  v.  Wisbey,  12  C.  B.  52;  12  L.  J.  C.  P.  116.  And  a  variance  from 
the  day  stated  in  the  record,  if  that  be  fixed  by  legal  fiction,  is  not  deemed  a  contra- 
diction of  the  record.  Id. 

6  Marcellus  v.  Countryman,  65  Barb.  201. 

7  Marsh  v.  Pier,  4  Rawle,  273. 

8  State  v.  Thompson,  19  Iowa,  299.     And  a  jnror's  testimony  is  competent 
Whether  the  fact  that  the  party  offered  no  evidence  at  all,  affects  the  conclusive 

character  of  the  adjudication,  compare  Colwell  v.  Bleakley,   1   Abb.  Ct.  App.  Dec. 
iOO;  Ramsey  Y.  Herndon,  1  McLean,  450. 

»  Rider  v.  Union  Ind.  Rub.  Co.  4  Bosw.  169. 

10  Rako  v.  Pope,  7  Ala.  K  S.  161 ;    Washington,  Ac.  Steam  P.  Co.  v.  Sickles,  24 
How.  (U.  8.)  333. 

11  Artcher  v.  McDuffie,  5  Parb.  147. 

"  Perkins  v.  Walker,  19  Vt.  144;  Rig.  on  Est.  S4. 

13  I'ncket  Co.  v.  Sickles,  6  Wall.  603,  and  ciises  cited  (VKLSON,  J.). 

14  Id.     Compare  Mnrcellus  v.  Countryman,  65  Barb.  201. 
•5  Birckhend  v.  Brown,  6  Sandf.  134. 

16  Hrintnall  v.  Foster,  7  Wend.  103.     Nor  even  a  justice's  docket.     Id. 
"  McPherson  v.  Cunliff,  1 1  Serg.  A  R.  422 ;  Reed  v.  Jackson,  1  East,  355. 

53 


834    .  FORMER  ADJUDICATION. 

judgment  can  be  clearly  discovered  from  the  judgment  itself,  it  is 
conclusive  respecting  the  grounds,  as  well  as  respecting  the  act- 
ual matter  decided.1 

15.  Set-off. ~\ — A  claim  which,  might  have  been  interposed  as  a 
set-off,  but  was  not,  is  not  barred,2  unless  it  is  so  involved  in  the 
facts  out  of  which  the  former  action  arose,  that  to  submit  to  re- 
covery on  those  facts,  without  interposing  the  set-off,  amounts 
to  an  admission  that  there  was  no  ground  for  such  a  set-off'.8 

"Where  it  appears  that  the  plaintiff  presented,  as  a  set-off  in  the 
former  action,  the  claim  now  sued  on  and  that  it  was  disallowed, 
the  burden  is  on  him  to  show  affirmatively  that  it  could  not 
legally  have  been  allowed,  to  relieve  himself  from  the  effect  of 
the  former  decision  as  a  bar.4  If  the  record  shows  that  a  set-off 
was  interposed,  parol  evidence  that  it  was  withdrawn  is  not  com- 
petent.5 

16.  Rebuttal:  Want  of 'jurisdiction .] — Want  of  jurisdiction 
is  fatal.6 

1-7.  — fraud.'] — A  plaintiff  against  whom  a  former  judgment 
is  interposed  as  a  defense,  not  as  a  counterclaim,  may  without 
replying  prove  that  it  was  a  fictitious  suit.7  So  he  may  prove 
fraud  in  the  recovery  ;8  but  for  this  purpose  he  must  prove  act- 
ual fraud  known  and  intended  by  the  defendant,  and  unknown 
at  the  time  to  the  plaintiff.9 

18.  —  appeal :  reversal.'] — Pendency  of  appeal  does  not  neces- 
sarily impair  the  effect  of  the  adjudication.10     Reversal  may  be 
proved,  though  not  alleged,11  unless  reply  was  required  in  the  or- 
dinary course  of  pleading.12 

19.  —  new  title.'] — Plaintiff  may,  notwithstanding  the  adjudi- 
cation, set  up  a  new  title  acquired  since  then.13 


1  Alison's  Case,  L.  R.  9  Ch.  App.  26 ;  Sturtevant  v.  Randall,  53  Me.  149  ;  Walker 
v.  Chase,  Id.  258. 

2  Moal^s  Van  Santv.  PI.  636. 

3  Thus,  suffering  judgment  at  suit  of  a  physician  for  the  value  of  services  is  a  bar 
to  a  subsequent  action  against  him  for  malpractice  in  those  services.     Blair  v.  Bart- 
lett.  75  N.  Y.  150,  and  cases  cited;  questioned  in  2  Whart.  Ev.  79",  and  Big.  on  Est. 
104,  108.     Compare  Davis  v.   Hedges,  L.  R.  6  Q.  B.  687  ;    Do  Wolf  v.  Crandall,  34 
Super.  Ct.  (J.  &  S.)  14;  Davenport  v.  Hubbard,  46  Vt.  200,  s.  c.  14  Am.  R.  62u. 

4McGuinty  V.  Herrick,  5  Wend.  240;  Hatch  v.  Benton,  6  Barb.  28. 
B  Davis  v.  Tallcott,  12  N.  Y.  184.     Centra,  see  Burnham  v.  Webster,  1  Woodb.  & 
M.  172. 

6  Gage  v.  Hill,  43  Barb.  44.     For  the  rules  of  proof,  see  Chap.  XIX. 
1  See  Gaines  v.  Relf,  12  How.  (U.  S.)  472,  637. 

8  Mandeville  v.  Reynolds,  68  N.  Y.  528,  643,  affi'g  5  Hun,  338  ;  Yerplanck  v.  Van 
Em-en,  76  N.  Y.  247,  258,  rev'g  11  Hun,  328.     Contra,  Krekeler  v.  Ritter,  62  N.  Y. 
372,  875. 

9  Verplanck  v.  Van  Burcn  (above). 

10  Paine  v.  Schenectady  Ins.  Co.  11  R.  I.  411 ;  and  see  p.  549  of  this  vol. 

11  Briggs  v.  Bowen,  60  N.  Y.  454. 

18  Carpenter  v.  Goodwin,  4  Daly,  88. 

13  Barrows  v.  Kindred,  4  Wall.  402 ;  Noonan  v.  Bradley,  9  Id.  394 ;  Merryman  v 
Bourne,  Id.  599. 


CHAPTEE  LXIIT. 

COUNTERCLAIMS. 
1.  Pleading.  2.  Mode  of  proof;  admission. 

1.  Pleading.'] — Facts  proven  do  not  avail  as  a  counterclaim, 
unless  pleaded.1    In  order  to  bring  a  counterclaim  within  the 
rule  that  its  allegations  are  admitted  by  a  failure  to  reply,  it 
should  be  alleged  in  such  form  as  to  give  plaintiff  notice  that 
defendant   asks  an  affirmative  judgment   against   him.2     That 
which  the  answer  only  calls  a  defense  is  not  admitted  by  failure 
Jb  reply.3    When  the  facts  alleged  in  an  answer  might  consti- 
tute a  ground  of  counterclaim,  but  are  such  as  always  constituted 
a  flat  bar  at  law  to  the  plaintiff's  right  to  recover  by  showing,  if 
.true,  that  he  sever  had  any  cause  of   action,  they  should  be 
deemed  to  be  set  up  as  a  defense  merely,  unless  the  answer  ex- 
pressly shows  that  they  are  set  up  by  way  of  counterclaim.4    But 
neither  the  word  "counterclaim,"  nor  any. particular  form  is  in- 
dispensable.5   If  the  facts  constituting  a  counterclaim  are  al- 
leged, they  may  be  proved ;  and  if  proved,  the  pleader's  use  of 
the  term  "recoupment,"  or  "set-off     does  not  prevent  the  court 
from  giving  affirmative  judgment.6 

2.  Mode  of  proof ;  admission."] — The  mode  of  proof  of  the 
cause  of  action  is  the  same  as  if  stated  in  a  complaint ;  and  the 


1  Star  Fire  Ins.  Co.  v.  Palmer,  41  Super.  Ct.  (J.  &  S.)  267,  271. 

4  Bates  v.  Eosekrans,  37  N.  Y.  409,  s.  c.  4  Abb.  Pr.  N.  S.  276;  N.  Y.  Code  Civ. 
Pro.  §  609. 

*  Bates  v.  Rosekrans  (above);  Simmons  v.  Kayser,  43  Super.  Ct.  (J.  &  S.)  131, 
137. 

4  Eqnit.  L.  Ass.  Soc.  v.  Cuyler,  12  Han,  247,  251,  affi'd  in  75  N.  Y.  511.  But 
facts  showing  that  the  equities  are  with  defendant  will  avail  to  defeat  a  recovery, 
though  not  pleaded  as  a  counterclaim.  Kingston  Bank  v.  Eltinge,  66  N.  Y.  623,  affi  g 
5  II un,  653 ;  Day  v.  Hammond,  57  N.  Y.  479,  484.  In  an  answer  not  purporting  to 
be  a  counterclaim,  demand  for  cancellation  of  the  instrument  sued  on  is  onty  a  de- 
fense, not  a  counterclaim.  Eq.  Life  Ass.  Soc.  v.  Cuyler,  75  N.  Y.  511,  affi'g  12  Hun, 
247,  251 ;  Barthet  v.  Elias,  2  Abb.  New  Caa.  364.  But  a  claim  to  have  further  relief 
from  another  instrument  is  a  counterclaim,  and  the  allegations  are  admitted  by  fail- 
ure to  reply.  Bernheimcr  v.  Willis,  11  Hun,  16. 

6  Bates  v.  Rosekrans  (above). 

«  \\ild.r  v.  Boynton,  63  Barb.  647,  549.  But  see  Shnte  v.  Hamilton,  3  Daly, 
462,  475;  Am.  Dock,  <fcc.  Co.  v.  Staley,  40  Super.  Ct.  (J.  &  S.)  539.  And  to  entitle 
defendant  to  rely  on  a  failure  of  consideration  or  a  recoupment  of  damages,  it  is 
enough  that  the  facts  are  alleged,  without  stating  which  result  he  claims.  ISprinjrer  v. 
Dwyer,  50  N.  Y.  19,  reVg  68  Barb.  189 ;  Kelly  v.  Bernheimer,  3  Supm.  Ct,  (T.  A  C.) 
140,  s.  c.  47  How.  Pr.  62.  Compare  Dudley  v.  Scranton,  57  N.  Y.  424,  4i>7. 

[835] 


836  COUNTERCLAIMS. 

same  rules  as  to  allegation l  and  proof 3  of  damages  apply.  The 
facts  alleged,  if  they  constitute  a  counterclaim  as  distinguished 
from  a  defense,3  and  are  properly  alleged,  are  admitted  by  a  fail- 
ure to  reply,4  if  the  benefit  of  this  admission  is  clainjed  at  the 
trial.5  But  it  is  only  the  facts  alleged,  not  the  conclusions  of  law, 
that  are  admitted.6  Replying  to  a  counterclaim  is  not  a  waiver 
of  the  objection  that  the  claim  is  not  the  proper  subject  of  coun- 
tered m  under  the  statute.7 


1  Parsons  v.  Sutton,  66  N.  Y.  92,  97,  affi'g  39  Super.  Ct.  (J.  <fc  S.)  644. 

8  Ishara  v.  Davidson,  52  N.  Y.  23V. 

8  Rogers  v.  King,  66  Barb.  495. 

4  Isham  v.  Davidson,  52  N.  Y.  237,  241. 

6  Jordan  v.  Nat.  Shoe  &  L.  Bank,  74  N.  Y.  467,  471. 

6  Id. 

'  Smith  v.  Hall,  67  N.  Y.  48,  51. 


GENERAL  INDEX. 


ABANDONMENT,  by  parent  or  husband,  178, 179. 

of  easement,  641. 

of  patent.  761. 

of  invention,  764. 

of  trade  mark,  754. 
ABATEMENT,  defenses  in,  786. 

infancy  as  ground  of,  796  n. 

partner  necessary  co-plaintiff,  205. 

partner  necessary  co-defendant,  213,  221. 

coverture,  180. 

pendency  of  another  action,  717,  786. 

of  nuisance,  643. 
ABDUCTION,  681. 
ABSENCE,  as  evidence  of  loss  at  sea,  499. 

raising  presumption  of  death,  73-76. 

— incase  of  husband  and  wife,  83. 

rebutting  this  presumption,  76. 

slight  evidence  sufficient  to  account  for,  76  n. 

domicile  of  one  absent  under  constraint,  105. 

— at  school  or  college,  106. 

—in  service  as  soldier  or  sailor,  106. 

of  witness  who  made  memorandum  in  course 
of  business,  322  n. 

repelling  presumption  of  payment,  813. 

excusing  tender,  817. 

of  debtor  suspending  statute  of  limitations,  823. 
ABSENT  DEFENDANTS,  evidence  against,  187. 
ABSTRACT  OF  TITLE,  evidence  of  defect,  727. 
ACCEPTANCE,  of  assignment,  6. 

of  lease  transferred  by  general  assignment,  532. 

of  charter,  24. 

of  corporate  powers  granted  after  charter,  31. 

of  terms  of  sale  by  buyer,  288. 

by  buyer,  when  unnecessary,  314. 

to  satisfy  statute  of  frauds,  318. 

of  symbolical  delivery,  318. 

acts  of  ownership  by  buyer  to  show,  319. 

of  negotiable  paper,  419. 

— how  proved.  !.». 

—without  fund.";  and  promise  to  reimburse,  257. 

of  delivery  of  sealed  instrument,  507. 
ACCESS,  neither  parent  competent  witness  as 
to,  89. 

sexual  intercourse,  when  presumed  from,  88, 
743. 

rebuttal  of  presumption,  89. 

means  of  knowledge,  743. 

ACCIDENT,  as  evidence  of  negligence,  569,  571, 
583. 

circumstances  to  disprove,  496. 

carrier  exonerated  by  inevitable,  577. 
ACCIDENT  INSURANCE,  503. 
ACCORD  AMD  SATISFACTION,  mode  of  proof 
and  effect,  814. 

mere  words  of  agreement,  319. 

statute  of  frauds  as  to,  319. 
ACCOMMODATION  paper,  401. 

defenses  to.  1 1-'. 

evidence  as  to  consideration,  406. 

accommodation  indorsement,  413. 
ACCOUNTING,  effect  of  proof  of,  in  action  to 
charge  lu'ir,  162. 

account  rendered,  when  bar  to  action  for,  230, 
815. 


ACCOUNTS,  as  memoranda  refreshing  memory. 

321. 

as  foundation  of  knowledge  of  market  value,  311. 
entry  in  account,  to  show  intent  as  to  advance- 
ment, 151,  154. 

of  money  paid  between  husband  and  wife,  172. 
competency  of  separate  account  on  question  ol 

joint  account,  188  n. 

admission  by  partner  after  dissolution,  219  n. 
of  partnership,  as  to  real  estate,  229. 
partnership  accounts  as  evidence,  229. 
plaintiff's  charges  in  account  for  money  lent,  245. 
as  evidence  of  money  paid  by  plaintiff,  259. 
of  newspaper  printer,  376. 
entries  in  payer's,  to  show  payment,  808. 
— in  creditor's,  to  show  application  of  payment, 

811. 
in  plaintiff's    handwriting  competent    as    to 

amount,  266. 

when  to  be  produced  in  action  for  money  re- 
ceived, 276. 

of  a  party  offered  in  his  own  favor,  322,  372. 
primariness  of,  325. 

when  using  part  of,  admits  the  rest,  326. 
admissions  of  correctness  of  an,  327. 
between  defendant  and  agent  of  plaintiff,  when 

admissible  to  show  set-off,  333. 
admissibility  after  proving  correctness  of  items, 

401. 

production  of,  in  trade  mark  case,  753. 
peculiarities  in  mode  in  keeping,  516. 
abbreviated  entries  interpreted  by  expert,  429. 
of  books  of  corporations,  46,  52. 
in  action  by  receiver,  232. 
of  principal,  adduced  against  surety,  513. 
ACCOUNTS  RENDERED  by  agent  to  principal 

as  proof  of  advances,  253. 
an  admission,  461. 
not  a  limit,  368. 

ACCOUNTS  STATED,  actions  on,  458. 
'•  financial  agent "  not  empowered  to  state,  43. 
due  bill  competent.  2H. 
when  not  new  promise,  823  n. 
effect,  as  a  defense,  815. 
ACKNOWLEDGMENT,  by  testator  to  witnesses 

to  will,  111. 

of  value  of  advancement,  156. 
by  one  to  whom  performance  is  agreed  to  be 

made,  261  n. 

of  receipt  of  money,  275.  (And  fee  RECKIPT.) 
of  an  indebtedness  when  presumed  to  be  of  the 

one  in  suit,  327. 

of  debt  to  repel  presumption  of  payment,  813. 
to  rebut  statute  of  limitations,  823. 
to  rebut  defense  of  infam  > 
insufficient  to  rebut  discharge,  8-J1. 
ACKNOWLEDGMENT  AND  PliOOP  of  deed, 

693. 

of  other  instruments,  6,  505. 
by  married  woman,  174,  175. 
ACQUIESCENT  K,  in  acts  of  officers  or  agents, 

infrnvd.  li,  299. 

as  ratification  by  corporation,  43. 
of  persons  in  business  to  show  partnership,  237. 


838 


GENERAL  INDEX. 


ACQUIESCENCE-  Continued. 
presumption  as  to  wife's,  164  n. 
of  cesttii  utit  truat,  in  trustee's  dealings,  230. 
office  held  by,  193. 
in  account,  by  drawing  balance  in  pass-book, 

278. 

in  terms  of  sale  by  possession  of  goods,  288. 
In  quality,  343. 
iu  infringement  of  trade  mark,  754. 

—  of  copyright,  705. 

—  of  patent,  765. 

ACQUITTAL,  not  conclusive  of  innocence,  790  n. 

(And  see  653,  654.) 
ACT,  allegation  of  doing,  admits   evidence  of 

causing,  771. 

—  or  of  agency.    (See  AGENT.) 

ACT   OF    CONGRESS,  as  to  "full   faith  and 

credit,"  541,  etc. 

as  to  competency  of  witnesses,  70,  785. 
as  to  defense  in  patent  suit,  <'ti-. 
as  to  certified  copies  in,  760. 
ACT  OP  LEGISLATURE,  how  proved,  21,  770. 
"ACT  OF  GOD,"  exonerating  carrier,  577. 
ACTION  PENDING,  as  a  defense,  717,  786. 
ACTION  QUI  TAM,  770.  etc. 
ACTUAL  NOTICE,  as  distinguished  from  knowl- 
edge and  from  notice  from  stranger,  430,  716, 717. 
ACTUAL  MALICE,  666. 

ADDRESS  of  package  delivered  to  carrier,  565. 
of  notice  mailed,  433. 
error  in.  explained,  431. 
ADEMPTION,  148. 
ADJUDICATION.  (See  JUDGMENT  and  FORMER 

ADJUDICATION.) 
ADJUSTMENT,  "hit  or  miss,"  mistake  in,  269, 

814  w.10. 

in  insurance,  491. 

ADMEASUREMENT  of  dower,  708. 
ADMINISTRATION,  decree  granting,  when  may 

be  proved.  56. 

extrinsic  evidence  to  aid  in  executing  will,  146. 
ADMINISTRATION  BONDS,  action  on,  514. 
ADMISSIONS,  distinguished  from  accounts  stat- 
ed, 458. 

implied  from  objection  to  other  item,  460. 
of  an  assignment,  by  silence,  2. 
bankrupt's  schedule  as,  of  debt,  10. 
what  sufficient,  of  de facto  corporation,  23,  24. 
of  incorporation,  28. 

to  rebut  presumption  of  authority  to  affix  seal,  35. 
of  authority  of  public  officer  by  making  con- 
tract, 195. 

of  title,  by  dealing  with  public  officer,  197  n. 
return  of  officer,  an,  200. 
of  existence  of  process,  of  judgment  or  decree, 

when  incompetent,  202. 
of  partnership,  204. 
denials  and  explanations  of,  220. 
of  partnership  by  contract  or  conveyance  in 

firm  name,  208  n. 
in  pleading,  to  show  trust,  233  n. 
that  one  is  surety,  competency  of,  255. 
to  show  payment  by  chi;ck,  259. 
of  sale  of  goods  as  proof  of  receipt  of  proceeds, 

276. 

as  proof  of  ordinary  sale  by  delivery,  287. 
of  indebtedness,  as  evidence  of  amount  of  price, 

306. 

of  value,  cost  of  article  as,  307. 
by  buyer  to  prove  delivery,  314. 
contrary  to  fact  provable,  under  allegation  con- 
trary to  the  fact,  423. 

by  principal  of  proper  payment  to  agent,  prim- 
ary, 800. 

to  show  payment,  808. 
to  show  part  payment,  824. 
of  guilt,  773. 

of  counter-claim  by  failure  to  reply,  835. 
ADMISSIONS  AND  DECLARATIONS,  how  far 
whole  conversation  to  bo  admitted,  266,  461, 
492,  748. 
as  narratives  of  past  events,  265  n.    (And  see 

RES  GEST^E). 
of  assignor  of  personal  property,  competency  of, 

for  and  against  assignee,  11,  etc.,  286,  740. 
—of  patent,  700. 


ADMISSIONS  AND  DECLAR  \TIONS- Confd, 

during  progress  of  invention,  757. 

of  former  pOBMWor  of  chattels,  etc.,  488,  690. 

of  predecessor,  in  title  or  occupancy  of  real 
property,  710,  740. 

of  occupant  or  tenant,  as  against  owner,  641. 

of  principal,  against  guarantor,  474. 

— or  surety,  513. 

of  real  party  in  interest,  444. 

of  currier's  agent,  567. 

of  stranger  in  same  casualty,  581. 

— in  case  of  assault,  P48. 

—or  nuisance,  642  h. 

of  officers  or  agents  insufficient  to  show  au- 
thority, 43. 

of  officers  and  agents  authorized  to  speak,  44, 
4!»2. 

— when  part  of  res  gestce,  44. 

of  president  of  bank  as  to  its  business,  44  n. 

of  officers  and  agents  of  insurance  co.,  4y». 

of  party  to  life  insurance,  502. 

of  employees,  adduced  against  master,  361. 

of  child  against  parent,  379. 

of  deputies  as  against  sheriff,  612. 

of  inaemniior,  612. 

of  incorporators  before  incorporation,  45. 

of  previous,  against  consolidated  corporation,  4S. 

of  members,  adduced  for  or  against  corporation. 
43. 

in  report   of  committee,   when   incompetent, 
against  corporation,  38. 

of  officers  and  agents,  to  prove  notice,  45. 

of  executors  and  administrators,  against  estate, 
58. 

— of  decedent's  insolvency,  161. 

— incompetent,  against  whom,  159. 

of  decedent,  for  or  against  executors  and  admi.  - 
istrators,  59,  60. 

of  deceased  to  witness,  68. 

of  representative  or  heir,  raising  presumption 
of  payment  to  ancestor,  69. 

of  heir,  no  prejudice  to  executor  or  adminis- 
trator. 159. 

of  one  of  several  joint  legatees  or  devisees,  to 
show  fraud  or  undue  influence,  159,  160. 

by  grantor,  rebutted  by  evidence   relating  to 
transactions  with  deceased,  70  n, 

certificate  of  marriage  as  declaration,  80,  99. 

as  evidence  of  marriage,  82,  etc. 

of  last  person  seized,  to  sustain  escheat,  86. 

statement  of  birth  in  baptismal  registry,  87. 

of  parent,  etc.,  as  to  legitimacy,  89,  90. 

as  hearsay  as  to  facts  of  pedigree,  90,  etc. 

primariness  of  oral  declarations  as  to  facts  of 
family  history,  96. 

as  to  domicile,  107. 

of  third  persons  as  to  possession  of  lands,  un- 
der ancient  will,  128. 

of  testator  as  to  contents  of  lost  will,  127. 

— no  part  of  testamentary  acts,  129. 

— admissibility  in  aid  of  interpretation,  129,  etc. 

—as  to  alterations  in  will,  134. 

— to  rebut  extrinsic  evidence  as  to  genuineness 
of  will,  136. 

— to  identify  person  named  in  will,  137,  etc. 

—to  explain  latent  ambiguity,  140. 

—or  misdescriptions,  148  A. 

—to  ideniify  property,  144. 

— as  to  boundaries,  145  n. 

of  decedent  and  beiu-ttciary,  to  show  intent  as 
to  advancement,  151,  etc. 

of  ancestor,  as  to  title,  157. 

of  husband  or  wife,  165,  etc. 

—as  to  agency  of  one  for  the  other,  167. 

—as  to  her  title,  169. 

— as  to  services  and  payment  of  wife,  176, 177. 

—as  to  causes  of  separation,  179,  085,  679. 

— as  to  charge  on  separate  estate,  184. 

of  husband  competent,  against  widow  in  dow. 
er,  708. 

of  joint  parties  or  joint  defendants,  187,  etc. 

of  subordinate,  when  admissible  against  supt/ 
rior,  199. 

of  conspirators,  190,  621. 

to  show  partnership,  207,  209. 

of  partners,  205,  218. 


GENERAL  INDEX. 


839 


ADMISSIONS  AND  DECLARATIONS—  ConCd. 
— as  to  authority  or  scope  of  business,  214. 
— after  dissolution,  ~1S. 
of  dec<-;i.-ed  ami  surviving  partner,  225. 
of  cestul  que  tnut,  'Mti. 
of  trustees,  238. 
in  relation  to  pale,  320. 
of  one  buving  us  ayent,  that  he  was  principal 

debtor!  .T;I. 
of    agent,  t  >  show  transaction  for   benefit  of 

principal,  299. 

of  seller  or  his  agent,  to  show  warranty,  348. 
as  to  use  and  occupation,  liiO. 
as  to  hire  of  chattels,  35ii. 
of  intention  to  compensate  services,  359. 
—or  liability  for,  360. 
as  to  amount  of  purchase  money,  383. 
as  to  negotiable  paper,  417. 
— of  genuineness  of  signature,  392. 
—Affecting  title,  405. 
— as  to  time  of  indorsement,  413. 
—  of  drawee  adduced  against  drawer,  421. 
— as  evidence  of  notice  of  protest,  430,  etc. 
— to  prove  demand  and  notice,  434. 
as  to  incumbrance,  MO. 
as  to  meaning  of  instrument,  526. 
in  case  of  negligence,  587. 
as  evidence  to  whom  credit  was  given,  619. 
as  evidence  of  title  to  crops,  024. 
respecting  trespass,  630. 
of  validity  of  process,  032. 
in  actions  for  assault,  649. 


in  ejectment,  710. 

as  to  title  to  lands,  710. 


competency  and  effect  of,  in  creditors'  actions, 
710. 

in  divorce,  743,  747. 

in  patent  cases,  760. 

in  penal  actions,  773. 

in  cases  of  forfeiture,  784. 

in  admiralty  cases,  785. 

of  infant,  to  enow  original  transaction,  796. 

of  party,  to  show  usury,  795. 
ADULTERY,  how  proved,  743-748. 

husband  or  wife  as  witnesses,  165,  747. 
ADVANCEMENTS,  150-156. 
ADVERSE  ENJOYMENT,  of  easement,  640. 
ADVERSE  POSSESSION,   of   negotiable  paper 
sued  on,  389,  444. 

as  a  defense  in  ejectment,  715. 

under  judicial  sale,  701. 

avoiding  deed,  710. 

ADVERSE  PROCESS,  against  bailee  or  bailor,554. 
ADVERSE  TITLE,  in  actions  on  lease,  530. 
ADVERTISEMENT,  action  for  compensation  for, 
876. 

forbidding  trust,  to  rebut  marriage,  84  n. 

to  sustain  escheat,  86. 

designation  in,  to  show  usage  as  to  name,  143. 

by  partners  as  proof  of  partnership,  208. 

—or  of  dissolution,  233. 

description  of  goods  in,  as  a  warranty,  341,  345. 

offering  reward,  383. 

of  loss  of  negotiable  paper,  450. 

libelous,  663. 

foreclosure  by,  701. 

of  utility  of  invention,  756. 

ADVICE,  as  evidence  of  good  faith,  602,  655,  741. 
AFFECTION  of  husband  and  wife  in  crim.  con., 
685. 

of  parties  to  marriage  promise,  677. 
AFFIDAVIT  of  denial  of  receipt  of  notice  of 

protest,  427. 
AFFIRMATIVE  RELIEF  demanded  in  answer, 

886. 
AGE,  direct  testimony  to,  87. 

hearsay  as  to  relative  age,  91. 

declarations  as  to.  92  n. 

assumption  of  suffrage  or  submission  to  taxa- 
tion, 96. 

entry  in  Bible,  96  n. 

decree  of  probate,  indicating,  110. 

presumptive  limit  of,  73. 

raises  no  presumption  of  survivorship,  79. 

— nor  of  marriage,  79. 

—nor  of  imposition  on  testator,  119n. 


AGE—  Continued. 

presumption  that  possiOility  of  Issue  is  extinct, 
86,  724  n. 

aids  evidence  of  identity,  102. 

not  a  testamentary  disqualification,  115. 

infant's  age,  7:15. 

age  of  document,  128  n,  397,  709. 
AGENCY,  inferred,  from  joint  business,  or  courso 
of  business,  189,  1!H). 

not  presumed  from  paying  debt,  252. 

proof  of,  in  action  for  money  received,  279. 

not  proved  by  reputation,  Sou. 

how  proved  against  wife,  358. 

ratification  as  proof  of,  566. 

presumed  to  continue,  482. 

of  partners,  ended  by  dissolution,  219. 

to  request  advance  of  money,  250. 

to  sign  or  indorse,  399,  403. 

to  fill  blanks  in  note,  etc.,  408. 

to  accept  bill  or  refuse,  421. 

to  demand  payment,  424. 

indorsement  for  purposes  of,  414. 

as  to  accommodation  paper,  442. 

as  to  insurance,  476,  etc. 

as  to  account  stated,  460. 

to  arbitrate,  465. 

to  sign  sealed  contract,  509. 

—charter  party,  517. 

to  sell  passage  ticket,  579. 

in  malicious"prosectition,  653. 

of  delinquent  in  case  of  negligence,  591. 

to  sustain  notice  to  one  of  two  joint  obligors.  100. 

foundation  for  admitting  declarations  of  parties 
having  joint  interest  or  liability.  188. 

—or  confederates  or  conspirators,  191. 

—or  trustee,  236. 

defendant  only  an  agent,  2S2,  208,  334,  360,  386. 

denial  of  agency  to  buy  goods,  333. 

necessity  of  disclosure,  860. 

notice  of  defective  authority,  451. 

fraud  by  agent,  615.    (And  see  AGEXT.> 
AGENT,  act  of,  proved  under  general  allegation, 
287. 

authority  proved  under  general  allegation,  32. 

fraud  of,  under  general  allegation.  3S. 

ratification  under  allegation  of  authority,  32. 

appointment  of  corporate,  40. 

delegation  by  corporation,  32. 

authority  of  corporate,  40. 

clerk  found  behind  desk,  41  n. 

dress  indicating  brakeman,  41  n. 

authority,  when  presumed.  34. 


, 

—proved  by  ratification,  37. 
—  by  parol,  37. 
—by  his  own  testimony,  43. 


—  bv  corporate  minutes,  48. 

to  buy,  when  presumed  to  have  power  to  re- 

scind, 335. 

authority  of,  to  receive  payment,  800. 
—presumed  from  agency  in  sale,  800. 
authority  of  carrier's  receiving  agent,  564. 
authority  of,  by  corporate  note  or  resolution,  41. 
implied  scope  of  authority,  41. 
authority,  to  dissei/e,  43  rt. 
—to  negotiate  a  loan,  43. 

—  to  warrant,  841. 
—to  use  sample.  344. 

—  to  receive  payment,  447i. 
sealed  authority,  506. 

death  of  principal  ends  authority,  801. 
presumption  as  to  husband's  acts  for  wife,  174, 

182,  184. 
—as  to  wife's  act  for  husband,  177. 

—  to  purchase  nect'.-sario.  K*,  179. 
fraud  committed  by  husband,  185. 
presumptions  as  to  conduct  of  corporate,  33. 
corporation  liable  for  wrong  by,  38. 

wilful  and  malicious  act  of,  38. 
request  by,  for  loan.  241. 
a  'i  ion  by,  for  money  paid.  252. 
—for  advances  and  charges,  252  n. 

—  for  money  received.  •-';  t. 

limit  of  recovery  for  money  paid,  264. 
parol  to  show  principal  in  contract,  298. 

Sroof  of  purchase  by.  298. 
able  as  undisclosed  principal,  300. 


840 


GENERAL  INDEX. 


AGENT—  Continued. 

liable  for  price  of  gooda,  801. 

discretion  of,  as  to  "  more  or  less,"  805. 

broker,  when  agent  of  both,  329. 

understanding  nf  mutual  agent,  330. 

presumptions  as  to  payment  by  negotiable  pa- 
per <if.  :«1. 

eet  off  of  price  against,  333,  800. 

receipt  on  delivery  of  check,  804. 

receipt  of  usury  by,  794. 

part  payment  by,  824. 

acts  in  course  of  business,  32. 

parol  contract  by  corporate,  34. 

words  of  agency  in  signature,  37. 

eigning  for  corporation  personally  liable,  87. 

accounts  and  entries  by,  52. 

—in  firm  books,  218. 

minutes  of,  when  not  conclusive  on  corpora- 
tion, 52. 

estoppel  of  married  women  by  acts  of,  167. 

admissions  and  declarations  of,  44,  327. 

— of  government  agent,  195. 

— of  partnership  agent,  218  n. 

— of  husband  or  wife  as,  166, 167. 

— for  husband  or  wife,  167. 

confession  by,  748. 

price  named  by,  evidence  of  value,  307. 

price  current  issued  by,  309. 

— to  show  warranty,  348. 

preliminary  question  to  admit  declarations,  191. 

knowledge  of,  evidence  against  principal,  772. 

notice  to,  of  dissolution  of  partnership,  224. 

notice  to,  binding  corporation,  45. 

— municipal  corporation,  45  n. 

letters  of,  as  part  of  res  gesta,  265. 

competent,  though  an  interested  witness,  63. 

interview  with,  since  deceased,  not  excluded,  67. 

actions  by  principal,  against,  552,  etc. 

— against  collecting  bankers,  558. 

eviction  of,  654. 

evidence  to  charge  personally,  400. 

by-laws,  when  competent  against,  48  n. 

participation  in  profits  by,  211.  n,  212. 

when  made  constructive  trustee,  238. 

receipt  of  money  by,  276. 

action  against,  for  money  received,  279. 

—for  consideration  of  conveyance,  275. 

refusal    to   account    for   goods,    evidence  of 

gale,  280. 

opinion  of,  as  to  necessity  of  act,  281. 
defendant  contracted  as  agent,  282,  298,  334,  360, 

386. 

parol  to  exonerate,  334.    (And  fee  AGENCY.) 
AGGRESSOR,  in  assault,  647,  650. 
ALIENAGE,  86,  102. 

presumption  of  naturalization.  750. 
ALTERATION,  how  pleaded,  407. 
in  will,  133. 

in  account  of  party,  325. 
in  entries,  322  n. 

in  negotiable  paper,  406,  407,  420,  441. 
to  correct  error  in  protest,  427. 
of  numberin  coupon  bond,  453. 
in  deed,  696. 

in  bond  or  mortgage,  721. 
noting,  in  attestation  clause,  505. 
in  record  of  judgment,  538. 
in  public  document,  749. 

AMBIGUITY,  as  to  identity  in  letters  of  admin- 
istration, 56. 

in  words  of  gift  causa  mortis,  60. 
in  designation  of  lease,  527. 
latent,  in  name,  140. 

explained  by  parol,  129  n.,  137,  140,  484,  485. 
— by  declarations  of  testator,  143  re.,  146. 
as  to  which  of  two  parcels,  145. 
In  memorandum  of  sale,  293  n. 
in  notice  of  protest?  432. 
what  is  in  contract,  484. 
ambiguous  clanse  how  construed,  526. 
—practical  construction,  509, 526. 
in  libel,  664. 

between  vendor  and  purchaser,  726. 
AMERICAN  EXPERIENCE  TABLES,  724  note. 
ANCESTOR,  title  and  declarations  of.  156,  157. 
admissions  and  declarations  as  to  title  to  land. ;  10. 


ANCESTOR—  Continued. 

judgment  against,  when  competent  against  heir, 
160. 

action  to  charge  heir,  next  of  kin,  etc.,  161. 
ANCIENT  DOCUMENT,  mode  of  proof,  708. 

title  under,  708. 
ANIMALS,  actions  for  injuries  by,  645. 

opinions  of  witnesses  as  to  diseases  of,  347. 
ANNUITIES,  participation  in  profits  by  annui- 
tants, 211  n,  212  n. 

value  of,  602. 

ANOTHER  ACTION  PENDING,  717,  786. 
ANSWER,  defense  and  counter-claim,  835. 
APPEAL,  effect  on  judgment,  549. 

—  on  former  adjudication,  834. 
APPEARANCE,    and   accounting   by  executors 

and  administrators.  55  n. 

in  judgment  of  sister  State,  548. 
APPLICATION,  for  insurance  policy,  477,  etc. 
APPLICATION  OF  PAVMKNTS,  810,  811. 
APPROPRIATION  OF  PAYMENTS,  810,  811. 
APPOINTMENT,  of  officers  and  agents  of  corpo- 
ration, 40,  61. 

production  of,  how  compelled,  51. 

of  executor  and  administrator,  55,  57. 

color  of,  to  constitute  color  of  office,  193  n. 

co lor  of,  by  officer,  de  facto,  201  n. 

to  public  office,  749. 

—by  parol,  194,  201. 

of  deputy  or  subordinate,  198. 

evidence  of  in  action  for  refusing  to  serve,  200. 

record  of,  when  conclusive,  201. 

of  receiver,  231. 

of  ship's  husband,  252  n. 
APPORTIONMENT,  of  rent  in  actions  on  lease, 

533 

ARBITRATION,  collusiveness  of,  on  question 
of    breach   of   warranty,    346.      (And    see 
AWARD.) 
ARBITRATOR,  competency  to  impeach  award, 

468,  470. 
ARCHITECT,  certificate  of,  371. 

action  by  for  services,  377. 
ARSON,  proving  beyond  reasonable  doubt,  495. 
ART,  state  of  the,  759,  765  u. 
ARTIST,  action  for  painting,  376. 
ASSAULT  AND  BATTERY,  actions  for,  646,  etc. 

injury  and  damages,  649. 

provocation,  650. 

ASSENT  to  agreement  made  by  letter  or  tele- 
gram, 289. 

silence  as,  272. 

of  creditor  to  assignment  for  his  benefit,  10. 

presumed  from  solemnization  of  marriage,  80. 

of  wife,  166. 

of  husband  to  wife's  conveyance,  174  n. 

by  officer  to  acts  of  deputy  or  subordinate,  198. 

to  act  of  partner.  217, 222,  228. 

to  payment  of  money  to  defendant's  use,  249. 

to  payment  of  tax,  254  n. 

to  suretyship,  255. 

in  action  for  non-delivery.  337. 

by  shipper,  to  limited  liability  of  carrier,  574. 

to  payment  by  mail,  803. 

denial  of,  as  a  defense,  787. 
ASSESSMENT,  payment  by  mistake  for,  260  n. 

request  to  pay,  266. 

on  insurance  notes,  455. 

presumption  of  payment  of,  from  lapse  of  time, 

812. 

ASSESSMENT  ROLL  to  support  tax  title,  704. 
ASSESSOR,  competent  to  identify  property,  704. 
ASSETS,  title  of  executors  and  administrators  to, 
54. 

a  jnrisdictional  fact  forissuing  letters,  57. 

declarations  of  decedent  as  to  amount  of,  60. 

return  of  execution  against  executor,  etc.,  un- 
satisfied to  show  want  of,  161. 

disposal  of,  by  partner,  after  dissolution,  218. 

charging  member  of  partnership  with,  229. 
ASSIGNEES,  actions  by  and  against,  1. 

equities  against,  8. 

notice  to  charge,  8. 

impeachment  of  title  of,  8. 

title  derived  from,  9. 

not  to  testify  to  personal  transactions  with  de- 
ceased, etc.,  10,  65  n,  69  re. 


GENERAL  INDEX. 


841 


ASSIGNEES-  Continued. 

how  affected  by  admissions  and  declarations  of 
assignor,  11,  503,  740. 

incompetency    of    declarations   of  temporary, 
11  n. 

of  receiver,  suit  by,  231  n. 

part  payment  by,  no  revival  of  debt,  823  n. 

in  bankruptcy,  proof  of  title  of,  9. 

in  insolvency,  proof  of  authority  to  sne,  9. 

for  benefit  o'f  creditors,  proof  or  title  of,  10. 

— liability  for  rent,  532. 

—evidence  of  frund,  740. 
ASSIGNMENT,  allegation  of,  material,  1. 

and  re-assignment  Before  action,  1,«419. 

after  suit  brought,  insufficient,  1. 

requisite  proof  of,  2. 

implied,  2. 

distinguished  from  "  taking  up,"  2,  449. 

presumptive  evidence  of,  3. 

when  within  Statute  of  Frauds,  3 

date,  2. 

consideration,  4. 

seal,  3. 

schedules,  6. 

object  of,  when  material,  5. 

for  purpose  of  suit,  5,  8. 

for  purpose  of  collateral  security,  9. 

primarfness  of,  6,  5. 

proof  of  execution  of,  6. 

delivery  and  acceptance,  6. 

by  corporation,  6,  85,  47. 

oral  evidence  to  vary,  7, 

— to  show  relation  of  principal  and  agent  be- 
tween parties  to,  280. 

equities  against  assignee,  8. 

l/ona  fide  purchaser  protected,  8,  697,  etc., 

of  subject  of  order  from  one  who  gave  it,  302. 

of  order  for  goods,  recovery  by,  for  non-deliv- 
ery by  holder,  338. 

of  lease  or  leasehold,  531. 

of  patent,  758. 

of  copyright,  766. 

shown  to  have  been  made  as  collateral,  768. 

intent  as  to  tacit  transfers  between  husband  and 
wife,  173. 

of  judgment,  damages  on  breach  of  warranty 
on,  349. 

fraudulent  intent  of  assignee,  to  impeach,  789. 

person  deriving  title  by  or  through,  when  not  to 
testify,  62,  64. 

admissions    and   declarations.    (See  ASSIGNEE 

and  ASSIGNOR.) 

ASSIGNMENT   FOR   BENEFIT    OF   CREDI- 
TORS, proof  of  creditors'  assent,  10. 

fraud  in,  740. 

specifying  demand  in,  as  new  promise,  823  n. 

(See  also  ASSIGNEE.) 

ASSIGNOR,  cause  accruing  to,  when  inadmissi- 
ble, 1. 

bias  of,  10. 

sufficiency  of  uncorroborated  testimony,  10. 

not  to  testify  to  personal  transactions  with  de- 
ceased, etc.,  10,  62,  64. 

admissions  and  declarations  of,  11,  503,  740. 

— in  case  of  conspiracy,  14. 

—as  to  patents,  760. 

offer  to  prove  acts  and  declarations,  18. 

payment  to,  802. 

receipt  given  by  before  transfer,  14. 

must  be  subpoenaed  to  produce  paper,  14. 
ASSOCIATIONS,  actions  by  and  against,  15,  etc. 

between  members  of,  16. 

individual  liability  of  members,  768.    (See  also 
CORPORATION?,    PARTNERSHIP  and  JOINT 
STOCK  CostPAMi 
ASSUMPTION  of  debt  of  third  person,  386. 

of  mortirairr,  7'J). 
ATTAt  il.MKXT.  jurisdiction,  547. 

when  not  presumed  satisfaction  of  judgment, 

802 
ATTACHMENT,  of  parties  to  breach  of  promise, 

ATTESTATION,  of  record,  537,  etc. 

under  Act  of  Congress,  54<2. 
ATTESTATION  CLAUSE,  in  will,  112. 

referring  to  seal,  3UA. 


ATTESTATION  CLAUSE-  Continued. 

noting  alterations,  505. 

ATTORNEY,  incompetent  to  prove  services  to 
deceased,  against  representative,  69. 

privileged  communications,  226  n,  501. 

for    corporation,    notice    to    produce    books, 
etc.,  51. 

register  of,  702. 

liability  of  married  woman  for  fees  of,  184  n. 

presumption  as  to  receipt  by,  280. 

action  for  services,  877. 

unauthorized  appearance  by,  548. 

actions  against,  557,  606. 

advice  of,  656. 

deed  executed  by,  696. 

implied  authority  to  receive  payment,  801. 

knowledge  of,  when  notice  to  client,  733. 
ATTORNMENT,  by  tenant,  530. 
AUCTION,  sale  at,  3~>7. 

by-bidding,  334. 
AUCTIONEER,  suing  in  his  own  name,  327. 

declarations  to  vary  terms  of  sale,  323. 

parol  to  show  buyer,  334. 
AUTHENTICATION  of  record,  537,  %tc.,  542. 

of  deed,  693. 

of  certified  copy  of  patent,  etc.,  760. 

of  books  of  corporation,  49. 

of  document  after  action  brought,  427,  505. 
AUTHOR,  action  for  compensation,  377. 
AUTHORITY,  shown  under  general  allegations, 
32. 

shown  by  testimony  of  officer  or  agent,  43. 

not  by  their  declarations,  43. 

—by  general  reputation,  40. 

by  ratification,  37. 

—under  general  allegation,  32. 

allegation  of  express  parol,  43. 

implied  in  title  of  office,  42. 

implied  scope  of,  41. 

of  executors  and  administrators  to  sue,  64. 

of  husband  or  wife  as  agent  for  the  other,  167. 

of  husband  to  apply  wife's  funds,  174. 

of  wife  to  buy,  etc.,  for  husband,  177. 

of  husband  to  contract  as  agent  of  wife,  182. 

of  husband  showing  coercion  of  wife,  185. 

of  one  engaged  in  joint  business,  190. 

of  one  joint  owner  to  borrow  money  for  all,  242. 

of  members  of  corporation,  40. 

of  corporate  officer  or  agent,  40,  48. 

—to  make  parol  contract,  34. 

—to  execute  deed,  proved  by  parol,  36. 

—to  seal  deed,  35,  36. 

— to  assign,  35. 

— to  draw  bills,  41  n. 

—to  make  sale  out  of  course  of  business,  35. 

— burden  of  disproving,  40. 

of  servants  of  corporation,  41. 

by  vote  or  resolution  without  seal,  41. 

of  partner,  205,  209,  214,  216,  218. 

knowledge  of  partner's  want  of,  222. 

of  partner  after  dissolution.  21!). 

of  officer,  production  of  how  compelled,  61. 

of  officer  deiure,  41. 

of  public  officer,  to  contract,  194,  195. 

—to  cue,  197. 

of  officer  or  agent,  7. 

to  request  loan,  241. 

to  make  request  or  promise,  for  money  paid,  250. 

of  broker  to  sell.  : 

to  warrant,  341,  ail. 

to  use  sample.  :'.  1 1. 

to  receive-  price,  SOI. 

to  purchase  goods,  333. 

to  hiirn  or  indorse.  3!i!>. 

to  recover  oil  lease,  525. 

to  pay,  800. 

to  make  part  payment,  824. 

to  muke  payment  by  mail,  603. 

to  receive  mooer,S78. 

to  make  tender,  817. 

to  disseize  so  as  U>  acquire  adverse  possession, 
42  n. 

scope  of,  in  sale  of  goods,  298. 

notice  of  limits  of,  41  n. 

liability  of  assumed  ai;ent,  801. 

to  violate  law,  772.  (Aiul  set  AUKNCT  and  AOBXT.) 


842 


GENERAL  INDEX. 


AUTHORSHIP,  not  proved  by  opinion,  377. 
AU'AKI),  action  on,  405,  etc. 
admissible  under  allegation  of  account  stated, 

4.MI. 

admissible  to  prove  damages,  511. 

as  a  former  adjudication,  ,s:*i. 
BAD  CHAItACTKK.    (See  CHARACTER.) 
BAIL,  sheriff's  failure   to  take,  608.    (See  also 

BONDS.) 
BAILMENT,  actions  on  contract  of,  etc.,  653. 

purol  to  show,  an  advancement,  154. 

—to  explain  Instrument  Importing,  289,  553. 
BAILEES,  action*  against,  552,  etc. 

—for  money  received,  274  n.. 

oral  to  vary  writing,  154,  289,  553. 

estoppel  of,  554. 

eviction,  554. 
BALLOTS,  T49. 
BANK,  corporate  existence  of  national  bank,  22. 

organization  of  national,  232. 

false  description  in  will,  145  n. 

action  by  for  overdraft,  279. 

custom  to  collect  disclosing  agency,  282  n. 

action  by  Depositor  for  money  received,  277. 

action  against  on  check,  454. 

admission  by  crediting  payment  in  pas8-book,13. 

balancing  and  returning  pass-book,  278,  459. 

competency  of  admissions  of  president,  44  n. 

appointment  of  receiver  of  national,  231.  (And 

see  following  words.) 
BANK  BOOK,  as  an  account  stated,  245, 278, 459. 

primarinetfs  of,  in  action  for  money  lent,  245. 

incompetence,  to  show  money  lent,  244  n. 

when  not  competent  against  stockholder,  48. 
BANK  CHECKS,  actions  on,  453. 
BANKERS,  actions  against  as  collecting  agents. 
558. 

when  deposit  with,  recoverable  as  a  loan,  243. 

check  drawn  on,  evidence  of  payment  not  of 
loan,  244. 

conversion  by,  558. 
BANK  NOTES,  payment  by,  277,  805. 

as  evidence  in  action  for  money  received,  277. 
BANK  OFFICER,  memoranda  of,  429. 
BANKRUPTCY,  admissibility  of  copies  of  pa- 
pers in,  9. 

proof  of  assignee's  title,  9. 

primariness  of  assignee's  assignment,  9. 

schedule  as  admission  of  debt,  10. 

— as  showing  true  owner  of  claim,  786. 

inadmissibility  against  assignee  in,  of  declara- 
tions before  appointment,  11  n. 

dissolves  partnership,  without  notice,  222. 

of  corporations,  etc.,  768. 

discharge  in,  819. 
BAPTISM,  registry  of,  as  proof  of  birth,  86,  98. 

— identity  of  person  mentioned,  101. 
BAR,  evidence  of  keeping,  774. 
BARRATRY,  500. 
BEER,  intoxicating,  778. 

BEER  PUMP,  as  evidence  of  liquor  business,  774. 
BATTERY,  actions  for  assault  and,  646,  etc. 
BELIEF  of  donor,  in  construction  of  trust,  234. 

proved  by  testimony  of  party,  620. 

as  to  works  of  "  necessity  or  charity,"  791, 

of  witness,  when  competent,  395,  745. 
BIAS  of  assignor,  how  shown,  10. 

of  declarant,  as  to  facts  of  family  history,  95  n. 
BIBLE,  "  family  record  "  in,  SO  n.,  93,  96  n. 
BIGAMY,  presumption  of  deaeh  after  seven  years' 
absence,  75. 

exceptions  from  statute  of,  83. 

cogency  of  evidence,  495. 
BILL  pP  LADING,  how  proved,  564,  565,  etc. 

as  evidence  of  title  to  goods,  318,  487. 

— in  married  woman,  180. 

as  evidence  of  delivery,  564. 

mere  admission  or  declaration  of  consignor,288  n. 

mailing  of,  on  delivery  through  carrier,  815. 

terms  as  to  delivery,  576. 

explanation  of,  566,  567. 

eflectof  warning  consignee,  etc.,  572. 

usage  of  seller's  duty  in  taking  and  forwarding, 

316. 

BILL  OP  SALE,  distinction  between,  and  bill  of 
parcels,  as  best  evidence,  6. 


BILL  OF  SALE—  Continued. 

ruiminu;  to  married  woman  individually,  170. 

as  evidence  of  ownership,  488,  623. 

parol  to  idi-ntify  thiiii,',  303. 

—to  vary  consideration,  280. 
BILL  RENDERED,  as  aa  account  stated,  459. 

not  a  limit,  368. 

BILLS,  NOTES  AND  CHECKS,    authority   to 
make  for  corporation,  35,  41  n. 

of  husband  to  sign  for  wife,  182  n. 

power  of  trading  company  to  make,  42. 

deemed  signed  at  tinie  of  delivery.  219  n. 

child's  note  for  an  advancement,  154. 

husband's  notes  for  goods  bought  by  wife,  176. 

note  given  by  wife  rebuts  her  agency  for  hus- 
band, 178. 

to  married  woman,  prima  fade  of  her  title,  180. 

intent  to  charge  separate  estate,  183.          * 

sealed  note  of  firm  for  debt,  216. 

receipt  by  holder  to  indorser,  showing  payment 
as  against  maker,  261  n. 

admissions  and  declarations  of  maker  and  in- 
dorser. 186  n. 

— of  president  of  bank,  44  n. 

presumption  that  drawees  know  signature  of 
others,  270. 

presumption  that  depositor  had  funds  in  bank, 
279. 

discharge  of  Indorsersby  neglect,  246. 

action  between  parties  for  money  paid,  257. 

— for  proceeds  of  negotiable  paper  wrongfully 
received,  274  n. 

loan  presumed  from  usurious  discount  at  incep- 
tion, 795. 

when  evidence  of  money  lent,  239,  243  n.,  244. 

entries  in  check  book,  in  action  for  money  lent, 
245  n.,  241. 

draft  as  a  demand  of  payment,  331. 

promise  to  pay  draft  as  proof  of  delivery  of 
goods,  315. 

joint  note  as  proof  of  partnership,  221. 

change  in  printed  checks,  notice  of  change  of 
partners,  224  n. 

payment  by  check  or  draft,  803. 

check  presumptive  payment  of  debt,  not  a  loan, 
245.. 

—evidence  of  "money  paid,"  259,  260,  263,  268. 

payment  by  note,  etc.,  of  debtor  or  third  person, 
331,  804. 

usage  to  give  notes,  on  question  of  payment  for 
goods,  313. 

creditor  giving  note  to  debtor  to  show  payment, 
809. 

payment  by  bank  on  forged  checks,  278. 

tender  by  check,  816. 

delivery  or  tender  of  new  notes  in  composition 
with  creditors,  816. 

warranty  of  negotiable  paper,  340. 
BIKTH  of  children   not   presumed,    but   slight 
proof  sufficient,  85. 

registry  of,  and  baptism,  86,  97. 

entries  of,  in  family  record,  93. 

proved  by  hearsay,  91. 

physician's  testimony,  or  account,  87. 

testimony  of  parents  to  date  of,  89. 

not  a  "  transaction  "  between  mother  and  child, 
68  n. 

date  of,  in  registry,  98. 

hearsay  as  to  place  of,  91  n. 

to  be  proved  by  one  claiming  title  by  collateral 
descent,  85. 

before  marriage,  renders  child  illegitimate,  88  n. 

as  proof  of  citizenship  and  alienage,  103. 1 

of  issue,  constructive  revocation  of  will  by,  125. 
BLANK  FORM,  competent  secondary  evidence, 

428,  478. 
BLANKS,  in  nezotiable  paper,  408,  419,  441  n. 

in  date  of  sealed  instrument,  508. 

for  name  of  grantee  in  deed,  695  n. 

— in  case  of  married  woman's  deed,  175  n. 

in  will,  effect  of,  133  n. 

—not  filled  by  extrinsic  evidence,  129. 
BOARD  AND  LODGING,  action  for  compensa- 
tion, 379. 

BOARD  OF  HEALTH,  determination  of,  642. 
BOARD  OF  SUPERVISORS,  ordinance  of,  770, 


GENERAL  INDEX. 


843 


"BO  ATS, "what  arc,  485. 
BODILY  FEELINGS,  etc.,  502,  598. 
BONA  FIDE  assignee,  8. 

holder  of  negotiable  paper,  389,  430,  445-448, 
etc. 

purchaser  of  land,  697. 

burden  and  mode  of  proof,  715. 
BONUS,  action  on,  504,  etc.,  513. 

— muuicipHl  or  coupon,  451. 

primary  aud  secondary  evidence  in  foreclosure, 
71!). 

alterations,  721.    (And  see  ALTERATION.) 

of  executor  and  administrator,  57,  514. 

of  assignee  for  benefit  of  creditors,  10. 

corporate  acceptance  of,  37. 

authority  of  officer  to  contract  to  sell,  35. 

parol  assignment,  2. 

receiver's,  as  proof  of  appointment,  231. 

when   giving,  is  evidence   of    "money   paid," 
258  n. 

competency  of  public  officers  not  having  given, 
197. 

admissions  and  declarations  of  parties  liable  on 

a,  18(5  n.    (And  see  BOTTOMKY.) 
BOOKS  of  foreign  law,  22. 

of  history,  science  or  art,  699. 

entries  of  births,  deaths  and  marriages  in,  93. 

libel  in,  063. 

ancient,  49. 
BOOKS  AND  PAPERS,  refusal  to  produce,  783. 

production  of  tending  to  criminate,  753. 

how  to  be  used  on  question  of  mental  capacity 
of  testator,  119. 

of  corporation,  46,  etc. 

of  foreign  corporations,  copies  of,  50. 

foundation  for  secondary  evidence  of  contents, 
51. 

notice  to  corporation  to  produce,  51. 

entries  in  against  defendant  in  action  by  receiv- 
er, 232. 

of  bank  as  evidence  against  it  for  "money  re- 
ceived," 278. 

as  evidence  in  action  for  over-draft,  279. 

of  firm  as  evidence  in  favor  of  firm,  205. 

— against  partners,  218. 

— between  partners,  229. 

to  prove  partnership.  226. 

found  on  premise!  illegally  used,  784.    (And  see 

below.) 

BOOKS  OF  ACCOUNT,  of  party  admissible  in 
his  favor,  245,  823,  etc.,  336,  373. 

party  competent  to  identify,  69  n. 

to  show  to  whom  credit  given,  302. 

when  using  part,  admits  rest,  326.    (And  see 

BOOKS  AND  PAPERS.) 
BOTTOMRY  BOND,  615. 

BOUGHT   AND    SOLD  NOTES,    delivered   by 
broker,  329. 

description  in  as  warranty,  341. 

parol  to  vary,  343,  345. 
BOUNDARIES,  in  deed,  699,  etc. 

"by,"  "upon"  or  "along,"  highway  or  stream, 
726  ». 

declarations  of  predecessor  as  to,  when  incom- 
petent, 145«.,700,  711  n. 
BREACH  of  contract  of  employment,  584. 

of  performance  of  contract,  610. 

of  condition  of  bond,  514. 

of  covenant  to  repair,  532. 

of  duty  by  bailee,  555. 

of  promise  of  marriage,  676,  etc. 
"BRICK  BUILDINGS,'*  what  are,  485. 
BROKER,  nales  through,  328,  329. 

parol  to  show  buyer  to  be,  334. 

authority  of,  to  warrant  341. 

participation  in  profits  by,  212  n. 

action  for  compensation ",  379. 

actiom  !itr:iiii!-t,  558. 

BROTHER  AM)  SISTER,  sen-ices  between,  359. 
BURDEN   OF  PROOF,  remains  throughout  on 

plaintiff,  404. 

BURIAL,  m:istry  as  proof  of  death.  72,  97.  98. 
BUSINESS,  place  of,  when  proof  of  user,  28. 

ownership  of.  777. 

knowledge  of  usages  by  one  engaged  In.  296. 

memoranda  made  in  usual  course  of,  322. 


BUSINESS—  Continued. 

wife's  separate,  175,  180,  etc. 

inferring  agency  from  joint,  189. 

scope  of  partnership,  209,  214,  217,  etc. 

— of  limited  partnership,  221. 

presumption  of  private  dealing  by  partner,  222. 

continuance  of,    after  expiration    of   articles, 
227. 

agreement  to  devote  attention  to,  228. 

carried  on  in  name  of  another,  298. 
BUSINESS  CARD,  774. 
BUSINESS  MEN,  competent  as  to  hand-writing, 

398. 

"BUNDLE  OP  RODS,"  explained  by  parol,  485. 
BY-LAWS,  of  corporation,  38. 

when  to  be  pleaded,  40. 

not  judicially  noticed,  40. 

proof  of,  40. 

—by  statutory  record,  39  n.,  46,  770. 

adoption  proved  by  parol  or  inferred,  39. 

when  competent  against  agent  or  servant,  48  n, 

notice  of  limits  of  authority,  41  n. 
CANCELLATION  of  will.  123,  125. 

— revival  of  former  by,  125. 

of  entry  in  account  to  release  advancement,  154. 

marks  of,  on  negotiable  paper,  408. 

of  security  as  showing  payment.  805. 

of  lease,  533. 

action  for  cancellation  of  instrument,  732. 
CANVASSERS'  RETURNS  of  election,  749. 
CARD  of  business,  774. 
CARGO,  parol  to  explain  meaning  of,  in  contract, 

305,  485. 

CARLISLE  TABLES,  724  note. 
CARRIERS,  actions  agaiust  common,  564,  etc. 

delivery  through,  315. 

delivery  to,  to  satisfy  statute  of  frauds,  318. 

bailee's  estoppel,  554. 

CASHIER,  oral  evidence  that  he  acted  for  bank, 
402.    (And  see  %)£>.) 

authority  to  certify,  455. 

presumptions  as  to  authority,  401. 

competent  as  to  handwriting,  398. 
CASKS,  evidence  of  liquor  traffic.  774. 
CASUALTIES,  resistor  of.  501.  5s:;. 
CAUSE  AND  EFFECT,  connection  of,  591. 

— in  case  of  nuisance,  612. 

—of  intoxication,  777. 

CERTIFICATE  of  officer,  when  competent  for 
himself,  197. 

— not  conclusive  in  quo  warranto,  749,  750. 

by  architect,  etc.,  of  performance,  371. 

of  deposit,  evidence  to  explain,  402  n. 

of  demand,  protest,  etc.,  424,  etc. 

by  consuls,  500. 

of  acknowledgment  or  proof,  505,  693. 

of  sale  by  sheriff,  702. 

relating  to  judgment,  535.  etc. 

—under  act  of  Congress,  542. 

of  election,  749. 

of  registration  of  trade  mark,  751. 

of  copyright.  Vliti. 

of  discharge  in  bankruptcy,  conclusive  of  regu- 
larity, 819. 

of  discharge  in  insolvency,  820. 
CERTIFIED   COPIES  of    bankruptcy  proceed- 
ings, 9. 

of  statute  of  sister  state,  22. 

of  sealed  instrument  of  corporation,  35. 

primariness  of.  of  resolution  authorizing  execu- 
tion of  corporate  deed.  36. 

of  by-laws  or  ordinances,  40. 

0? Corporate  record,  50. 

of  vote  of  corporation,  when  competent,  60  n. 

of  letters  of  administration,  primariness  of,  58. 

of  copies  of  registries  authorized  by  law,  97. 

of  marriage  in  foreign  state.  H 

of  record  of  public  nut  tire,  when  competent,  99. 

of  judgment  of  divorce,  101. 

of  record  of  naturalization,  admisstbility  of,  103. 

of  appointment  of  public  ollicerto  dispense  with 
authenticity  of  original,  1!)4. 

of  oath  of  public  officer,  when  competent.  194. 

of  judgment.  535. 

of  ship's  register,  4!V>. 

of  chattel  mortgage,  025. 


GENERAL  INDEX. 


CERTIFIED  COPIES—  Continued. 

of  mechanic's  lien,  7(57. 

of  patents,  etc.,  757,  758,  760. 

of  record  of  former  adjudication,  831. 
CHARTERS  or  corporations,  21-30. 

judicial  notice  of,  21. 

of  corporation  of  sister  state,  23. 

of  foreign  corporation,  how  proved,  23. 

acceptance  of,  how  pToved,  24. 

— how  disproved,  25. 

—effect,  24. 

— of  new  powers  granted  after,  31. 

proof  of  acceptance  of,  by  municipal  copora- 
tion,  25  n. 

user,  without  formal  acceptance,  27. 

oral  admission  proof  of  acceptance,  28. 

minutes  to  prove  acceptance,  48. 
CHARACTER  of  party,  as  affecting  credit  of  ac- 
count kept  by  him,  325. 

not  in  issue  on  the  question  of  money  lost  at 
play,  283  n. 

In  action  for  price  of  croods,  336. 

pa  question  of  marriage,  84. 

in  (hvorce,  746. 

In  actions  by  judgment  creditors,  737. 

in  penal  action,  773. 

on  charge  of  criminal  conduct,  496. 

in  trespass,  630. 

in  action  for  assault,  651. 

for  defamation,  673. 

in  breach  of  promise,  679. 

in  action  for  seduction,  683. 

in  crim.  con.,  687. 

of  a  deceased  subscribing  witness  to  a  will,  112. 

of  animals,  645. 

national  character,  102. 

CHARGE  OF  CRIME  requisite  cogency  of   evi- 
dence, 494. 
CHARITY,  extrinsic  evidence  in  case  of  gifts  to, 

141. 

CHARTER  PARTY  actions  on,  518. 
CHARTS  and  m-ips,  690. 
CHATTEL  MORTGAGE  as  evidence  of  title,  625. 

when  presumed  void,  737. 
CHATTELS,  actions  for  possession,  688,  etc. 

continued  possession  as  badge  of  fraud,  737. 

—for  injuries  to  (see  NEGLIGENCE  aiid  TRESPASS). 
CHECKS,  actions  on,  453. 

check  for  bag<ragfl,  578. 

CHILDREN,  birth  of,  not  presumed,  but  slight 
proof  sufficient,  85. 

failure  of  issue,  86. 

legitimacy  of,  88. 

meaning  of,  in  will,  137. 

ademption  of  legacy  td7148. 

presumption  as  to  advancements  to,  150,  152. 

as  witnesses,  747. 

CHURCH,  judicial  notice  of  usage  to  keep  record, 
89/i. 

registry  of  marriage,  baptism,  burial,  etc.,  80, 
97-99. 

examined  copy  of  record  of,  98. 

contribution  shows  testator's  intent  in  charity, 

143. 

CIPHER,  interpretation  of  will  written  in,  132. 
CIRCULAR,  as  evidence  of  terms  contained  in, 
364. 

of  insurance  company,  484. 
CIRCULATION  of  newspaper  or  book,  665. 
CIRCUMSTANTIAL  EVIDENCE  of  intent,  773. 

of  adultery,  744. 

as  to  votes,  750. 

as  to  payment,  810. 

CIRCUMSTANCES  surrounding  contracting  par- 
ties admissible  in  interpretation,  of  contract, 
864,  484,  509. 

— of  irregular  indorsement,  440. 

— of  guaranty,  473. 

—of  sealed  instrument,  509. 

— of  delivery  of  sealed  instrument,  507. 

— to  show  what  is  an  incumbrance,  520. 

— to  interpret  bailee's  contract,  5t>l. 
CITY  ORDINANCES.  770. 
CIVIL  DAMAGE  LAW,  775,  etc. 
CLERGYMAN,  solemnization  of  marriage  proved 
by  eye  witness,  60. 


CLERGYMAN-  Continued. 

registry  of  marriage  kept  by,  80,  98. 

privileged  communications  to,  501. 
CLERK  behind  desk  presumed  to  bo  agent,  41  n- 
480,800. 

acting  as  officer,  powers  of,  43. 

declarations  of  bank  clerk  as  to  accounts,  279. 

testimony  as  to  account  being  overdrawn,  244  n. 

memoranda  of,  429. 

production  of,  who  made  entries,  245. 

entry  or  indorsement  by  notary's  clerk,  426. 

presumption  as  to  delivery  of  letters,  433. 

attestation  by,  ofjudgment  of  sister  state,  543. 
CLOUD  ON  TITLE,  action  to  remove,  718. 

does  not  sustain  ejectment,  691. 
COAST  GUARD,  registry  of,  499. 
COERCION  of  wife  by  husband,  185. 
COGENCY  OP  EVIDENCE  of  negligence,  884. 

of  demand,  etc..  of  negotiable  paper,  423. 

of  waiver  of  demand,  435. 

of  diversion  of  negotiable  paper,  442. 

of  charge  of  crime,  495,  671. 

of  corruption  or  partiality  of  arbitrator,  470. 

of  mistake,  513. 

of  deceit  or  fraud,  479,  615. 

of  assault,  649. 

of  adultery,  745. 

in  penal  action,  773. 

in  proceedings  for  forfeiture,  784. 
COHABITATION,  as  evidence  of  marriage,  79, 
83,  164.  743. 

alone  insufficient  to  prove  marriage,  81. 

following   contract  per  verba  futuro,  insuffi- 
cient, 80. 

not  necessary,  if  there  is  solemnization,  80. 

prolongation  strengthens  presumption  of  mar- 
riage, 79. 

begun  as  meretricious,  no  proof  of  marriage,  82. 

termination  of,  to  rebut  marriage,  84. 

illicit  as  evidence  on  legitimacy,  88. 

— as  evidence  in  question  of  undue  influence, 
122. 

presumption  as  to  property  kept  in  husband's 
house  during,  172. 

and  repute,  as  indirect  evidence  of  marriage,  81, 
473. 

— when  presumption  of  marriage  not  overcome 
by  denial,  85  n. 

— degree  of  proof  of,  to  be  increased  when  one 
of  parties  still  living,  81  n. 

— as  evidence  of  sexual  connexion,  743. 

and  holding  put,  as  proof  of  marriage,  178. 

and  declarations,  as  proof  of  marriage,  82. 
"C.  O.  D.,"  565. 
COLLATERAL  AGREEMENT,  proved  by  parol, 

335,  524. 
COLLATERAL  FACT,  notice  of,  772. 

recital  as  evidence  of,  712. 

former  adjudication  as  evidence  of,  826, 828. 
COLLATERAL  PROMISE  to  pay  debt  to  third 

person,  386. 

COLLATERAL  SECURITY,  assignment  of,  pre- 
sumed  from  that  of  principal  delegation,  &. 

agreement  to  apply  before  demanding  payment, 
412. 

negotiable  paper,  as,  444. 

when  acceptance  of  payment,  808. 

payment  of,  806. 

burden  of  proof  as  to  payment,  9,  445. 
COLLUSION  in  confession  of  adultery,  747. 
COLLECTING  BANKERS,  actions  against,  558. 
COLLECTOR,  duress  in  payment  to,  271.  ' 
COLOR  OF  TITLE  under  judicial  sale,  701. 
COINCIDENCES,  evidence  of  copying,  766. 
COMMISSIONS,  receiving  or  charging,  evidence 
of  agency,  279,  834. 

broker's  action  for,  379. 
COMMERCIAL  PAPER,  actions  on,  387,  486. 

(And  fee  BILLS,  NOTES  and  CHECKS.) 
COMMON  CARRIERS,  actions  against,  5U3,  etc. 

delivery  through,  315. 

—to  satisfy  statute  of  frauds,  318. 

bailee's  estoppel,  554. 

COMMON  EMPLOYMENT,  actions   for   negli- 
gence, 592. 

COMMUNICATION  with  deceased,  exclusion  of, 
62.  64.  G(i.  6U. 


GENERAL  INDEX. 


845 


COMMUNICATION-  Continued. 

privileged,  In  libel  and  slander,  670. 

to  professional  witness.    (See  WITNESS.) 
COMMON  COUNCIL,  ordinance  of,  how  proved, 

770. 
COMPARISON  OF  HANDS,  general  rule,  396. 

in  case  of  will,  113. 

ancient  document,  709. 
COMPANIES,  actions  against  telegraph,  C04. 

liability  of  stockholders,  etc.,  in  joint  stock,  768. 

(See  also  CORPORATIONS.) 
COMPLAINTS  of  suffering,  599. 
COMPOUN 1)  1 NTEREST,  459. 
COMPROMISE,  mode  of  proof  and  effect,  815. 

receipt  "as  a  compromise,"  807. 

by  trustees,  235. 

admission  pending  negotiation,  461. 
COMPOSITION  with  creditors,  815. 
CONCEALMENT  of  thing,  evidence  against  con- 
cealer, 371. 

of  evidence,  783. 

— in  action  for  specific  performance,  729. 

of  contents  of  instrument  from  illiterate  party, 
512. 

of  value  of  thing  converted,  627. 

in  case  of  insurance,  478,  493. 

in  account  stated,  815. 

of  value  from  carrier,  575. 
CONDONATION,  how  proved.  748. 
CONDITION  of  goods  packed,  506. 

of  person  or  tiling  injured,  594. 

of  contract,  ehown  by  parol,  294,  404. 

of  delivery  of  contract,  404,  477-8,  607. 

of  delivery  of  lease,  524. 

of  release.  818. 

in  sale  of  goods,  when  performance  or  waiver 
of,  necessary.  313. 

of  new  promise,  fulfillment  of,  824. 

precedent,  to   written  instrument,    shown   by 
parol  to  establish,  294. 

— must  be  alleged,  361. 

— performance  of,  before  passing  of  title,  317. 
CONDITIONAL  DELIVERY  of  contracts,  how 

proved,  404,  477-8,  507,  524. 
CONDONATION  in  crim.  con.,  683. 

in  divorce. 
CONDUCT  of  testator  as  part  of  res  gesla,  112. 

as  evidence  of  mental  condition,  115,  122. 

— of  testamentary  intent,  141. 

to  show  modification  of  contract  of  sale.  314. 

on  receipt  of  goods  as  part  of  rex  yesta1,  319. 
CONFESSIONS  during  cohabitation  as  proof  of 
marriage,  82. 

of  adultery,  when  competent  as  to  illegitimacy, 
89. 

— as  to  cause  of  separation,  179. 

competency  of,  in  divorce,  747. 
CONFEDERATES,  acts,  declaration,  etc.,  of,  14, 

190,621.  71ii. 

CONFESSION  OF  JUDGMENT,  presumption  as 
to  legality,  5l(i. 

as  a  former  adjudication,  P30. 
CONFIDENTIAL  COMMUNICATIONS,  disclos- 
ure of,  165. 

between  husband  and  wife,  165. 

third  person  may  testify  to,  166. 

(And  see  WITNESS.) 

CONFLICTING  CLAIMS,  determination  of,  717. 
CONNIVANCE  at  seduction,  683. 

in  crim.  con.,  686. 

in  sales  of  Honor,  782. 

CONSENT,  <>f  husband,  what  insufficient  to  wife's 
conveyance,  174. 

of  C(#tui  que  trust  to  trustee's  dealings  with  es- 
tate, 236. 

parol  to  show  recission  of  contract  as  to  re- 
ceipt, 2M. 

of  principal  to  agent  retaining  for  his  own  use, 
HI 

of  insurance  company.  481. 

CONSIDERATION,  distinguished  from  motive, 
441  //. 

enforcing  illegal  contract  and  assert ini.'  title  to 
money  ariMiig  from  it.  distinguished,  282. 

for  assignment,  when  to  be  proved,  4,  34U. 

for  negotiable  paper,  389,  404.    . 


CONSIDERATION—  Contlnved. 

— with  irregular  indorsement.  437. 

for  indorsement,  413. 

for  irregular  indorsement,  439. 

for  check,  presumed,  464. 

for  guaranty,  472. 

for  account  stated,  463. 

for  non-negotiable  paper,  457. 

to  sustain  subsequent  promise  to  reimburse,  251, 

for  deed,  697. 

of  contract  in  action  against  married  women, 
181  n. 

in  actions  by  judgment  creditors,  738. 

in  action  for  specific  performance,  730. 

to  establish  resulting  trust,  238. 

parol,  to  show,  in  deed,  741. 

—in  release,  818. 

— that  consideration  of  deed  to  husband  came 
from  wife,  171. 

statement  of  contents,  of  evidence  of  debt,  or 
of  conveyance,  to  prove,  306. 

how  far  explainable  in  deed,  741. 

parol  to  vary  written,  294  n.,  295,  280. 

variance  in,  when  immaterial  in  action  for  non- 
delivery, 338. 

seal  as  evidence  of,  50S,  817. 

completion  by  buyer  of,  before  passing  of  title, 
817. 

when  warranty  to  be  sustained  by  new,  341. 

inadequacy  of,  405. 

inadequacy,  irrelevant,  473. 

— to  show  fraud,  787. 

amount  on  discount  when  material,  449,  793. 

non-payment  of,  irrelevant,  473. 

want  or  failure  of,  in  negotiable  paper,  441,  448. 

— in  sealed  instrument,  512. 

—to  impeach  contract,  788. 

denial  of,  when  does  not  admit  defense  of  want 
of  partner's  authority,  222. 

action  to  recover  money  paid  on  failure  of,  268, 
272. 

amount  of,  not  evidence  of  bias  of  assignor,  10. 

"  love  and  affection,"  or  "  good-will,"  presump- 
tive of  advancement,  152. 

of  conveyance  to  child,  paid  by  parent,  presump- 
tive of  an  advancement,  153. 

as  evidence  of  value  of  an  advancement,  156. 

for  estate  conveyed  to  wife,  paid  by  husband, 
170. 

charging  separate  estate  of  married  women  by 
application  of,  184. 

for  partnership  contracts,  205,  214. 

with  or  from  lirm,  when  a  variance,  in  action  by 
survivor,  225. 

as  ratification  of  act  of  partner,  216,  217. 

application  of,  in  question  of  to  whom  credit 
was  given,  216. 

as  evidence  against  agent,  of  money  received, 
275. 

illegal,  as  defense  in  action  for  money  received, 
282. 

competency  of  lack  of  means,  to  disprove  pay- 
ment, 170,  810,  813. 

"CONSIGNED,"  implies  agency,  488. 
CONSIGNEES,  delivery  to,  by  notice  from  com- 
mon carrier,  576.  (And  .«<••  liit.i.  OF  LADING.) 
CONSPIRACY,   admissions   and  declarations  of 
confederates.  1 1.  ism,  C.21,  740,  etc. 

acts  and  declarations  of,  190. 

preliminary  question  as  to  connection  of  parties, 
191.     ' 

public  officer  presumed  innocent  of,  199. 

proof  of  fraud  of  one  only.  .~>.'>:i. 
CONSTABLES,  actions  by  and  a^inst,  605.  etc, 

justifying  levy,  631.    (.4m/  nee  OlTlOUB.) 
CONST  AT,  to  prove  state  grants,  705. 
CONSTRUCTION  of  writings  by  oral  evidence. 

(AfcORAL.  EVIDBNCK.) 

CONSTRUCTIVE  SERVICE  of  process,  547. 
CONSUL,  certificates  of,  500. 
"  CONTENTS  UNKNOWN."  in  bill  of  lading,  498. 
CONTINUANCE    OF  FACT.     (&x    PBBSUMP- 

CONTTINTJmG  GUARANTY,  473,  474. 
CONTRACT,  what  is  within  rules  of  evidence, 
362,523. 


846 


GENERAL  INDEX. 


CONTRACT-  Continued. 
circular  may  be,  364. 
passage  tickets  are  not,  581. 
account  stated  iis,458. 
in  duplicate  or  in  counterpart,  5?3. 
printed  and  written  forms,  407. 
memorandum  on  the  margin,  409. 
oral  insurance,  476. 
of  lease,  how  proved,  B23. 
of  bailment,  actions  on,  553. 
actions  on  sealed,  504,  etc. 
allegation  of,  implies  lawful  contract,  401. 
written,  when  admissible  under  general  allega- 
tion, 361,  471,  522. 
oral,  admissible  under    allegation  of  written, 

— when  admissible  nnder  allegation  of  specialty, 

522. 

•will  not  sustain  allegation  of  fraud,  614. 
breach  of  does  not  sustain  allegation  of  negli- 
gence, 583. 
for  compensation  of  corporate  officers,  when 

must  be  in  writing,  381. 
void  by  statute,  evidence  of  quantum  meruit, 

352,  367. 

technically  defective,  admissible  to  show  yuan- 
turn  meruit,  355. 

for  services,  under  statute  of  frauds,  363. 
between  strangers,  admissible,  354. 
carrier's  receipt  presumed  to  have  been  read, 

574. 

consideration  provable  without  actual  produc- 
tion, 405. 
Statement  of  consideration  in  past  tense  not 

conclusive,  473. 
description  of,  character  of,  contracting  parties 

explained,  402. 

oral  evidence  to  vary.    (See  ORAL  EVIDENCE.) 
— as  to  manner  of  contemplated  performances, 

376. 

written  submission  not  varied  by  parole,  466. 
practical  construction  of,  509, 526. 
words  intended  in  different  senses,  509. 
referred  te  in  a  deed,  697. 
subsequent  modification,  413. 
between  vendor  and  purchaser,  merged  by  deed, 
728.. 

(See  also  titles  of  various  classes  of  CON- 
TRACTS.) 

CONTRACTOR,  who  is,  361. 
—in  cases  of  negligence,  592. 
CONTRIBUTION,  among  joint  obligors,  254. 
to  tax,  by  joint  owners  of  land,  254  n. 
agreement  to  make,  359. 
parol  agreement  by  indorsers,  257. 
by  co-sureties,  256. 
— implied  promise  of,  255. 
proof  of  suretyship  for  purposes  of,  255. 
demand  of  pnyment.  265. 
CONTRIBUTORY  NEGLIGENCE,  6C2. 
of  passenger,  581. 

burden  of  proof  in  actions  for  negligence,  594. 
under  Civil  Damage  Act,  779,  782. 
admissible  under  denial.  561. 
CONVERSATION,  to  show  intent  or  mistake  on 

sale  of  land,  729. 
as  part  of  res  gestce  to  show  receipt  of  money, 

209. 

—-or  application,  265. 

with  bearer  of  letter,  when  competent,  266. 
how  far  whole  statement  in,  to  be  admitted, 

266. 

actions  for  crim.  con.,  684,  etc. 
CONVERSION,  actions  for,  622,  etc. 
by  bailee,  552,  etc. 
by  broker,  558. 
by  attorney.  557. 
by  carrier,  572. 
in  replevin,  689. 
•sheriff's  action  for,  605. 

allegation  of,  in  action  for  money  received,  273. 
by  agent,  when  it  does  not  defeat  his  action  for 

money  paid,  252  n. 

CONVEYANCE,  when  presumed,  709. 
—by  trustee,  237. 
evidence  of  wife's,  174. 


CONVEYANCE-  Continued. 

parol  to  show  relation  of  principal  and  agent 
in,  280. 

—to  vary  consideration,  280,  385,  738,  74°.. 

— to  show  resulting  trust  by,  238. 

— to  show  it  was  /or  benefit  of  firm,  228. 

by  trustee  of  express  trust,  235. 

voluntary,  of  insolvent  debtor,  738. 

fraudulent  intent  of  grantee,  to  impeach,  739. 

by  a,  when  presumptive  of  an  advancement,152. 

—declarations  of  donor,  as  part  of  res  fffstce,  154. 

by  husband  and  wife  jointly,  presumption  from 
as  to  title,  169. 

in  firm  name,  as  proof  of  partnership.  208  n. 

consideration  named  in,   as  evidence   against 
agent,  of  money  received,  275. 

to  disprove  joint  interest  or  liability,   188  n. 

(See  also  DEED.) 
CONVICTION,  on  plea  of  guilty,  746. 

competent  in  action  for  reward,  383. 

of  assault,  649. 

COPY   of  papers   in  bankruptcy,    admissibility 
of,  9. 

of  statute  of  sister  state,  22. 

of  foreign  corporation,  23. 

of  record  of  corporate  proceedings,  primariness 
of,  48. 

signature  of  officer  to  corporate  minutes,  not 
official,  49. 

of  corporate  records,  competency  of,  50. 

of  public  record,  authenticated  by  officer,  50  n 

of  vote  of  corporation,  50  n. 

of  books  of  foreign  corporations,  50. 

of  family  record,  when  admissible,  96. 

of  registries  authorized  by  law,  97. 

of  marriage  in  foreign  state,  97  n. 

of  record  of  a  church,  admissibility  of,  98. 

photographic,  of  a  signature,  when  not  admis- 
sible to  aid  expert,  113,  398. 

of  foreign  probate  of  will,  128. 

of  entries  in  bank-bonk  or  pass-book,  245. 

of  entry,  when  used  as  memorandum  refreshing 
memory,  320. 

of  account  kept  by  party  when  admissible  in  his 
favor,  325. 

of  notice  of  protest,  427. 

sworn,  of  judgment,  536. 

of  book  or  other  publication,  664. 

in  patent  cases,  761. 

of  mechanic's  lien,  767. 
COPYRIGHT,  action  for  infringement,  766. 

relevancy  of  in  trade-mark  case,  751. 
CORPORATIONS,  actions  by  and  against,  17. 

pleading  as  to  corporate  existence,  18. 

necessity  of  proof  of  corporate  existence,  18. 

proof  of,  though  not  pleaded,  18. 

general  principle  as  to  proof  of  incorporation, 
30. 

de  facto  corporate  existence  sufficient,  18. 

when  de  facto,  19. 

—modes  of  proving,  23. 

strict  proof,  when  required,  18, 19. 

what  proof  necessary  to  take  by  will,  19. 

extrinsic  evidence  in  case  of  corporate  designa- 
tion in  will,  138. 

— presumption  as  to  inexact  designation  of,  140. 

three  elements  of  strict  proof,  19. 

proof  when  incorporation  is  incidentally  in  is- 
sue, 20. 

legislative  sanction  necessary,  20. 

— shown  by  charter  or  statute,  20. 

legislative  recognition  of  existence,  20. 

judicial  notice  of   special  charters  of  munici- 
pal, 21. 

proof  of  charter  of  domestic,  21. 

—of  sister  state,  22. 

— of  foreign,  23. 

acceptance  of  charter,  how  proved,  24. 

— how  disproved,  25. 

necessity  of  acceptance  of  municipal  charter, 
25  n. 

organization  of,  under  general  law.  25. 

— competency  of  minutes  to  show,  48. 

duplicate  certificates  of  incorporation.  25. 

incorporation  under  general  (statute  of  a  sister 
state,  26. 


GENERAL  INDEX. 


847 


CORPORATIONS—  Continued. 

official  permission  to  do  corporate  business,  28. 

disregard  of  statute  conditions,  26. 

color  of  organization  and  user,  when  sufficient, 
27. 

compliance  with  charter  conditions  presumed, 
27. 

effect  of  proof  of  user,  27. 

mode  of  proving  user,  27. 

certificate  of  comptroller  of  currency  as  to  or- 
gani/.aiioii  of  national  bank,  232. 

admission  of  incorporation,  28. 

estoppel  against,  28. 

— against  those  dealing  with,  29. 

estoppel  against  members  and  subscribers  of, 
29. 

estoppel  liberally  applied  for  and  against,  30. 

date  of  incorporation,  30,  31. 

misnomer  of,  goes  only  in  abatement,  31. 

-in  will,  138,  140. 

fraud,  forfeiture  or  non-user,  as  to  corporate  ex- 
istence of,  31. 

quo  warranto  as  to,  750. 

corporate  powers  in  general,  31. 

acceptance  of  new  powers,  81. 

original  and  delegated  powers,  32. 

acts  of  officers  or  agents  of,  in  course  of  busi- 
ness, 32. 

authority  proved  under  general  allegations,  32. 

ratification  proved  under  allegation  of  authori- 
ty, 32. 

delegation  of  power  to  officer  or  agent,  32. 

allegation  that  contract  was  made  by  president 
and  directors,  32  n. 

impeachment  of  power  of  officer,  resting  on 
consideration,  32. 

validity  of  acts  of,  sustained  by  equitable  estop- 
pel, 33. 

power  of,  to  acquire  a  patent,  when  inferred, 
33  n. 

validity  of  loan  by,  when  presumed,  33  n. 

acts  presupposing  other  acts,  33. 

acta  not  presumed  illegal,  33. 

general  presumptions  as  to  corporate  acts,  33. 

— of  validity  of  acquiring,  etc.,  real  estate,  33  n. 

impeachment  of  acts  of,  presupposing  other 
acts,  34. 

presumed  authority  of  officer  or  agent,  34. 

contracts  by,  34. 

implied  promises  by,  34 

presumed  authorization  or  ratification  by  di- 
rectors, 34. 

simple  contracts  in  writing,  when  valid,  34. 

unsealed  contract,  not  varied  by  parol,  34. 

— primariness  of,  34. 

negotiable  paper  made  by,  401. 

authority  of  person  executing  it,  35. 

assignment  by,  6. 

authority  of  person  executing  assignment,  7,  85. 

oral  evidence  that  officers  signed  for  company, 
402. 

—of  officer  to  make  sale  out  of  course  of  busi- 
ness, :>."). 

authority  to  president  of,  to  execute  power  of 
attorney,  £5. 

seal  of,  how  proved,  35.     . 

sealed  instruments  of,  when  admissible  without 
further  proof.  35. 

corporate  acceptance  of  bond  or  deed,  37. 

contract  of,  ambiguous  as  to  party,  37. 

effect  of  imprint  of  corporate  title  on  paper,  37. 

torts  by,  37. 

false  representations  by  meeting,  37. 

acceptance  of  false  communication  of  officer  or 
servant,  38. 

vote  "accepting"  report  of  committee,  38. 

fraud  of  directors  or  managing  agent  under  gen- 
eral allegation,  38. 

liability  for  wropgs  by  officers  or  agents,  38. 

assault  by  servant,  646. 

regulation*  justifying  assault,  650. 

Hireling  and  by-laws,  38. 

entrv  in  books  of,  to  show  regularity  of  meet- 
ing., 38. 

necessity  of  due  notice  of  meetings,  38  n 

—when  presumed,  39  ». 


CORPORATIONS—  Continued. 

proof  of  act  of  corporate  board  or  committee, 
39. 

acts  when  proved  by  parol,  39. 

in  absence  of  books,  clear  proof  of,  necessary, 
S9n. 

by-laws  of  private,  not  judicially  noticed,  40. 

proof  of  by-laws,  40. 

authority  of  officers,  agents  and  members,  40. 

parol  proof  of  who  are  stockholders.  40  n.,  768. 

authority  of  agent  by  unsealed  vote,  41. 

notice  to  one  dealing,  of  limits  of  authority  in 
by-laws,  41  n. 

implied  scope  of  authority  of  officer  or  agent, 
41. 

implied  power  of  trading   company  to    make 
bills  and  notes,  42. 

authority  implied  in  title  of  office,  42. 

authority  of  agent  to  disseize,  42  n. 

testimony  of  officers  or  agents  10  show  author- 
ity, 43. 

allegation  of  express  parol  authority,  how  dis- 
proved, 43. 

ratification  by,  how  proved,  43. 

evidence  of  authority  of  officer  from  usage, 
402. 

charter  and  by-laws,  competent  as  to  agency, 
491. 

evidence  of  cashier's  authority,  455. 

authority  of  insurance  agents,  480. 

authority  of  servant  of  carrier,  580. 

regulations  of  carrier,  581 . 

admissions  and  declarations  of  members  of, 
when  incompetent,  43. 

admissions  and  declarations  of  officers  author- 
ized to  speak,  44,  492. 

— when  part  of  res  (/esta,  44. 

— of  incorporators  before  incorporation,  45. 

— of  previous,  when  competent  against  consoli- 
dated corporation,  45. 

notice  to,  how  proved,  45. 

books  and  papers  of,  46,  768. 

primariness  of  statutory  record  of,  46. 

competency  of  corporate  record,  for  or  against, 
40. 

against  whom  corporate  acts  competent,  48. 

primariness  of  minutes  or  records  of,  48. 

authentication  of  corporate  books  when  pro- 
duced, 49. 

rough  minutes,  when  competent  and  primary,  50. 

competency  of  copies,  50. 

official  reports  to,  when  competent  against,  51. 

copy  of  entries  in  books  of  foreign,  21">  ". 

notice  to  produce  books  and  papers  of,  51. 

— foundation  for  secondary  evidence  of,  51. 

parol  evidence  to  vary  corporate  minutes.  51. 

minutes  of  agents  of,  when  conclusive  on,  51. 

competency  of  accounts  and   business  entries 
of,  52. 

obligation  to  compensate  officers  and  promo- 
ters, 380. 

transactions  of  defendant  in  action  by  receiver 
of,  232. 

liability  of  stockholders,  etc.,  768. 

liability  of  trustees.  769. 

CORRESPONDENCE,  presumption  as  to  deliv- 
ery, 434. 

contracts  made  by,  292. 

parol  to  chow  terms  of  contract  made  by,  292. 

of  married  woman  with  her  business  agent,  as 
showing  her  title.  170. 

between  principal  and  factor,  559. 

in  breach  of  marriage,  promise,  tit". 

of  husband  and  wife  as  evidence  in  crim.  con., 
685. 

of  testator  to  show  mental  condition,  115. 

designation  of  society  in,  to  Miow  usage.  143. 

ion  of  as  presumptive  of  death.  ?l.7ii. 
COSTS,  judgment  paid  us  proof  of,  in  actiou  for 
money  paid,  •-.'"-' 

notice  of  t-uitto  make  judgment  conclusive  aa 
to,  205. 

action  to  recover,  378. 

COURSE    OP    BUSINESS,  acts  of   officers   01 
agents  in,  32. 

— to  perform  act  done  in,  42. 


84S 


GENERAL  INDEX. 


COURSE  OF  BUSINESS—  Continued. 

presumption  of  validity  of  dealings  of  corpora- 
tion, 32. 

authority  of  officer  making  sale  out  of,  35. 

of  officers  and  agents  to  show  authority,  41. 

power  of  corporate  officers,  42,  43, 44. 

writings  in,  «w  foundation  for  opinion  of  wit- 
iii-ss  as  to  signatures,  113. 

charging  separate  estate  of  married  woman  by 
contracts  in,  184. 

inference  of  agency  from,  190. 

deceit  or  fraud  by  one  partner  competent  against 
others,  217. 

entries  by  deceased  partner  in,  225  n. 

to  rebut  presumption  against,  partner  from  en- 
tries in  partnership  books,  230. 

charges  in,  to  show  payments,  not  loans,  246. 

In  accepting  bills  to  explain  factor's  possession 
of  them,  259  n. 

as  to  daily  returns  and  payments  by  agent  with- 
out passing  vouchers,  282. 

as  to  copying  and  mailing  letters,  289. 

declarations  in,  to  show  foreign  market  value, 
309. 

price  current  issued  in,  as  proof  of  value,  309. 

knowledge  of  witness  to  value  based  ou  letters, 
etc.,  received  in,  310. 

to  show  intent  as  to  passing  of  title  to  goods 
sold,  318. 

memoranda  made  by  a  third  person  in  the 
usual,  322. 

admissibility  of  party's  books  kept  in,  323. 

commissions  in,  as  usury,  794. 

payment  to  agent  in,  800. 

COURT  of  sister   state,  actions    on   judgments 
of,  541. 

of  record,  what  is,  541. 

of  general  and  special  jurisdiction,  545,  etc. 
COUPON  BONDS,  actions  on,  451. 
COUNSEL,  action  for  services,  377. 

privileged  communications  to,  501. 

advice  of,  655. 

COUNTERCLAIMS,  pleading  and  proof  of,  835. 
COUNTERPARTS,  proof  of  contract  in,  523. 

of  negotiable  paper,  421. 
COVENANT,  binding  though  not  signed,  385. 

implied  in  sale  of  realty,  727. 

—in  lease,  526. 

actions  on,  504,  etc. 

—covenants  for  title,  519- 

to  repair,  532. 

parol  to  explain,  726. 

alterations  in,  696. 

COVERTURE,  alleging,  in   action  by  married 
woman,  180. 

— in  action  against  her,  181. 

decree  of  probate,  how  far  conclusive  as  to  tes- 
tator's, 110. 

evidence  of.    (See  MARRIAGE.) 
CREDIT,  in  account,  to  release  advancement, 
154. 

in  contract  of  public  officer,  195. 

to  married  woman  for  necessaries,  to  charge  sep- 
arate estate,  185. 

what  necessary,  to  show  ratification  by  married 
woman,  185. 

in  account  with  a  third  person,  for  money  re- 
ceived, 277. 

circumstantial  evidence  to  determine  to  which 
of  several  it  was  given,  240,  265,  302,  360, 
374,  438. 

— in  actions  against  partners.  215. 

— on  purchase  of  goods  by  agent,  333. 

when  presumed  given  to  principal  and  not  the 
agent,  300. 

to  agent  of  undisclosed  principal,  300. 

given  exclusively  to  agent  to  render  him  liable, 
301. 

to  factor  for  foreign  disclosed  principal,  302. 

usage  of  giving  notes,  competent  to  show,  313. 

deceit  in  obtaining,  246,  273. 

decree  of  enjoyed,  how  proved,  617. 
CREDITOR,  assent  of,  to  assignment  for  his  bene- 
fit, 10. 

when  not  assignee,  within  rule  excluding  inter- 
ested witness,  65  n. 


CREDITOR—  Continued 

books  as  proof  of  organization  of  corporation  in 
favor  of,  47. 

competency  of  resolution  of  corporation  in  fa- 
vor of,  48. 

extrinsic  evidence  as  to  bequest  to,  147. 

avoiding  purchase  by  parent  in  name  of  child, 
153. 

presumptions  as  to  transfers  of  property  to  wife 
in  fraud  of,  164  n. 

silence  of  wife,  when  not  estoppel  in  favor  of 
husband's.  167. 

proceeds  of  wife's  estate  hers  against  husband's 
creditors,  168. 

wife's  means,  in  question  of  consideration 
against,  170. 

when  deed  to  wife  raises  a  resulting  trust  for 
husband's,  171. 

burden  of  proof  to  show  fraudulent  possession 
of  wife,  171. 

ignorance  of  separate  estate  of  married  woman, 
183  n. 

participation  in  profits  by,  212  n. 

knowledge  by,  of  stipulation  that  one  partici- 
pating in  profits  should  not  be  liable  to, 
211  n. 

notice  of  dissolution  of  partnership  to,  224. 

proof,  in  accounting  between  partners,  of  plain- 
tiff's being,  226. 

application  of  payment  by,  811. 

composition  with,  816. 
CREDITORS'  ACTIONS,  736,  etc. 

against  executors  and  administrators,  54. 

against  member  of  joint  stock  company,  769. 
CRIES,  599  n. 
CRIME,  cogency  of  evidence  to  prove  charge  of, 

494. 
CRIMINAL  CONVERSATION,  actions  for,  684, 

CROSS-EXAMINATION,  testing  knowledge  of 

witness,  390. 

as  to  personal  knowledge  of  death.  72. 
as  to  general  repute  of  marriage,  81. 
notwithstanding  privilege,  620. 
when  waiver  of  motion  to  strike  out  testimony, 

66. 
CROP,  parol,  to  explain  meaning  of,  in  contract, 

305. 

replevin  for,  624. 

CRUELTY,  as  ground  for  divorce,  746. 
CURABLENESS  of  injury,  6oO. 
CURTESY,  title  by,  708. 
ancestor's  seizin  in  fact  necessary  to  establish, 

157. 

CUSTOM,  or  usage,  to  explain  lease,  525. 
DAMAGES,  admissions  and  declarations  of  de- 
faulted joint  defendant  in  tort,  on  measure 
of,  187. 
judgment,  when  evidence  of  amount  of,  257, 

282. 

object  of  contract  as  affecting,  338. 
in  action  for  officers'  breach  of  duty,  198. 
recoupment  in  action  on  sale,  335. 
for  injury  to  wife  when,  belong  to  husband,  181. 
in  counter-claim,  835.    (See  also  the  various  AC- 

DANGEROUS  CHARACTER  of  animals,  645. 
DATE  of  assignment,  how  proved,  2. 

of  receipt  by  assignor,  not  presumptive  of  time 
it  was  given,  14. 

of  statute,  when  not  appearing  in  certificate,  21. 

of  incorporation,  materiality  and  proof  of,  30, 
31. 

entries  in  corporate  records,  when  presumptive- 
ly made  on  their,  49. 

presumptions  of  date  of  death,  73,  77. 

—from  loss  of  vessel  never  heard  from,  77  n. 

of  death  or  burial  l>y  registries,  97,  98. 

of  death  engraved  on  ring,  93. 

of  birth,  shown  by  registry  of  baptism,  86. 

—by  registry  of  birth,  97,  98. 

— by  physician's  testimony  or  account,  87. 

— by  testimony  of  parents.  89. 

of  marriage  shown  by  registry,  80,  97,  98. 

declaration  when  incompetent  as  hearsay  as  to 
facts  of  pedigree,  91. 


GENERAL  INDEX. 


849 


DATE—  Continued. 

of  burial  shown  by  registries,  98. 

of  ancient  will,  competency  of,  as  to  its  age, 
128  n. 

affixed  to  alteration  in  will,  prior  to  that  of  will, 
184. 

extrinsic  evidence  to  correct  in  will,  135. 

evidence  in  respect  to,  in  order  to  charge  part- 
ner, 212. 

of  payment  shown  by  letters  of  agent  and  en- 
tries in  account!*,  2fi5. 

— by  indorsements,  825. 

of  order  for  goods,  when  presumptive  of  time 
it  was  written,  291. 

of  negotiable  paper,  how  proved,  409. 

of  indorsement  of  negotiable  paper,  445. 

presumption  as  to  date  of  indorsement,  413,  416. 

— of  irregular  indorsement,  439. 

of  items  in  account  stated,  459. 

of  award,  467. 

of  guaranty  not  conclusive,  472. 

of  sealed  instrument,  508. 

of  deed,  694. 

of  passage  ticket,  578. 

of  lease,  527. 

of  delivery  of  lease,  how  proved,  527. 

of  judgment,  538. 

of  process,  to  show  commencement  of   action 
within  statute  period,  822. 

of  writings  more  than  thirty  years  old,  when 
presumed  correct,  95. 

of  written  instrument,  parol  to  show  erroneous, 
295. 

memoranda  refreshing  memory  as  to,  321. 

account  kept  by  party,  as  evidence  of,  326. 

as  showing  place  for  directing  protest,  431. 
DAY,  fraction*  of,  538  note. 
DAY'S  WORK,  what  is,  and  how  proved,  365. 
"  DAYS,"  meaning  of,  519. 
DEAF  AND  DUMB  PERSON,  testamentary  ca- 
pacity of,  115. 

DEATH,  a  jurisdictional  fact  for  issuing  letters, 
57. 

prima  facie  evidence  of,  when  sufficient,  64. 

direct  testimony  to,  72. 

proved  by  registry  of,  or  of  burial,  72,  97. 

date  of,  in  unauthorized  registry  not  incompe- 
tent, 98. 

presumptions-of,  and  of  time  of,  73. 

— from  voyage  and  special  peril,  74. 

— from  seven  years'  absence,  75. 

— what  inquiry  necessary,  75. 

rebutting  presumption  of,  from  absence,  76. 

time  of,  presumed,  77. 

survivorship  in  common  casualty,  78. 

of  husb-tnd  or  wife,  presumption  of,  83. 

without  issue,  when  to  be  proved,  85. 

what  deaths  to  be  proved  by  one  claiming-  title 
by  collateral  descent,  85. 

under  age,  not  presumptive  of  no  issue,  85. 

slight  proof  of,  w ithout  issue,  86  n. 

proved  by  hearsay,  91. 

— except  as  to  place  of,  91  n. 

entries  of,  in  family  record.  93. 

proof  by  general  reputation,  94. 

repute  among  acquaintance,  newspaper  notice, 
etc.,  95,  96. 

competency  of  letters   of    administration   to 
prove,  100. 

notice  unnecessary,  of   dissolution  of  partner- 
ship caused  by,  222. 

of  partner,  proof  of,  in  action  by  survivor,  224. 

—against  survivor,  225. 

of  person  having  made  memoranda,  in  usual 
course  of  business,  322. 

terminal  ing  authority  of  agent  to  receive  pay- 
ment, (-'OK 

fa  case  of  life  insurance,  501. 

action  for  causing.  601. 

—by  intoxication, 780. 

iJKBT.  .•issiL'iniii'iit,  of,  not  presumed  from  that  of 
collateral.  :i. 

revival  by  admissions  and  declarations  of  one  of 
several  co-representatives,  59. 

— oy  payment  by  same,  59  n. 

bequest  of,  to  creditor,  147. 

54 


DEBT—  Continued. 

of  child  to  parent,  as  an  advancement,  151. 

declarations  of  donor  to  show  advancement  a. 
Uift. 

of  ancestor,  action  to  charge  heir,  next  of  kin, 
etc.,  161. 

admissions,  of  wife  as  to  ante-nuptial,  177. 

liability  of  married  woman's  separate  estate,  183. 

assumption  of,  by  incoming  partner,  213. 

by  promise  of  third  person,  385.  386. 

collection  of  by  partner  after  dissolution,  218. 

barred  by  statute,  and  afterward  acknowledged, 
823. 

— by  partner  after  dissolution,  219  n. 

implied  promise  to  pay,  272. 

statement  of  contents  of  evidence  of,  to  prove 
consideration  of  contract  of  sale,  30ti. 

payment  of,  by  note,  etc.,  of  debtor  or  third 
person,  804. 

payment  shown  by  circumstantial  and  corrob- 
orative evidence,  810. 

— by  surrender  of  evidence  of,  260. 

extinguishment  from  lapse  of  time,  812. 

accord  and  satisfaction  of,  814. 

account  stated,  815. 

compromise  and  composition  of,  815. 

new  promise  or  acknowledgment  of,  824. 
DECANTERS,  evidence  of  liquor  traffic,  774. 
DECEIT  or  fraud,  actions  for,  614,  etc. 

—for  false  warranty,  339. 

by  one  partner  competent  against  others,  217. 

by  testator  as  to  his  will,  131. 

in  procuring  execution  of  contract,  787. 

in  obtaining  credit,  allegation  of,  in  action  for 
money  received,  273. 

as  defense  in  action  on  sale,  336. 

judgment  in  action  for,  as  bar  to  action  on  war- 
ranty, a=>o. 

DECLARATIONS  distinguished  from  transac- 
tions, 13. 

entry  of  individual  in  diary  a  mere,  47  n. 

of  assignor  of  non-negotiable  security,  8. 

—for  and  against  assignee,  11,12. 

temporary  assignee  incompetent,  11  n. 

of  assignor,  offer  to  give,  now  made,  13. 

— admissibility  determined  by  judge,  13. 

of  assignor  and  assignee  in  case  of  conspiracy, 
14. 

of  officer  as  to  meaning  of  vote,  52. 

as  to  pedigree,  92. 

of  custodian  of  a  will,  113. 

of  testator  before  and  after  execution  of  will 
to  show  capacity,  115. 

of  testators,  to  show  susceptibility  to  fraud  and 
undue  influence,  122. 

to  show  revocation  of  will,  124. 

—as  to  lost  or  destroyed  will,  127. 

— when  incompetent  in  absence  of  ambiguity, 
146. 

—to  show  intent,  146  n. 

— explaining  ambiguity  as  to  which  of  two  par- 
cels, 146. 

admissible  to  rebut  resumption  of  satisfaction 
of  debt  by  bequest,  148. 

— as  to  cumulative  gifts,  when  incompetent,  148. 

— as  to  ademption  of  legacy,  149. 

— time  of,  bearing  on  intention,  150. 

of  intent  to  constitute  au  advancement,  153 n. 

of  ancestor,  heir,  etc.,  156. 

of  successors,  representatives  and  beneficiaries, 

use. 

election  to  accept  beneficial  devise  in  absence  of, 
157. 

of  third  persons  to  show  possession  of  land 
under  a  will,  159. 

to  prove  marriage,  164. 

of  husband  on  delivery  of  wife's  property,  170. 

— on  giving  money  to  wife,  or  receiving  securi- 
ties for  her,  172. 

—to  establish  trust  in  favor  of  wife.  174. 

— to  show  receipt  of  payment  by  wife  for  use  of 
separate  estate,  184  n. 

of  wife  that  purchase  or  credit  was  for  herself, 
178. 

of  married  woman  on  executing  written  con* 
tract,  188  n. 


850 


GENERAL  INDEX. 


DECLARATIONS—  Continued. 

preliminary  question  &a  to  connection  of  par- 
tics  to  admit,  191. 

of  one  joint  debtor  against  others,  187. 

of  partners  to  prove  partnership,  204,  206,  226. 

— to  show  to  whom  credit  was  given,  215. 

of  secret  or  dormant  partner,  211. 

to  show  one  a  partner,  £21. 

— clerk,  not  partner,  220  n. 

denying    partnership,   when  not  disproof     of 
liability,  209. 

that  they  "  bought  it  in  partnership,"  insuffi- 
cient proof  of  partnership,  210  n. 

of  intent  to  make  request  iu  action  for  money 
lent,  241. 

to  prove  a  trust,  233,  234  n. 

of  agent  to  prove  agency,  276. 

to  show  agency  and  scope  of  authority,  299. 

— to  request  loan,  241. 

to  show  embezzlement,  281 

of  officer  or  clerk  of  a  bank  as  to  accounts,  279. 

to  show  payment  under  duress,  271. 

against  interest,  deceased,  payee's  receipt  as, 
260. 

to  prove  tender,  816. 

of  inability  as  to  receiving,  paying  or  delivery, 
to  dispense  with  tender,  316. 

of  ownership  by  one  in  possession,  in  question 
of  title,  286. 

to  show  foreign  market  valne,  309. 

of  auctioneer,  not  to  vary  terms  of  sale,  328. 

of  party  to  explain  warranty,  345  n. 

of  feelings,  502. 

of  suffering,  599. 

of  emotions,  677. 

characterizing  purpose,  636. 

characterizing  possession,  710. 

of  husband  and  wife  iu  crim.  cou.,  685. 

of  surveyors,  699. 

of  ancient  persons,  700. 

as  to  title  of  vendor,  727. 

in  actions  for  assault,  649. 

of  workman,  infringing  patent,  759. 

as  to  contract  in  action  for  specific  performance, 
730. 

of  assignor  of  patents,  760. 

of  grantor  to  show  mistake  in  deed,  788. 

of  parties  to  show  intent  to  make  illegal  con- 
tract, i'90. 

of  creditor  as  to  part  payment,  808. 

to  show  application  of  payment  by  debtor,  811. 

of  trust  to  show  statute  of  limitations  had  not 
attached,  822. 

of  conspirators  or  confederates,  190. 

of  officer  or  agent,  when  government  not  bound 
by,  195. 

as  part  of  res  gestce,  326. 

— as  to  past  act,  45. 

— of  testator  at  execution  of  will,  112. 

— as  to  check  being  for  a  payment  or  loan,  245  n. 

— as  to  suretyship,  255. 

— as  to  fund  from  which  payment  was  made, 
264. 

— as  to  payment  by  depositor  or  payer  of  money, 
275. 

— of  depositor  at  time  of  deposit,  278. 

— as  to  whom  credit  was  given,  303. 

— as  to  intent  in  passing  of  title,  318. 

— as  to  title  of  married  woman,  185. 

— as  to  receipt  of  goods,  319. 

— entries  of  dayment,  799. 

DECREE,  foreign,  against  executor  or  adminis- 
trator, effect  on  ancillary  representative,  bO. 

against  a  married  woman,  effect  of,  168. 

to  prove  appointment  of  receiver,  231. 

proof  of  satisfaction  of,  260  n. 
•    and  deed  pursuant  to  it,  701. 
DEED,  when  presumed,  709. 

how  proved,  693. 

title  of  grantor,  705. 

presumption  of  grantor's  knowledge  of  contents 
of{  788. 

of  assignment,  primariness  of,  9. 

as  proof  of  assignee's  authority  to  sue,  9. 

of  corporation,  when  presumed  duly  executed, 


DEED—  Continued. 

when  seal  sufficient  proof  of  delivery  of  corpor- 
ate, 36. 

misnomtT  of  corporation  in,  31. 

parol  to  prove  presentation  to  and  approval  by 
corporate  board,  37. 

—authority  of  agent  of  corporation  to  execute,  36. 

corporate  acceptance  of,  87. 

when  heir  not  excluded  from  being  witness  in 
action  to  set  aside.  63. 

as  hearsay  of  facts  of  family  history,  93-95. 

description  in,  to  show  intent  of  residence,  108. 

of  real  property,  advancement  by,  152. 

consideration  of,  to  show  value  of  an  advance- 
ment, 156. 

title  by,  requires  assent  of  successor  in  interest, 
157. 

declarations  to  show  time  or  character  of  deliv- 
ery of,  158. 

between  third  persons  of  adjoining  land  to  show 
title,  159  n. 

to  married  woman,  parol  to  explain,  169. 

to  wife  of  property  paid  for  by  husband,  effect 
of,  171. 

to  husband   improperly  obtained   with   wife's 
means,  171. 

of  wife,  authority  of  husband  to  deliver,  182  n. 

impeachment  of  married  woman's  acknowledg- 
ment of,  175  n. 

nnder  private  seal  of  officer,  when  presumptive- 
ly in  official  capacity,  195. 

of  partner  in  firm  name,  effect  of,  216. 

—parol  to  explain,  217. 

agreement  to  execute,  as  constituting  partner- 
ship, 227  n. 

void  for  adverse  possession,  710. 
DEFAULT,  foreclosure  of  mortgage,  720. 
DEFEASANCE,  oral  defeasance  of  written  agree- 
ment, 412,722. 

DEFECT,  notice  of,  in  actions  for  negligence,  591. 
DEFENCES  and  counterclaims  distinguished,  835. 

generally,  786,  etc. 

against  holders  of  commercial  paper,  440. 
DEGREE,  books  of  college  to  prove  professional, 

47. 
DELA  V,  actions  for,  against  common  carrier,  568. 

excuses  for,  in  divorce,  74(5. 
DELIVERY,    assignment   of   uncanceled    nego- 
tiable paper  by,  3. 

of  assignment,  6. 

of  contract  between  vendor  and  purchaser,  726. 

when  corporate  seal  sufficient  proof  of,  36. 

of  gift  causa  mortis,  declarations  of  decedent  as 
to,  60. 

— to  husband  and  wife,  intent  as  to  which,  170. 

of  money,  inaction  for  money  lent,  239. 

— presumed  payment  of  an  obligation,  not  aloan, 
243,  799. 

of  chattels,  as  an  advancement,  154. 

of  checks  to  show  payment,  803. 

of  property,  payment  by,  80(5. 

of  new  notes   iu  composition  with   creditors, 
816. 

of  release,  when  presumed,  817. 

of  sealed  instrument,  507. 

of  lease,  524,527. 

of  deed,  694. 

— parol  declarations  to  show  time  or  character 
of,  158. 

of  wife's  deed  by  husband,  authority  for,  182  n. 

failure  to  prove,  in  action  for  price  of  goods,  286. 

ordinary  sale  by,  237. 

delivery  to  satisfy  the  statute  of  frauds,  292,  318. 

of  memorandum  of  sale,  293. 

of  written  instrument,  parol  to  show  want  of 
due,  294  n. 

of  a  bill  of  the  goods,  effect  of,  as  to  price,  306, 

and  payment,  when  presumed  concurrent,  313. 

or  offer  o I  goods,  when  and  how  shown,  314. 

and  acceptance  of  labels  for  liquor  bottles,  when 
evidence  of  acceptance  of  all,  319. 

account  kept  by  party  as  evidence  of,  326. 

of  goods,  time  and  place  of,  312. 

—under  special  contract  different  from  one  al- 
leged, 332. 

on  bo,rd  ship,  498. 


GENERAL  INDEX. 


851 


DELIVERY—  Continued. 

plaintiff's  readiness  for,  in  action  for  non-ac- 
ceptance, 337. 

action  against  seller  for  non-delivery,  337. 

readiness  of  buyer  to  perform,  in  action  for  non- 
delivery, 338 

destruction  ol  thing  sold,  to  excuse,  339. 

of  negotiable  paper,  404,  449. 

of  notice,  presumed  from  ordinary  course,  433. 

of  policy,  477,  478,  etc. 

to  common  carrier,  563. 

by  carrier,  576. 

to  drayman,  567. 

of  instrument  after  performance  of  contract, 

575. 

DEMAND,  excuse  for  omitting  must  be  pleaded, 
435. 

on  public  officer,  196. 

on  or  by  firm,  219. 

on  partner  after  dissolution,  220. 

before  suit  against  trustee,  234. 

retaining  money  obtained  by  agent  after,  242. 

on  non-payment,  in  action  for  money  paid,  258; 

—of  check.  244. 

—of  negotiable  paper,  419, 422. 

to  sustain  action  for  money  paid,  265. 

before  action  for  money  received,  278,  281. 

and  refusal,  when  necessary  before  action  on 
sale,  330. 

for  interest  on  sale  from  time  of,  draft  equiva- 
lent to,  331. 

by  buyer,  when  unnecessary  in  action  for  non- 
delivery, 338. 

of  rent  in  action  on  lease,  532. 

in  case  of  bailment,  556. 

as  evidence  of  negligence,  571. 

as  evidence  of  conversion,  626. 

in  action  of  replevin,  690. 

and  default  on  foreclosure  of  mortgage,  720. 

of  performance  between  vendor  ana  purchaser, 
728. 

oral  or  in  writing,  627. 
DEMEANOR  of  injured  person,  599. 
DEMURRAGE,  actions  for,  518. 
DEPOSIT,  certificate  of,  in  action  against  bank 

for  money  received,  277. 

DEPOSITIONS  to  prove  books  of  foreign  corpo- 
ration, 50. 

to  take  testimony  of  interested  witness,  63  n. 

of  decedent,  effect  of  reading,  70  re. 

•when  not  competent,    as  hearsay  of  facts  of 

family  history,  94,  96  n. 
DESCENT,  title  by,  707. 
DESCRIPTION  in  will,  of  person,  138,  139. 

— fitting  one,  coupled  with  name  fitting  another, 
141. 

— applicable  in  part  to  different  pieces  of  prop- 
erty, 143. 

— of  property,  extrinsic  evidence  to  reject  false, 
144,  145  n. 

explanation  of  ambiguity  as  to  which  of  two 
parcels,  145,  146. 

usage   as   to   boundaries,    when   incompetent, 
146  n. 

of  lands  in  a  deed,  697,  699,  etc. 

of  goods,  extrinsic  evidence  to  show,  303. 
DESIGNATION,  ambiguous  ill  lease,  527. 

of  invention,  763. 

DESTRUCTION  of   will,  when  presumed,  124, 
127. 

of  articles  of  copartnership  by  partner,  226  n. 

of  thing  sold,  to  excuse  delivery,  339. 

of  negotiable  paper  sued  on,  390. 

presumed  from  absence,  499. 

of  leased  premises,  532. 
DETECTIVES  as  witness,  747. 
DETERMINATION  of  contlicting  claims,  717. 
DEVISE,  title  by,  707. 

prenuaptton  of  acceptance  of  beneficial,  157. 
DIAGRAMS  and  maps,  699. 
DILIGENCE  in  demand  of  negotiable  paper,  425. 

in  charging  indorwr,  etc.,  425-432,  etc. 

in  mailing  notice,  433. 

of  agent,  now  proved,  559. 

in  discovering  fraud,  733. 
DIPLOMA,  how  proved  by  physician,  382. 


DIRECTORS,  management  of  business  by,  when 

proof  of  user,  28. 
how  proved  to  be,  769. 
compensation  of,  381. 

Dill  I •;<  T(  i  It  V,  not  evidence  of  address,  432. 
DISAPPEARANCE,  presumption  of  death  by,  74. 
DISCHARGE  of  advancement  by  cancellation  of 

entry  in  account  or  credit,  154. 
of  private  debt  of  partner  by  firm  obligation  or 

funds,  222. 
before  maturity  to  bar  action  on  bill  or  note, 

257. 

of  indorsers  by  neglect,  246. 
of  pre-existing  liability,  payment  in,  200. 
of   plaintiff,    when    admissible   in   action   for 

wages,  358. 

of  contract  by  cancellation  of  instrument,  408. 
of  surety,  by  extending  time,  445. 
in  bankruptcy.  819. 
—impeachment  of,  820. 
in  insolvency,  820. 
new  promise  to  rebut,  821. 
DISCLAIMER  of  beneficial  devise,  157. 

of  title,  parol  declarations  to  show,  158. 
DISEASE,  in  life  insurance,  501. 

evidence  of  adultery,  744. 
DISSENT  by  partner  from  entries  in  partnership 

books  after  dissolution,  230. 
DISTANCE  to  rebut  presumption  against  partner 

from  entries  in  partnership  books,  230. 
forfeiture  of,  784. 

DISTRESS  of  person,  how  proved,  599. 
DISTRICT  COURT   OF   N.  Y.  CITY,  proving 

judgment  of,  541. 
DIVERSION  of  negotiable  paper  must  be  alleged, 

442. 

of  accommodation  paper,  443. 
DIVORCE,  actions  for,  743.  etc. 
competency  of  judgment  for,  101. 
primariness  of  decree  of,  179. 
pleading  statute  of  limitations  as  to,  822  n. 
DOCKET  of  justices'  judgment,  540. 
DOCKETING,  in  actions  on  judgment,  539. 
DOCUMENTS,  issuing,  receiving,  or  acting  upon, 

when  evidence  of  user.  28. 

testimony  to  appearance  of  for  purpose  of  em- 
bodying description  in  record,  397. 
DOGS,  injuries  by,  045. 
DOMICILE,  nature  of  the  question  of,  103. 
national  character  and,  102. 
presumptions  and  material  facts,  103. 
rebuttal  of  evidence  of  residence  to  show,  103. 
change  of,  105. 

naturalization,  to  show  change  of,  106. 
effect  of  intent  in  determining,  106. 
evidence  of  residence  and  of  intent,  107. 
as  to  title  and  transactions  of  husband  and  wife, 

164. 
effect  of,  on  jurisdiction  for  issuing  letters  of 

administration,  57. 

DOWER,  ancestor's  seizin  in  law,  sufficient  to  es- 
tablish, 157. 

provision  in  will  in  lieu  of,  157. 
ejectment  for,  707. 

DRAFT,  of  contract,  when  admissible,  362. 
admissible  under  allegation  of  note,  418. 
DRUNKENNESS,    to    affect    testamentary   ca- 
pacity, 115. 
how  proved,  779. 
action  for  causing,  775,  etc. 
DUE  BILL,  admissible  under  allegation  of  note, 

418. 

actions  on.  454. 

DUPLICATE  contract  of  sale,  288. 
on  face  of  instrument,  explained,  421. 
of  negotiable  paper,  1,1. 
apparent  duplicate  notes  in  notice  of  protest, 

432. 

proof  of  contract  in,  528. 
DURATION  of  life,  602. 
DURESS  to  impeach  contract,  788. 
-  conveyance  by  wife.  K.Y 
in  obtaining  consideration  of  deed  to  husband 

from  wife's  separate  property,  171. 
actions  to  recover  back  money  paid  under,  268, 
270. 


852 


GENERAL  INDEX. 


DURESS-  Continued. 
in  written  instrument,  parol  to  show,  294  n. 
in  negotiable  paper,  4-4:). 
DYING  DECLARATIONS,  587,  712. 

—as  to  legitimacy,  DO  n. 
EARNEST,  when  giving  of,  docs  not  pass  title, 

817. 
EASEMENT,  as  an  incumbrance,  530. 

in  actions  for  nuisance,  640. 
EJECTMENT,  actions  of,  691. 
ELECTION,  returns  of,  749. 
color  of,  to  constitute  color  of  office,  193  n. 
— to  constitute  officer  de facto,  201  n. 
to  office  in  corporation,  769. 
certificate  of,  presumptive  of  title  to  office,  194. 
of  officers,  books  of  municipal  corporation  as 

to,  47. 
of  one  of  two  residences  for   domicile,  when 

insufficient,  107. 
EMBEZZLEMENT  by  agent,  in  action  for  money 

received,  280,  281. 
EMOTIONS,  077. 

in  crim.  con.,  685. 
EMPLOYER,  which  of  several  was  real  employer, 

360. 
EMPLOYMENT,  negligence  in,  592. 

of  unfit  servant,  593. 
ENACTING  CLAUSE,  771. 
ENDORSEMENTS,  secondary  evidence  of,  390. 
as  evidence  of  title,  403. 
as  a  transfer  of  title,  415. 
of  negotiable  paper,  413. 
— legal  objects  of,  414. 
extrinsic  evidence  of  date,  416,  808,  825. 
of  payment  as  admission,  416,  808,  825. 
ENJOYMENT,  actions  on  covenants  for,  520. 
ENTICING  AWAY,  actions  for,  681,  etc. 

good  faith  in,  682. 
ENTRIES  in  course  of  business,  date  presumed 

correct,  14  n. 
copy  of,  50. 

in  corporation  books,  52. 
in  corporate  records,  presumptively  made  on 

their  date,  49. 
^erasures  in,  49. 
in  corporate  accounts,  52. 
—against  defendant  in  action  by  receiver,  232. 
when  unnecessary  to  produce  officer  who  made, 

53. 
mistake  or  neglect  of  secretary  in  not  making, 

52. 

by  physician,  in  register  of  births,  87. 
of  births,  deaths  and  marriages  in  family  Bible 

or  other  book,  93. 
in  register  of  fact  of  family  history,  how  proved, 

97. 

— impeachment  of,  99. 
primariness  of  book  or  paper  to  prove  absence 

of,  99. 

in  hotel  register,  as  to  intent  of  residence,  108. 
of  testator  in  accounts,  to  identify  property, 

144. 

— to  show  intent  as  to  an  advancement,  151. 
referred  to  in  will,  as  showing  advancement,  156. 
by  donor  in  account,  to  show  advancement,  154. 
in  partnership  books,  not  conclusive   of  firm 

transactions,  205. 

when  presumptive  against  partner,  229. 
— competent  against  all  partners,  218. 
— to  prove  partnership,  in  actions  between  part- 
ners, 226. 

of  attorney  in  accounts,  when  competent  in  ac- 
tions between  partners,  226  n. 
by  deceased  partner,  when  presumptive  proof, 

225  n. 

supplementary  oath  of  partner  to,  205. 
as  showing  to  whom  credit  was  given,  619. 
in  creditor's  book  as  to  whom  credit  was  given, 

241,  245  n. 

to  show  to  whom  credit  was  given,  302. 
by  creditor,  to  show  application  of  payment, 

811. 

in  payer's  accounts,  to  show  payment,  808. 
in  bank-book  or  pass-book,  245. 
in  check-book,  241,  259  n. 
for  incidental  purpose,  not  primary  of  loan,  243. 


ENTRIES-  Continued. 

intentional  character  of  false,  to  explain  mo- 
tive and  intent,  281. 

of  copy  of  letter  in  letter  book,  ?90. 

in  shop  books,  373. 

— when  prima  facie  of  price  and  value,  306. 

as  auxiliary  to  oral  testimony,  319. 

as  memorandum  to  refresh  memory,  320. 

made  on  information  received  from  third  per- 
son, 322  n. 

made  by  party  from  memoranda  of  servant,  324. 

by  plaintiff  in  his  books,  as  admission  of  de. 
fendant,  327. 

of  sale  by  broker,  authority  to  make  necessary, 

in   broker's  book  as  constituting  the  contract, 

329. 

of  acts  in  protesting,  etc.,  429. 
admissibihty  after  proving  correctness  of  items, 

461. 

by  principal  adduced  against  surety,  513. 
in  record  of  judgment,  536. 
as  evidence  of  delivery,  564. 
mode  of  proof  against  carrier,  564. 
characterizing  possession,  711. 
as  part  of  res  gestce,  265,  326. 
—of  payment,  245,  799. 
—to  show  payments  instead  of  loans,  245  n. 
— to  show  credit  to  wife,  182. 
in  ejectment,  707. 
EQUITABLE  ESTOPPEL,  need  not  be  pleaded, 

affecting  title  to  land,  713. 
EQUITIES  as  to  commercial  paper,  447. 
ERASURE  in  entries  in  corporate  records,  49. 

as  affecting  credit  of  account  kept  by  party,  325. 

testimony  as  to,  397. 

in  negotiable  paper,  406. 

(And  see  ALTERATIONS.) 
ERROR  in  telegraphic  dispatch,  604. 
ESCAPE,  action  for,  609. 
ESCHEAT,  proof  to  sustain,  86. 
ESCROW,  wrongful  delivery,  448. 

sealed  instrument  delivered  in,  507. 
ESTOPPEL  in  dispensing  with  proof  of  corporate 
existence,  19. 

in  place  of  proof  of  incorporation,  20,  30. 

by  admission  of  incorporation,  28. 

to  sustain  validity  of  corporate  acts,  33. 

against  corporations,  28. 

against  those  dealing  with  corporations,  29. 

against  members  and  subscribers  of  corpora- 
tion, 29. 

liberally  applied  for  and  against  corporations, 

of  stockholder  from  denying  his  title,  768. 

of  directors  of  corporation  from  denying  au- 
thority of  agent,  34. 

conclusiveness  of  minutes  of  corporate  agents 
by,  52. 

— as  proof  of  official  character  of  executors  and 
administrators,  56. 

parol  declarations  of  disclaimer  of  title  consti- 
tuting, 158. 

by  silence  or  acquiescing,  admissions  of  wife, 
166,  167. 

wife  joining  in  deed,  when  not  estopped  from 
showing  intent,  171. 

of  wife  denying  her  acknowledgment,  175  n. 

by  admission  of  one  joint  proniissor,  189  «. 

when  officer  not  estopped  by  return  contrary  to 
fact,  197  n. 

— as  to  ownership  of  property,  200. 

of  officer  as  to  official  character,  198. 

— by  former  judgment,  196. 

by  representation  of  partnership,  220. 

of  trustee  by  receipt  for  money,  235. 

— by  judgments,  237. 

of  borrower  of  money  by  an  agent,  242  n. 

of  defendant  denying  receipt  of  money,  275. 

waiver  of  stipulation  as  to  time  in  contract  of 
sale,  as,  314. 

as  to  genuineness  of  signature,  392. 

as  to  authority  to  sign  or  indorse,  400. 

of  bank  by  cashier's  answer  to  inquiry,  402. 

in  respect  to  indorser's  address,  431. 


GENERAL  INDEX. 


853 


ESTOPPEL—  Continued. 
account  stated,  is  not,  458. 
by  oral  submission  to  arbitration,  466. 
from  relying  on  false  recitals,  479. 
by  preliminary  proofs,  490. 
founded  on  iQence,  510. 
by  recital  in  bond,  513. 
of  tenant,  528. 
in  case  of  attornment,  530. 
of  bailee,  554. 
as  license,  638. 
in  case  of  dower,  707. 
by  deed.  713. 

by  certificate  of  no  usury  In  loan,  792. 
l>y  former  adjudication,  827,  829. 
by  judgment    rendered    upon  one  of  several 

causes  of  action,  828. 
of  licensee  of  patent,  756. 
as  to  title  of  patent,  762. 
between  vendor  and  purchaser,  as  to  title,  727. 
EVICTION,  520. 
of  tenant,  530. 
from  lease,  534. 
of  agents  or  bailees,  554. 
as  proof  of  breach  of  warranty  of  title,  347. 
EXACTION  of  tolls,  771. 
EXCEPTION  in  statute,  772. 
EXCISE  LAW,  actions  for  violation  of,  774. 
EXCLAMATIONS.  599. 
EXCUSE,  what  allegation  admits,  372. 
not  admissible  under  allegation  of  act,  435. 
for  omission  of  demand,  etc.,  not  admissible 

under  allegation  of  demand,  etc.,  423. 
for  non-performance  must  be  pleaded,  511. 
for  breach  of  contract  for  services,  370. 
for  non-presentment  of  commercial  paper,  421. 
EXECUTION,  primariness  of,  to  show  issue  and 

return,  736. 

return  of  in  creditor's  suit,  741. 
—in  actions  against  executor  or  administrator, 

161. 

— to  show  insolvency  of  surviving  partner,  226. 
payment  of,  by  third  person  to  sustain  promise 

to  repay,  251  n. 

not  evidence  of  payment  of  judgment,  539. 
return  of,  to  repel  presumption  of  payment  of 

judgment,  813. 
exemption  from,  607,  633. 
action  for  failure  to  serve  or  collect,  606. 
sale  of  land,  702. 
—as  evidence  of  title,  624. 
wrongful  levy  of,  630. 
of  assignment,  proof  of,  6. 
of  written   instrument,  parol  to  show  want  of 

due,  294  n. 

of  will,  formalities  of,  111. 
when  presumptive  of  testator's  knowledge  of 

contents,  135. 

—clandestine,  to  show  undue  influence,  120. 
— presumption  of  alterations  before,  133. 
— proof  of  alteration  before,  134. 
of  lost  or  destroyed  will,  secondary  evidence  of, 

126. 
proof  that  a  sheet  was  not  in  will  at  time  of, 

135. 
of  negotiable  paper  does  not  include  validity, 

Six). 

EXECUTORS    AND   ADMINISTRATORS,    ac- 
tions by  and  against,  54. 
nature  of  official  character  and  title,  54. 
evidence  of  character  as  such.  403. 
distinction  between  individual  and  official  capa- 
city of,  55  and  n. 

necessity  of  proof  of  title  under  pleadings,  55. 
sufficiency  or  suing  or  being  sued  "  as,"  55. 
appropriate  mode  of  proof  of  official  character 

of,  56. 

effect  of  letters  as  evidence,  56. 
impeaching  letters  of,  57. 

best  and  secondary  evidence  of  authority  of,  58. 
will  without  the  probate,  when  not  competent 

of  right  of,  to  sne,  110. 
extrinsic  evidence  to  show  identity  of  executor 

named.  Kill. 
declarations  and  admissions  of,  against  estate, 

53. 


EXECUTORS  AND  ADMINISTRATORS—  Cont. 

decedent's  declarations  and  admissions,  for  or 
against,  59,  60. 

admissions  and  acts  of,  against  whom  incom- 
petent, 159. 

admissions  of,  as  to  insolvency  in  actions  to 
charge  heir,  161. 

not  prejudiced  by  admissions  of  heir,  l."9. 

bound  by  judgments  against  predecessors  or  de- 
cedent, 60. 

judgment  against,  effect  of  on  heirs  and  devi- 
sees, 160. 

testimony  of,  when  to  be  taken  as  a  whole.  60. 

preliminary  question  of  competency  of  witness 
against,  66. 

testimony  of  interested  persons  against  estate, 
60,63. 

— New  York  rule  as  to,  62. 

who  excluded  from  testifying  in  actions  by  or 
against,  62. 

assignor  or  source  of  title,  when  excluded,  64. 

who  protected  by  exclusion  of  interested  party 
or  witness,  64. 

objecting  to  testimony  of  witness  against,  65. 

striking  out  incompetent  part  of  testimony  for 
or  against,  66. 

what  is  personal  transaction  or  communication 
with  deceased,  f>7. 

—assignor  and  assignee  excluded  from  testifying 
to  personal  transactions  with  testator,  10. 

proof  of  interview  with  deceased,  67. 

witness  not  to  testify  negatively  as  to  interviews 
with  deceased,  67. 

what  indirect  evidence  of  personal  transactions 
with  deceased  excluded,  68. 

effect  of  exclusion  of  transaction  with  deceased, 
69. 

effect  of  objecting  party  testifying  to  transaction 
with  deceased,  69. 

form  of  offer  of  testimony  in  rebuttal  of  trans- 
action with  deceased,  70. 

rule  in  United  States  Courts  as  to  exclusion  of 
transactions  with  deceased.  70. 

when  chargeable  with  interest  from  time  of  pre- 
sumed death,  78. 

of  deceased  partner,  actions  against,  225. 

admissions  and  declarations  of  deceased  partner 
as  to  title  competent  against  his  adminis- 
trator, 225  n. 

tax  collector's  receipt  as  proof  of  payment  of 
taxes  by  administrator,  201  «. 

payment  to,  802. 

service  of  protest  on,  430. 

bond  of,  action  on,  514. 

sale  by  surrogate's  order,  703. 
EXEMPLARY  damages  for  criminal  acts,  781  n. 
EXEMPLIFICATION  of  judgment,  536. 

of  state  grant,  705. 
EXEMPTION  from  execution,  633. 
EXPERTS,  examination  as  to  qualifications,  369. 

cross-examination  as  to  qualifications,  394. 

testimony  of.  when  controll'mi:.  -1!M. 

ground  of  opiniou  called  for  ou  direct  examina* 
tion,  3!)7. 

examined  by  hypothetical  questions,  591. 

in  handwriting,  397. 

qualification  as  to  handwriting,  397. 

as  to  signatures,  501. 

opinion  as  to  seal,  506. 

— as  to  genuineness  of  sismatures  to  will,  113. 

—as  to  cause  of  injury,  571. 

— in  case  of  negligence,  "i^ii. 

— as  to  injured  person.  COO. 

— as  to  quality  and  value.  310.  311. 

mode  of  testifying  to  mental  capacity  of  testatoi 

by,  116. 
'in  language  or  writing,  to  explain  will.  180  n. 

testimony  of,  as  to  alteration  in  will.  134. 
designating  a  particular  tiling  as   "like"  the 

thing  in  controversy.  311. 
as  to  quality  of  article  in  action  on  breach  of 

warranty,  317. 

adjustment  in  insurance.  492. 
to  abbreviated  entrii 
nautical.  500. 
testimony  as  to  damages,  511. 


854 


GENERAL  INDEX. 


EXPERTS—  Con  fin  utd. 

to  prove  usage,  590. 

testimony  of,  as  to  indebtedness  of  judgment 
creditor,  738  n. 

— as  to  liquor,  774. 

— as  to  patents,  760. 

~as  to  trade  mark,  752. 

EXPRESS  COMPANIES,  action  against,  as  com- 
mon carrier*,  563.  etc. 
EXPRESSED  malice,  666. 
EXTENSION  of  patent,  758. 

of  time,  discharging  surety,  445. 

—for  award,  467. 

EXTINGUISHMENT  of  negotiable  paper  by  re- 
newal, 446,  447. 

of  earlier  demand  by  settlement  of  later,  464. 

of  rent  by  taking  sealed  security,  534. 
EXTRA  work,  how  proved,  362. 
FACTORS,  actions  against,  559. 

participation  in  profits  by  212  n. 

— does  not  make  partner,  211  n.  s 

course  of  business  in  accepting  bills  to  explain 
their  possossion  by,  259  n. 

demand  noi  presumed  merely  from  lapse  of  time 
against  foreign,  281. 

of  foreign  principals,  when  personally  liable,  302. 
FAILURE  OF  CONSIDERATION,  441. 

of  negotiable  paper,  448. 

in  sealed  instrument,  511. 
FAILURE  to  mark  patented  article,  765. 

to  serve  or  collect  process.  606. 

to  return  process,  action  for,  610. 
FALSE  IMPRISONMENT,  actions  for,  657,  etc. 

justification  and'initisration,  657. 
FALSE  REPRESENTATIONS,    of   corporation 
by  meeting,  37. 

in  correspondence  of  officers  or  agents,  38. 

by  agent  in  sale  to  his  principal,  334. 

burden  of  showing,  330. 

in  insurance,  492. 

in  negotiation,  525. 

as  ground  of  action,  614,  etc. 

in  actions  between  vendor  and  purchaser,  729. 
FALSE  RETURN,,  action  for,  610. 

conclusiveness  of  return.  200  n. 
FALSE  WARRANTY,  in  insurance,  492. 
FALSITY,  of  libel,  665. 

FAMILY,  consorting  as  a,  to  show  relation  of 
parent  and  child,  87. 

domicile  in  place  of  establishment  of,  104. 

presumption  of  removal  of,  on  intent  of  resi- 
dence, 108. 

constructive  revocation  of  will  by  change  in 
testator's,  126. 

number  of  testator's,  to  show  intent,  136. 

of  testator,  state  of,  when  to  be  shown,  138. 

what  connection  with,  sufficient  to  admit  decla- 
rations as  to  pedigree,  92. 
FAMILY  HISTORY,  hearsay  as  to  facts  of,  90, 91. 

relationship  by  marriage,  dissolved  by  death,  no 
effect  on  declarations  as  to,  91  n. 

competency  of  records  of,  92. 

declarations  made  in  view  of  controversy,  95. 

general  repute  beyond  family,  95. 

best  and  secondary  evidence  of,  96. 

registry  of  facts  of,  97. 

—  not  authorized  by  law,  98. 

—  primariness  of,  99. 

—  impeachment  of,  99. 

judicial  records  showing  facts  of,  100. 

judgments  and  verdicts  to  show  facts  of,  100. 

(&>«  alto  PEDIGREE.) 
FEAR,  of  legal  process,  not  sufficient  for  duress, 

270. 

FEELINGS,  how  proved,  502. 
FEES,  liquidated  by  taxation,  606. 
FELONY,  compounding,  790. 
FICTITIOUS  PERSON,  in  commercial  paper,  399. 

in  bank  check,  453. 

evidence  of  misspelling  of  name,  422  n. 
FILES,  papers  not  necessarily  part  of  record,  538, 

539  n. 

FTLlA'ci,  notice  of  mechanic's  lien,  767. 
FIRE,  a*  excuse  for  bailee,  556. 
FISHERIES,  domicile  of  fisherman,  105  n. 
FIXTURES,  how  proved,  624. 


FIXTURES—  Continued. 
parol  to  explain,  in  contract  between  vendor 

and  purchaser,  726. 

FOOD,  implied  warranty  of  provisions  for,  343. 
FOOT,  in  measurement.  365. 
FORECLOSURE,  of  mortgage,  719. 

—  demand  and  default,  720. 

—  vendor's  lien,  719. 
by  advertisement,  701. 

to  repel  presumption  of  payment,  813. 

authority  for,  none  to  rec.-ive  part  payment,  801. 
FOREIGN  BILLS,  and  notes,  protest  of,  425. 
FOREIGN    CORPORATION.      (See    CORPORA- 
TION.) 
FOREIGNER,  presumption  as  to  knowledge  of 

law,  790. 
FOREIGN  JUDGMENTS,  actions  on,  550. 

as  an  estoppel.  829. 
FOREIGN  LANGUAGE,  interpretation  of  will 

written  in,  132. 
FOREIGN  LAW,  to  be  alleged  and  proved,  790. 

how  proved,  22. 

of  marriage,  85. 

to  prove  a  limited  partnership,  220. 

as  to  license,  358. 

as  to  medium  of  payment,  410. 

as  to  rate  of  interest,  411. 

as  to  negotiable  paper,  411  n.,  418. 

application  of  the  rule  against  varying  writing, 
by  parol,  415. 

as  to  protest,  427. 

as  to  usury,  791. 

as  to  infancy,  burden  of  proving,  796. 
FOREIGN  LICENSE,  presumption  as  to,  358. 
FORFEITURE  of  corporate  existence,  by  mis- 
user  or  non-user,  31. 

of  franchise,  750. 

of  lease,  how  waived,  530. 

proceedings  in  rern.,  for,  783. 
FORGERY,  evidence  as  to  handwriting,  397,  789. 

of  negotiable  paper,  441. 
FORMER  ACQUITTAL  on  charge  of  negligence, 

602. 

FORMER  ADJUDICATION,  general  rules  as  to, 
826. 

form  of,  830. 

record  to  be  produced,  831. 

parol  to  explain  record  of,  833. 

what  questions  were  determined  by,  832. 

what  parties  affected  by,  829. 

in  action  for  breach  of  warranty,  350. 

as  bar  to  action  for  wages,  375. 

under  covenants  fur  title,  519,  etc. 

in  an  action  under  Civil  Damage  Act,  783. 

in  libel,  671 . 

in  actions  for  nuisance,  643. 

impeaching  judgment,  549. 

when  admissible  in  action  for  deceit,  621. 

of  assault,  649. 

as  evidence  of  title  to  land,  713. 

former  recovery  as  merging  the  cause  of  action, 
827.  * 

as  nu  estoppel,  827. 

splitting  caiif-e  of  action,  827. 

what  questions  are  concluded  by,  828. 

construction  of  instrument  by,  828. 

of  what  courts  and  tribunals  an  estoppel,  829. 

by  court  of  exclusive  jurisdiction,  829. 

against  one  of  joint  defendants,  830. 

set-off,  when  not  barred  by,  834. 

rebuttal,  want  of  jurisdiction,  834. 

—fraud,  834. 

—appeal,  or  reversal,  834. 

—new  title,  834. 

FORWARDERS,  actions  against,  560. 
FRANCHISES,  action  to  annul,  750. 

exercise  of,  as  proof  of  de  facto  corporation.  123. 
FRAUD,  cause  of  action  lor,  when  presumptively 
assigned,  3. 

actions  for  damages  by,  614,  etc. 

an  assignment,  when  immaterial,  5. 

in  obtaining  charter,  31. 

of  directors  or  managing  agent,  under  allegation 
of  fraud  of  corporation,  38. 

in  obtaining  letters   of   administration,  when 
ground  for  impeachment,  58. 


GENERAL  INDEX. 


855 


FRAUD—  Continued. 
declarations  of  testator,  when  not  received  as 

statement  of  facts  of,  115. 
in  producing  undue  influence,  120. 
declaration    and  conduct  of  testator  to  show 

susceptibility  to,  122. 
in  obtaining  will,  1S3. 
in  destruction  of  will,  127. 
by  deceit  of  testator  as  to  his  will,  131. 
in  bavin"  words  inserted  in  a  will,  135. 
effect  of  insertion  of  one  name  for  another  by, 

147. 
in  making  advancement,  declarations  of  donor 

as  part  of  res  c/estee,  154  n. 
declarations  of  one  of  several  joint  legatees  or 

devisees  to  show,  159,  ItiO. 
presumptions  of,  in  transfers  of  property   to 

wife,  164  n. 
of  wife  by  silence,  necessary  to  estoppel  in  favor 

of  husband  or  his  creditors,  167. 
to  rebut  presumption  of  intent  of  husband  to 

make  provision  for  wife,  171. 
consideratiou  of  deed  to  husband  from  wife's 

separate  property  obtained  by,  171. 
declarations  of  husband  making  gift,  when  not 

competent  to  establish,  172. 
to  impeach  conveyance  by  wife,  175. 
action  against  married  woman  for,  185. 
to  render  inadmissible  admissions  and  declara- 
tions of  one  in  joint  business  or  liability, 

190. 
presumption    of   innocence  of  public    officer 

charged  with,  199. 
in  purpose  of  forming  a  firm,  211. 
by  one  partner,  competent  against  others,  217. 
in  inducing  new  partner  to  assume  debts,  230  n. 
by  trustee  in  compromising  claim,  when  burden 

of  showing  on  ct-slvi  que  trust,  236. 
parol  to  show  constructive  trust  in  case  of,  237. 
ill  obtaining  credit,  when  proved  as  part  of  res 

gestce,  S46. 

action  to  recover  money  paid  under,  268,  271. 
allegation  of,  in  action  for  money  received,  274. 
in  sale  of  goods,  effect  of  failure  to  prove,  285. 
in  written  instrument,  parol  to  show,  294. 
in  entry  in  book  as  to  whom  credit  was  intended 

to  be  given,  303. 

in  obtaining  signature  of  negotiable  paper,  441. 
—credit  for  goods,  effect  of  time  of  payment,  313. 
in  respect  to  negotiable  paper,  443. 
burden  of  proving,  in  by-bidding,  331. 
warranty  as  means  of,  880. 
in  inducing  acquiescence  in  quality,  343. 
shown  l>y  inadequacy  of  consideration,  405. 
between  principal  and  guarantor,  475. 
in  sealed  instrument,  511. 
a<  ground  for  reformation,  512. 
by  factor,  559. 

proof  of,  by  demand  and  refusal,  571. 
misrepresentation  admissible  under  allegation 

of  mistake,  485. 

against  common  carrier  as  to  value,  575. 
proof  in  replevin,  690. 
in  procuring  execution  of  contract,  787. 
in  account  stated,  815. 

in  composition  and  compromise  of  debt,  816. 
to  avoid  release,  818. 
to  suspend  statute  of  limitations,  823. 
to  rebut  former  adjudication,  834. 
in  infringement  of  trade  mark,  752,  754. 
nsa  ground  'o  divorce,  743. 
in  actions  of  replevin,  690. 
evidence  of,  to  let  in  grantor's  declarations,  740. 
tona.fl'te  purchaser,  715. 
inaction  between  vendor  and  purchaser,  729. 
to  impeach  instrument,  732. 
in  voluntary  settlement  of  insolvent  debtor,  738. 
deficiency  of  land  to  (sustain  inference  of,  729. 
cancellation  of  instrument  for,  732. 
in  obtaining  patent,  Tti.'i 
in  action  by  judgment  creditor,  737.    (See  also 

ST  \TTTK   OP.) 

FRAUDULENT  INTKNT  in  forfeiture  case,  783. 

FRAUnn.KNT  REPRESS  STATIONS  M  to  or- 
ganization or  condition,  primariness  of 
corporate  record,  48  n. 


FREEZING.  571. 

FREIGHT,  declarations  or  admissions  of  railroad 

officers  as  to,  44. 
payment  of,  to  show  delivery  through  carrier, 

816. 

usage  as  to  paying  for  freight  of  goods  sold,  316. 
proof  of  interest  in,  496. 
FULL  FAITH  AND  CREDIT  of  judgments  of 

other  states,  541. 

GAMING  CONTRACT,  optional  contract  for  fu- 
ture sale,  not  presumed  to  be,  314. 
GENERAL  DENIAL,  what  admitted  by,  686. 

in  action  for  services,  373. 
GENERAL  REPUTATION,  to  prove  authority  of 

officer  or  agent,  40. 
of  existence  of  partnership,  210. 
GESTURES,  599. 

GIFT  distinguished  from  sale,  776. 
adequate  proof  of,  4. 

causa  mortis,  subsequent  declarations  of  de- 
ceased as  to  delivery  of,  60. 
in  will,  mistake  in  making,  135. 
— rules  for  deciding  between  claimants  of  same, 

140. 
claims  of  legatee  on  testator  to  show  intent  as 

to,  ambiffuous,  136. 

extrinsic  evidence  in  case  of,  to  charities,  141. 
— to  change  nature  of,  146. 
—as  to  administrative  character  of,  147. 
as  to  presumptively  cumulative,  148. 
to  child,  when  not  an  advancement,  151. 
of  real  property,  when  presumptive  of  an  ad- 
vancement, 152. 

parol  to  show  an  advancement,  154. 
delivery  of  money  or  chattels  to  child  by  parent 

presumptively,  154. 
declarations  of  donor  as  to,  when  competent, 

155. 
by  husband  to  wife,  or  vice  versa,  169,  172,  173, 

174. 

to  married  woman,  intent  as  to,  170. 
circumstances  under  which  made,  to  explain, 

234. 

specific  performance  in  case  of,  731. 
GLASSES,  evidence  of  liquor  business,  774. 

— "  Glassware  in  casks,"  what  is,  485. 
GOOD  FAITH,  621. 
in  transfer  of  negotiable  paper,  449,  450. 
in  false  imprisonment,  658. 
in  act  contrary  to  statute,  773. 
seduction,  etc.,  682. 
shown  by  advice  of  counsel,  655. 
—by  taking  advice,  602,  741. 
GOODS,  grounds  of  action  for  price  of,  285. 
payment  under  duress  to  recover  possession  of, 

271. 

requisite  memorandum  of  sale  of,  292. 
performance  by  seller  before  passing  of  title,  317. 
title  proved  by  bill  of  lading,  487,  572. 
tender  of,  816. 
GOVERNMENT,  when  not  bound  by  declarations 

of  officer  or  agent,  195. 
GRANT,  a  will  not,  during  testator's  lifetime,  131. 

when  pn-siiincd,  709. 
GRANTOR'S  admissions  and  declarations  as  to 

title  to  land,  710,740. 
GROANS,  599. 
GROSS  NEGLIGENCE,  admissible  under  general 

allegation,  583. 
GRATUITOUS  service,  how  proved,  359. 

bailment,  557. 
GUARANTY  by  indorsement  of  non-negotiable 

paper,  438,  4r>7. 
action  on,  471,  etc. 
GUARDIAN  ad  lltem,  on  ground  of  insanity,  to 

show  incapacity  of  witness,  r,;,. 
rule  in  U.  S.  Courts  us  to  testimony  of  transac- 
tions with  ward,  70. 
change  of  domicile  of  ward.  103. 
declaration  of,  that  payment  was  with  ward's 

money,  2t>4  n. 
implied  promise  of.  379. 
<;i  I  I/I'.  <•  itrcncy  of  evidence  to  prove,  494. 
HAND-BILLS,  offering  reward.  :is.-j. 
advertising  loss  of  negotiable  paper,  450. 
libelous,  663. 


856 


GENERAL  INDEX. 


HANDWRITING,  qualification  of  witness  as  to, 
398. 

modes  of  proof,  393,  etc. 

of  recording  officer,  as  authenticating  corporate 
record,  49. 

of  deceased  writer  of  corporate  minutes,  49  n. 

in  family  Bible,  93. 

of  letters  relating  to  facts  of  family  history,  94. 

of  entry  in  renter  authorized  by  law,  97. 

— not  authorized  by  law,  98. 

of  deceased  officer  who  made  entry  in  record  of 
public  nature,  99. 

of  testator,  112. 

of  subscribing  witness,  112,  506. 

of  ancient  document,  709. 

of  ancient  will,  inability  to  prove,  128. 
.  entries  in,  of  deceased  partner,  235  n. 

of  clerk  in  bank-book,  or  pass-book,  245. 

in  order  for  goods,  291. 

comparison  of,  307  n,  396. 

of  memoranda  by  third  person  in  course  of  busi- 
ness, verification  of.  322. 
HEALTH,  incase  of  life  insurance,  501,  502. 
HEALTH  BOARD,  determination  of,  642. 
HEARSAY,  insufficient  proof  of  corporate  seal, 
35. 

testimony  as  to  death  as,  72. 

as  to  place  of  birth  or  death,  51  n. 

certificate  of  marriage  as,  80,  99. 

as  to  one's  being  an  "  heir,"  91  n. 

of  defect  of  heirs,  etc.,  insufficient  to  sustain 
escheat,  86. 

as  to  pedigree,  87. 

as  to  facts  incidental  to  pedigree,  89. 

— grounds  of  receiving  and  weight,  90. 

— by  whom  proved,  91. 

as  to  facts  of  family  history,  90. 

— family  records  as,  92. 

— general  family  repute,  94. 

— repute  beyond  family,  95. 

—declarations  made  in  view  of  controversy,  95. 

—judgments  and  verdicts,  101,  827  n. 

of  general  repute  in  family,  94. 

to  render  entry  in  record  competent,  97  n. 

letters  of  administration  as,  100. 

exclusion  of,  in  interpretation  of  wills,  131. 

declarations  of  testator  as,  115. 

expert's  opinion  of  mental  capacity  of  testator 
from,  117. 

testimony  of  third  person  to  confidential  com- 
munications, 166. 

of  one  party  having  common  interest  or  liabil- 
ity inadmissible  against  other,  188. 

as  to  partnership,  insufficient,  204. 

in  actions  against  partners,  210. 

as  to  boundaries,  700. 

as  to  contract,  in  action  for  specific  perform- 
ance, 730. 
HEIRS,  actions  by  and  against,  71. 

exclusion  of,  as  interested  party  or  witness, 
64  n.,  65  n. 

admissions  of,  raising  presumption  of  payment 
to  ancestor,  69. 

death  of  intermediate,  without  issue,  85. 

presumption  of,  from  persons  dying  intestate, 
85. 

presumption  that  every  one  leaves  an,  86. 

hearsay  of  defect  of,  in  escheat,  86. 

hearsay  as  to  one's  being,  91  n. 

construing  rights  of  tinder  a  will,  131. 

presumptions  and  burden  of  proof  as  to  intesta- 
cy of  ancestor,  109. 

extrinsic  evidence  as  to  bequest  to,  in  advance, 
148. 

title  and  declarations  of,  156. 

declarations  of  ancestor  as  to  title  against,  157. 

admissions  and  nets  of  executor  and  adminis- 
trator against,  159. 

admissions  of,  against  executor,  159. 

effect  of  judgment  against,  on  devisees  or  exec- 
utors or  administrators,  160. 

action  to  charge,  with  ancestor's  debts,  161. 
HIGHWAYS,  action  for  obstructing,  773. 

nuisance,  641. 

HIRE  of  personal  property.  356. 
HIRERS  of  chattels,  actions  against,  356,  560. 


HOLDING  OUT  of  agent,  as  authorized,  41,  400, 
HOLDING  OVER,  raising  estoppel,  529. 

of  corporate  office,  769. 
HOLIDAYS,  519. 

under  contract  for  service,  365. 
HOURS,  in  a  day's  work,  366. 
HUSBAND  AND  WIFE,  actions  by  or  against, 

163. 
burden  of  proof  and  presumptions  of  marriage, 

79. 

public  recognition  of  relation  of,  81. 
presumptions  from  the  marital  relation,  164  n. 
husband  when  treated  as  next  of  kin  to  wife, 

65  n. 

domicile  of  wife  that  of  husband,  105. 
change  of  domicile  by  wife  after  divorce,  106. 
husband's  title.  168. 
wife's  title,  169. 

transfer  by  one  to  the  other,  172. 
tacit  transfers,  173. 
transfers  between,  the  old  rule,  173. 
— the  new  rule,  174. 
foreign  law  applicable  to  title  and  transactions 

of,  164. 

estoppel  of  married  women,  167. 
application  of  wife's  funds,  174. 
of  wife's  conveyance,  174. 
— impeachment  of,  175. 
wife's  separate  business,  175. 
agency  of  one  for  the  other,  or  of  third  person 

for  either,  167. 

wife  presumed  husband's  agent,  777  n. 
judgments  against  married  woman,  effect  of  168. 
deed  by,  as  hearsay  of  facts  of  family  history,  94. 
debt  by  husband,  when  not  advancement  to 

wife,  155  n. 
as  witnesses,  164. 

marital  relation  affects  weight,  but  not  compe- 
tency of,  163  n. 
or  interested  party  or  witness,  when   not  to 

testify,  62  ». 
exclusion  of  wife  as  witness  to  transaction  of 

husband  with  deceased,  68  n. 
admissions  and  declarations  of,  165,  241. 
business  transactions  between,  not  confiden- 
tial communications,  165. 
actions  by  husband,  176. 
— founded  on  marital  right,  176. 
— for  enticing  away  wife,  681. 
for  crim.  con.,  684. 

— defenses  to  actions  by  husband,  176. 
actions  against  husband  founded  on  marital 

obligation,   1<7. 
— on  wife's  agency,  177. 
— defenses  to,  177. 
—for  necessaries,  178.  • 

causes  of  separation,  179. 
actions  by  married  woman,  180. 
— evidence  of  contract,  180. 
—for  tort,  181. 

actions  against  married  woman,  181. 
— pleading  in,  on  contract,  Isl. 
—for  necessaries,  185. 
for  fraud,  185. 
—elements   in  proof  of  contract    of  married 

woman,  181. 

making  of  contract  by  married  woman,  182. 
charging  separate  estate,  Eugiisli  rule,  182. 
—New  York  rule,  183. 

direct  benefit  to  separate  estate  of  wife,  184. 
husband's  coercion  of  wife,  185. 
request  to  advance  money  to  wife   to  sustain 

action  for  money  lent,  240. 
funeral   expenses  of   wife    when  recoverable 

from  him  as  money  paid.  24!). 
HYPOTHETICAL  questions  to  expert  (in  negli- 


gence), 591. 

nm~~ 


IDENTITY,  necessity  of  proof  of,  101. 
of  corporation  named  in  will,  138. 
of  society  in  case  of  charitable  gift,  111. 
of  property  mentioned  in  memorandum  of  auc- 
tion sale,  32S. 

of  names  in  commercial  paper,  398. 
—in  due  bill,  244. 

of  maker  or  drawee  of  commercial  paper,  424. 
of  person  served  with  notice  of  protest,  430. 


GENERAL  INDEX. 


857 


IDENTITY—  Continued 

of  parties  to  judgment,  538 

—to  former  adjudication,  830. 

in  description  of  can  son   of  action  to   show 
former  adjudication,  «:!->. 

of  the  tiling,  in  actions  for  conversion,  622. 

-in  replevin,  (588. 

of  premises  in  action  on  lease,  527. 

of  thing  mentioned  in  11  will,  130  n. 

of  person,  mode  of  proof,  102. 

— when  presumed,  from  identity  of  name,  505. 

—named  in  will,  130  ».,  136,  13'J. 

— designated  inexactly  in  will,  1 10. 

—to  whom  tender  of  goods  was  made,  316. 

— named  in  letters  of  administration,  56. 

—committing  assault,  640.    (See  also  MISNOMER 

and  NAME.) 
IDIOCY,  734. 

of  testator  subsequent  to  execution  of  will,  114. 
IGNORANCE     of    whereabouts     of    corporate 
books,  51. 

of  testator  in  case  of  uncertainty  as  to  charit- 
able society,  141. 

— to  explain  misnomer  in  will,  142. 

of  one  being  a  dormant  partner,  210. 

of  partnership,  in  question  of  to  whom  credit 
was  given,  216. 

of  others,  of  torts  of  ono  partner,  217. 

in  question  of  mistake,  209. 

of  usage,  296. 

not  material  if  assent  is  proved,  362. 

of  the  law,  by  attorney,  557. 

proved  by  testimony  of  party,  620. 
ILLEGALITY  of  assignment,  5. 

of  written  instrument,  294  n.,  789. 

of  wagering  sale,  336. 

of  negotiable  paper,  441. 

of  conduct  of  plaintiff,  suit  for  negligence,  603. 

of  contract  respecting  thing  converted,  628. 

to  impeach  contract,  789. 

ILLEGITIMACY  removes  presumption  of  one 
leaving  an  heir,  86. 

statement  of,  in  registry  of  baptism,  87  n. 

of  child  born  before  marriage,  88  it. 

parents1  testimony  and  declarations  as  to,  89. 

proved  by  hearsay,  91. 

decree  of  probate  court  to  prove,  100. 
ILLICIT  intercourse,  685. 

ILLITERATE  PARTY,  execution  by,  443, 512,  788. 
IMBECILITY,  test  in  case  of,  114  n. 

declarations  of  testator  to  show,  115  n. 

testimony  of  witness  to  show,  118. 
IMPAIRED  POWERS,  by  injury  by  negligence, 

598. 
IMPEACHMENT  of  title  of  assignee,  8. 

of  power  of  officer  resting  on  consideration,  82. 

of  corporate  acts  presupposing  other  acts,  34. 

of  second  marriage,  8.'!. 

of  registry  of  facts  of  family  history.  99. 

of  record  of  judgment  of  naturalization,  102. 

of  decree  of  probate  of  will,  and  of  surrogate's 
jurisdiction,  111. 

of  letters  testamentary  or  of  administration,  57. 

of  validity  of  testamentary  act,  132. 

of  part  of  will,  135. 

of  subscribing  witness  to  a  will,  112. 

of  acknowledgment  by  married  woman,  175  n. 

of  process  for  want  of  jurisdiction,  1U7. 

of  one  testifying,  being  partner,  by  schedule  in 
insolvency,  221  n. 

of  writing  by  parol,  294. 

of  seller  who  has  testilied  to  sale,  332. 

of  contract,  787. 

— by  incapacity  of  contracting  party,  796. 

—on  ground  of  insanity,  797. 

— in  actions  for  reformation  or   cancellation, 
732. 

of  receipts,  807. 

of  release,  HIS. 

of  discharge  in  bankruptcy,  820. 

of  instrument,  in  action  for  reformation  or  can- 
cellation, 732. 

of  convi  yanco,  mortgage',  assignment  or  ante- 
nuptial settlement,  7W. 

JMPEKKKrT   UECOKDS,  in   actions  on  judg- 
ment, DUG. 


IMPLIED  promise  to  pay  for  use  and  occnpa 
tion,  351. 

—for  hire  of  chattels,  356. 

— for  services,  358. 

covenants  in  lease,  526. 

malice,  666. 

IMPOTENCE,  as  a  ground  for  divorce,  743. 
IMPRESSION  of  witness  hearing  slander,  664, 

—as  to  adultery,  745. 

IMPRISONMENT,  actions  for  false,  657,  etc 
INCAPACITY  of  party  should  bo  alleged,  440. 

— not  presumed,  705. 

—illiteracy,  443,  512,  578. 

of  contracting  party,  462. 

INCENDIARY,  circumstantial  evidence  of,  496. 
1NCUMBRANCES,  actions  ou  covenants  against, 

520. 
INDEMNITY,  parol,  to  prove  promise  of,  255. 

by  surety,  255. 

implied  promise  of,  for  moneypaid,  256. 

relation  of,  and  Judgment  paid,  to  show  amount 
due  in  action  for  money  paid,  202. 

failure  to  prove  allegation  of,  286. 

for  lost  negotiable  paper,  390. 

INDIVIDUAL  LIABILITY  of  stockholders,  etc., 

768. 
INDORSEMENT  of  bill,  when  insufficient  proof 

of  payment,  258  n. 
of  memoranda  of  protest,  429. 
before  payee's  indorsement,  436. 
restrictive,  444. 
to  show  payment,  809. 
of  payment  on  negotiable  instrument,  446. 
whether  before  or  after  maturity,  443. 
of  guaranty  on  instrument,  472. 
of  bill  of  lading,  488. 
iti  handwriting  of  debtor  as  an  acknowledgment 

of  debt,  824. 

acknowledge  g part  payment,  825. 
INDUCEMENT,  In  actions  for  slander,  etc.,  659. 
INEVITABLE  accident  exonerates  common  car- 
rier, 577. 

INFANCY,  inspection  to  decide  question  of,  87. 
proof  of  !>y  physician's  testimony  or  account,  87. 
to  impeach  contract,  796. 

new  promise,  admissions  and  declarations,  796. 
rescinding  contract  on  ground  of,  735. 
INFANT,  services  by,  35!». 
contract  for  services,  382. 
contributory  negligence  of,  597. 
selling  liquor  to,  778. 
INFORMATION    of    facts   of    family   history, 

source  of.  when  to  be  given,  91. 
INFRINGEMENT  of  trade  marks,  751. 

of  patent,  759. 
INHABITANTS,  knowledge  of.  not  binding  ou 

municipal  corporation,  45  n. 
INITIALS,  use  of,  by  testator  in  bequest,  133 

and  n. 

INJURY  by  negligence,  manner  of,  594. 
by  animals,  actions  for,  045. 
by  assault,  opinions  of  witnesses.  filO. 
INK,  opinions  of  witness  respecting,  307,  407. 
INNKEEPERS,  actions  against,  560. 

sign  of,  774,  777. 
INNOCENCE,  presumption  of,  in  civil  cases,  495, 

670  n. 

— in  aidofcircumstanc.es  showing  death,  73. 
— in  favor  of  party  to  marriage.  7'J. 
— insufficient  to  sustain  marrri.i 
— of  public  officer  charged  with  fraud  or  con- 
spiracy, 199. 

of  others  of  torts  of  one  partner,  217. 
presumption  of  legitimacy,   additional  to  that 

of,  88. 

of  compounding  felony,  acquittal  not  conclu- 
sive of,  7!W  ii . 

INQUIRY,  as  to  absence  for  seven  years.  75. 
for  children,  to  show  failure  of  issue,  86. 
to  sustain  escheat,  86. 
as  to  infancy,  87. 
partner's  discharge  of  private  debt  with  firm 

funds,  to  charge  debtor  with,  222. 
in  trade  as  foundation  of  knowledge  of 
value,  311. 


858 


GENERAL  INDEX. 


INQUISITION,  taken  by  sheriff's  jury,  612. 

in  lunacy,  effect  of,  119,  7.J4. 

—jjrlmafaeie  of  incapacity  of  witness,  65. 

as  evidence  of  testamentary  capacity,  119. 
INSANITY  incapacitating  witness,  65. 

domicile  of  nan.  compos,  106 n. 

lucid  interval,  114. 

sudden  change  in  habits,  and  suicide,  115. 

hereditary,  of  testator,  119. 

to  excuse  production  of  maker  of  memoranda 
in,  322  w.,  823  n. 

in  case  of  life  insurance,  501. 

to  impeach  contract,  797. 

to  rescind  contract,  733. 

value  of  services  in  question  of,  379. 
INSCRIPTION  on  signs  or  labels,  591,  774,  777. 
INSOLVENCY,  assignee  in,  authority  to  sue,  9. 

schedules  in,  to  impeach  witness  testifying  to 
being  a  partner,  221  n. 

of  agent,  in  proof  of  embezzlement,  281. 

to  show  to  whom  cred_it  was  given,  303, 360. 

of  buyer  to  show  rescission  of  sale,  335. 

warranty  against,  340. 

not  relevant  to  charge  of  alteration  of  commer- 
cial paper,  408.  . 

bankruptcy  conclusive  of,  474. 

ehown  by  execution,  559. 

of  debtor  in  execution,  607. 

false  representations  as  to,  616. 

mode  of  proof,  616,  etc. 

of  buyer  and  fraud,  625. 

in  creditor's  action,  740. 

to  repel  presumption  of  payment,  813. 

discharge  in,  820. 

INSPECTION,  sufficient  criterion  to  decide  ques- 
tion of  infancy,  87. 

of  goods  sold,  proof  and  conclnsiveness  of,  315. 

by  judge,  of  account  kept  by  party,  325. 

of  injured  limb,  599. 
INSPECTORS  of  election,  749. 
INSTRUCTIONS  of  factor,  how  proved,  559. 

to  carrier,  565,  567. 

to  sheriff  or  marshal,  607. 

such  as  to  exonerate  sheriff,  613. 
INSULTING  acts,  667. 
INSURABLE  interest,  486. 
INSURANCE,  actions  on,  476. 

varying  policy  by  parol,  7, 483. 

estoppel  of  member  from  questioning  corporate 
character,  29. 

of  vessel,  payment  of,  as  proof  of  death,  74,  96. 

stock  and  premium  notes  of  company.  455. 

moneys  for,  do  not  mitigate  damages,  603. 
INTEMPERANCE  of  workmen,  368. 

as  evidence  of  negligence,  585. 

how  proved,  735,  779. 

INTEMPERATE  HABIT,  how  proved,  778. 
INTENT,  in  implied  assignment,  2. 

of  attorney  in  buying,  5  n. 

to  ratify  acts  of  officers  or  agents,  43. 

as  to  gift  causa  mortis,  declarations  to  show, 
60. 

in  making  transfer  to  deceased.  69  n. 

in  deciding  domicile,  104,  105, 106. 

to  change  domicile  for  purposes  of  education, 
106  n. 

as  to  residence,  how  proved,  107. 

of  testator  in  will,  131. 

— direct  evidence  of,  143. 

—ascertained  by  language  of  will,  132. 

— to  devise  real  estate,  what  incompetent  to 
show,  146  n. 

to  give  different  estate  from  that  expressed,  146. 

— to  make  apparent  beneficiary  trustee,  146. 

— as  to  ademption  of  legacy,  149. 

— rebutting  evidence  as  to,  132. 

declarations  of  testator  as  to,  in  rebuttal,  136. 

— time  of,  bearing  on,  150. 

— in  explanation  of  ambiguity  as  to  parcels,  146. 

execution  of  will  presumptive  that  it  conforms 
to,  135. 

as  to  revocation  of  will,  123. 

— from  its  disappearance,  124. 

— declarations  of  testator  as  bearing  npon,  124. 

effect  of,  on  constructive  revocation,  126. 

to  defraud  Dy  destruction  of  will,  127. 


INTENT—  row  (in  ued. 
extrinsic  evidence  to  aid  in  showing,  129  130, 

andn.,  131. 

— as  to  bequest  to  heirs  or  next  of  kin  in  ad- 
vance, 148. 
situation  and  circumstances  of  testator  to  show, 

136. 

as  to  corporation  namod  in  a  will,  138. 
extrinsic  evidence  to  show  in  latent  ambiguity, 

140. 

of  testator  as  to  claimant  under  will,  141. 
— as  to  donee,  circumstantial  cvid'-nce  of,  141. 
as  to  giving  property,  extrinsic  aid  to,  143. 
legal  consequences   of   expressed,  not   to   be 

varied,  147. 

as  to  same  sum  given  twice  to  same  legatee,  148. 
as  to  execution  of  power,  how  shown.  150. 
of  donor  in  making  an  advancement.  151. 
— to  make  an  advancement,  extrinsic  evidence 

of,  156. 

as  to  advancement  by  deed  of  real  property,  152. 
— of  parent  in  purchase  in  name  of  child,  153. 
— shown  by  entries  in  account,  154. 
— declarations  of  donor  to  show,  155. 
of  deed  to  a  married  woman,  extrinsic  evidence 

of,  169. 

as  to  gift  to  married  woman,  170. 
of  husband  in  conveyance  to  wife  paid  for  by 

him,  170, 171. 

— to  make  gift  to  wife,  when  sufficient,  172. 
declarations  of  husband  to  show,  as  to  wife's 

property,  173. 
in  tacit  transfers  between  husband  and  wife, 

173. 
of  husband  to  reduce  wife's  choses  in  action  to 

possession,  176. 
of  married  woman  to  charge  separate  estate, 

181  n.,  183,  185. 
of  contract  of  officer,  105. 
as  to  partnership  in  actions  between  partners, 

not  to  form  partnership.  211  n. 

of  others  to  ratify  act  of  one  partner,  217. 

to  disprove  partnership,  220. 

as  to  real  estate  being  partnership  property,  229. 

to  create  trust,  parol  to  show,  238. 

to  explain  to  whom  credit  was  given,  216. 

of  payment,  to  show  to  which  of  several  credit 

was  given,  241. 
books  of  party  to  show  as  to  whom  credit  was 

given,  302. 
declarations  of,  to  make  request,  in  action  for 

money  lent,  241. 

as  to  application  of  payment,  265,  811. 
of  party  in  making  written  contract,  269  n. 
to  waive  tort  and  rest  on  implied  promise,  274. 
similar  transactions  to  explain,  279. 
false  entries  to  explain,  281. 
to  make  invoice  relevant,  289. 
to  ratify  act  of  agent.  299. 
to  give  credit  to  agent  instead  of  principal, 

%01. 
to   make  factor  for  foreign  principals  liable, 

302. 

illegal,  in  optional  contract  for  future  sale,  314. 
of  person  delivering  or  accepting  goods,  315. 
as  to  passing  of  title  on  sale  of  goods,  317. 
—by  delivery  of  bill  of  lading,  318. 
secret,  in  abbreviations  and  symbols  in  account, 

325. 

in  sale  by  agent  to  his  principal,  334. 
to  mislead  through  by-bidding,  334. 
as  to  giving  warranty,  341. 
to  warrant  on  executed  sale,  342. 
effect  of,  on  implied  warranty  on  sale,  343. 
as  to  sale  by  sample,  343. 
to  commit  waste,  534. 
to  deceive,  618. 
— may  be  proved  by  testimony  of  party,  618| 

620. 

in  procuring  execution  of  contract,  787. 
in  making  illegal  contract,  790. 
to  evade  usury  laws,  791. 
to  take  usury,  792,  793. 
conversation  on  sale  of  land  to  show,  723. 
to  affirm  contract  by  infant,  735. 


GENERAL  INDEX. 


859 


INTENT—  Continued. 

to  defraud,  from  possession  of  chattels  after 
conveyance,  737. 

of   debtor,  in  actions  by  judgment  creditors, 
739. 

— of  grantee,  739. 

in  violating  statute  or  ordinance,  772. 

in  actions  for  assault,  648. 

proved  by  other  offences,  775. 

of  seller  of  liquor,  778. 

in  infringement  of  trade  mark,  752,  754. 
INTERES  1',  actions  affecting  parties  in  a  Joint  or 
common,  186. 

admissions  and  declarations  by  real  party  in, 
186. 

admissions  and  declarations  of  parties  having 
common  or  several,  188. 

— of  parties  having  joint,  188. 

test  of  distinction  between  joint  and  common, 
188  n. 

declarations  of  assignor  of  part,  11  n. 

three  rules  as  to  acts  and  declarations  of  as- 
signor against,  12. 

in   profits,  when  insufficient   to  prove  one   a 
partner,  206. 

of  partners  presumed  equal,  229. 

when  allowed  on  sales.  330. 

oral  evidence  as  to  rate  agreed,  411. 

reservation  of,  presumptive  of  usury,  793. 
INTERFERENCE  in  patent  case,  763. 
INTERLINEATION  in   will  without  authority, 
135." 

— of  words  to  complete  sense,  134  n. 

in  negotiable  paper,  407. 

in  record  of  judgment,  538. 
INTIMIDATION  of  wife  by  husband,  185. 
INTOXICATION,  how  proved,  603,  779. 

to  rescind  contract,  735. 

to  show  incapacity  to  make  will,  116. 

as  evidence  of  negligence,  (303. 

action  for  causing,  775,  etc. 
INVKNTION,  novelty  of,  756. 

prior  knowledge  of,  703. 

abandonment  of,  764. 
INVENTOR,  patentee  the  original,  757. 
INVOICE  presumptive  against  agent,  of  amount 
of  NUe,  280. 

relevancy  of,  in  action  for  price  of  goods,  289. 

witness'  knowledge  of  value  based  on.  310. 

as  foundation  of  knowledge  of  market  value, 
311. 

description  of  goods  in,  as  a  warranty,  341. 

not  precluding  oral  warranty,  345. 

presumed  to  exist,  559. 

as  proof  of  contents,  566. 

as  evidence  of  title,  624. 
IRREGULAR  indorsement  of  negotiable  paper, 

436. 
ISSUE,  burden  of  proof  of,  85. 

presumptions  a*  to  failure  of,  85. 

possibility  of,  724  ». 

— extinct'.  Ni. 

consorting  as  a  family  as  proof  of,  87. 

proved  by  hearsay  us  to  fuc.ts  of  pedigree,  91. 

— by  general  reputation,  94. 

constructive  revocation  of  will  by  birth  of,  125. 
JUDGE'S  certificate,  to  judgment  of  sister  state, 

f.  13. 
JUDGMENT,  nature  of,  nnder  new  procedure, 

.-,11    ,/. 

date  of.  538. 
certified  copy  of,  535. 
exemplification  of.  53ii. 

hWurn  copies  of.  .Vili. 

imperfect  record  of.  536. 

of  sister  state,  appearance,  548. 

— clerk's  attestation,  543. 

—seal,  543. 

—judge's  certificate.  543. 

presumption  in  favor  of  jurisdiction,  541. 

limitations,  54i(. 

actions  on.  535,  etc. 

— mode  of  proof,  195. 

lost,  538. 

—docketing,  539. 

— reversal  of,  53y. 


JUDGMENT—  Continued. 

—satisfaction  of,  539. 

—of  N.  Y.  Courts,  540. 

of  justice  in  New  York,  540. 

—of  U.  S.  Courts,  549. 

— foreign,  550. 

and  deed  pursuant  to  it,  701. 

how  proved,  to  affect  title,  714. 

primuriness  of  record  to  prove,  802. 

parol  assignment  of,  2. 

warranty  on  assignment  of,  341  n. 

against  decedent  binding  on  executors  and  ad- 
ministrators. 60. 

to  remove  disqualification  of  party  to  testify, 
63  n. 

exclusion  of  witness  liable  to  be  affected  by,  63. 

a<  to  facts  of  family  history,  100. 

identity  of  pen-on  named  in,  101. 

of  naturalization,  to  show  national  character 
and  domicile,  102. 

fixing  character  and  amount  of  an  advancement, 
155. 

against  ancestor,  heirs,  devisees,  or  representa- 
tives, 160. 

against  executor  or  administrator,  161. 

against  married  women,  effect  of,  168. 

against  one  joint  party,  effect  of,  186. 

effect  of  former,  on  public  officer,  196. 

proof  of  by  officer  suing  on  process,  197. 

void  for  want  of  jurisdiction,  199. 

production  of,  as  foundation  of  process,  202. 

against  partners  as  proof  of  partnership,  208  n., 
221. 

against  trustees,  as  an  estoppel,  237. 

for  negligence,  against  two,  257. 

when  evidence  of  notice  of  non-payment,  258. 

as  proof  in  action  for  money  paid,  261. 

notice  of  suit  to  make,  conclusive  as  to  amount 
and  costs,  265. 

when  evidence  of  duress,  271. 

of  eviction  in  action  for  breach  of  warranty,  347. 

damages  on  breach  of  warranty  on  assignment 
of,  349. 

roll  as  evidence  of  costs,  378. 

conclusive  as  to  amount  even  against  third  per- 
son, 386. 

competent  to  show  diligence,  425. 

against  principal  debtor  admissible  against  guar- 
antor, 475. 

the  competency  of,  under  covenants  for  title, 
519.  etc. 

of  district  court,  city  of  N.  Y.,  541. 

presumption  of  payment  of,  from  lapse  of  time, 
ol2. 

—return  of  execution  to  repel,  813. 

general  rules  as  to  effect  of  former,  826. 

by  default  or  confession  former  adjudication, 
830. 

reasons  of  court  to  show  ground  of,  833. 

fraud  to  rebut  former,  b34. 

how  proved  in  actions  bv  judgment  creditors, 
736. 

against  joint  stock  company,  769. 

impeached  in  creditor's  suit,  741. 
JUDGMENT  CREDITORS,  actions  by,  736. 

—proof  of  execution,  736. 

proof  of  fraud.  737. 

indebtedness  to  plaintiff,  736. 

the  consideration,  738. 

voluntary  se  [lenient.  738. 

indebtedness  to  other  creditors,  738. 

intention  of  debtor.  739. 

fraudulent  intent  of  trrantee.  739. 
JUDICIAL  NOTICE  of  corporate  existence,  19. 

of  charters  of  public  corporations,  21. 

of  special  charters  of  municipal  corporations, 
21. 


of  seal  of  municipal  corporation,  35. 
or 

770  n. 


of  ordinances  of    municipal   corporations,  40, 


of  by-law?  of  private  corporations,  40. 
of  facts  affecting  pedigree,  SH>. 

of  law  of  ansbaua  ami  wife  in  other  states,  164 

of  law  of  sister  state.  5 Hi. 

of  foreign  rate  of  inteiest.  411. 

of  value  of  foreign  currency,  411. 


860 


GENERAL  INDEX. 


JUDICIAL  NOTICE—  Continued.      . 

of  day  a  of  grace,  holiday  s,  etc.,  433. 

of  notarial  certificate,  428. 

course  of  mail*,  430,  433,  462. 

of  course  of  insurance  business,  480. 

of  rate  of  commissions  oil  advances,  794. 

of  usage  of  trade,  486. 

— of  cliurch  to  keep  a  record,  30  n. 

of  character  of  beverage,  778. 
JUDICIAL  SALE,  700. 

JOINDER  of  members  of  voluntary  associations, 
15. 

of  joint  contractors,  etc.,  136. 
JOINT  ACCOUNT  evidence  that  parties  acted 

on.  3ir>. 

JOINT  DEBTORS,  proof  of  joint  liability  of, 

187. 

request,  to  sustain  action  for  money  lent,  242. 
promise   by,  against   others   to  revive   barred 

claim,  252. 

demand  on,  before  payment,  265. 
effect  of  release  of  one,  817. 
payment  by  obligation  of,  806. 
former  adjudication  against  one,  8^0. 
JOINT  LIABILITY,  actions  affecting  parties  in 

a,  186. 
proof  of,  where  some  defendants  are  absent  or 

have  defaulted,  187. 
preliminary  question  as  to  connection  to  admit 

declarations,  191. 
admissions  and  declarations   of   persons   not 

parties  to  action  on,  187. 
— of  parties  having,  183. 
— of  joint  promisees.  190. 
notice  to  one  of  two  joint  obligors,  190. 
declarations  of   conspirators    or   confederates, 

190. 
on  face  of  contract  dispensing  with  allegation 

or  proof  of  partnership,  20(i. 
for  loan,  241  n. 
receipt  of  payment  of,  in  action  for  money  paid, 

261. 

on  commercial  paper,  399. 
of  successive  indorsers,  415. 
variance  as  to,  504,  etc. 
JOINT  MAKER,  irregular  indorser  presumed  to 

be,  439  n. 

want  of  consideration  for,  442. 
JOINT  OBLIGORS,  admissions  and  declarations 

of,  188. 
JOINT  O  \VNER,    power  of  one  to  borrow  for 

all,  242. 
JOINT  PARTIES,  authority  to  indorse  for  each 

other,  415. 

JOINT   PROMISEES,  admissions  and    declara- 
tions of,  11)0. 

JOINT  STOCK  COMPANY  defined,  16. 
liability  of  stockholders,  etc.,  768. 
foreign,  a  corporation,  not  partnership,  16. 
when  rules  applicable  to  partnership  and  those 

to  corporations,  apply  to,  16. 
JOINT  TENANTS,  agency  to  render  effectual 

notice  to  one  of  two,  190. 
JOINTLY  seized,  acts  of  persons,  353. 
JURISDICTION,  general  principles  as  to,  544  n. 
by  recitals  in  letters  of  administration,  57. 
impeachment  of  letters  of   administration  for 

want  of,  57. 

— of  discharge  in  bankruptcy  for  want  of,  830. 
of  discharge  in  insolvency,  820. 
object  of  inquiry  as  to  domicile,  to  ascertain, 

103. 

impeachment  of  surrogate's,  111. 
want  of,  to  Impeach  process,  197. 
judgment  void  for  want  of,  199. 
acts  of  public  officer  within  his,  199. 
process  as  evidence  of,  202. 
want  of,  in  judgment,  539. 
of  justices,  how  proved,  540. 
judgment  of  sister  state— presumption  in  favor 

of,  544. 

former  adjudication  of  court  of  exclusive,  829. 
want  of,  in  rebuttal  of  former  adjudication.  834. 
JUSTICES'  JUDGMENTS,  540. 
—in  New  York,  540. 
— of  sister  states,  549. 


JUSTIFICATION,  public  officer  to  plead  strictly 
801. 

—proof  of  official  character  in,  201 

of  levy,  C31. 

by  tax  collector,  633. 

of  trespass  to  real  property,  038. 

of  assault,  650. 

of  libel  and  slander,  670. 

of  false  imprisonment.  K>7. 
KKY,  Mirtviuler  of,  to  show  delivery,  819. 
KINDNESS  of  testator  to  donee  to  show  intent, 

141. 

KNOWLEDGE,    incomplete,  to    rebut  ratifica- 
tion, 43. 

of  officers,  agents,  inhabitants  or  voters  of  mu- 
nicipal corporation,  45  n. 

declarations  and  admissions  of   executor  and 
administrator,  to  prove,  59. 

of  death  of  person,  cross-examination  to  ascer- 
tain, 72. 

of  family  to  sustain  escheat,  86. 

to  admit  declarations  as  to  pedieree.  92. 

of  general  reputation  in  family,  '.»!. 

of  contents  of  will,  when  presumed  from  due 
execution,  113. 

of  testator  of  description  of  a  person,  141  n. 

—  to  identify  charitable  society,  111. 

of  admissions,  etc.,  of  one  in  joint  business  by 
the  others,  to  show  authority,  190. 

by  public  officer  of  acts  of  deputy  or  subordi- 
nate, 198. 

of  married  woman  of  application  of  materials 
or  work  to  her  separate  estate,  184. 

—to  show  ratification,  185. 

of  statement  as  to  partnership,  to  render  hear- 
say admissible,  210. 

of  one  being  dormant  partner,  210. 

of  others  to  show  ratification  of  act  of  one  part- 
ner, 217. 

of  one  dealing  with  one  partner  after  dissolution, 
of  power  of  liquidation  in  another,  218. 

by  partner  of  matter  within  scope  of  business, 
as  notice,  219. 

of  want  of  partner's  authority  to  act,  222. 

of  misapplication  of  firm  funds  to  discharge 
private  debts  of  partner,  222. 

of  dissolution  of  partnership,  224. 

want  of,  by  partner  to  rebut  presumption  from 
entries,  230. 

of  trust  in  cesttii  qve  trust,  233. 

of  trustee  to  dispense  with  notice  and  demand, 
234. 

in  question  of  mistake,  289. 

of  witness  as  to  value,  310. 

— as  to  market  value,  310,  312. 

to  waive  discrepancy  in  size  and   weights  of 
packages,  315. 

presumption  of  as  to  articles  and  quality,  344. 

of  purpose  for  which  thing  was  ordered,  345. 

by  buyer,  of  defect,  349. 

of  another  person,  how  proved,  360. 

of  signature,  393. 

presumed  from  similar  transactions,  399. 

burden  of  proof  in  case  of  waiver,  435,  436. 

of  facts  in  insurance  application,  479. 

of  agent,  when  not  chargeable  to  principal,  481. 

of  attorney,  when  notice  to  client,  733. 

how  far  pfesumed,  493. 

circumstances,  evidence  of,  493. 

of  carriers'  usase,  577. 

proved  by  testimony  of  party,  620. 

of  state  of  title  presumed,  705. 

or  putting  on  inquiry,  716. 

prior,  of  invention.  763. 

of  violation  of  ordinance,  772. 

of  facts  constituting  statute  liability,  772. 

of  the  law,  how  presumed,  772.  790. 

of  yiolatior-.fi  of  statute,  778,  782. 

of  infancy,  778. 

of  seller  of  liquor,  778. 

of  intoxicating  quality  of  medicine,  782. 

of  use  of  premises,  779. 

of  illegality  of  contract,  790. 

burden  as  to  facts  peculiarly  within,  771. 

presumed  to  continue,  783. 

of  cause  for  fo.  feiture,  783. 


GENERAL  INDEX. 


861 


LABELS,  Inscription  on,  774,  777. 
LABOR,  action  for  compensation,  357. 
LACHES  in  omitting  demand  or  notice,  '^35. 

in  presenting  bank  check,  454. 
LOCUS  in  quo.,  036. 
LAND,  presumption  of  death  from  absence,  75. 

bequest  of  land  to  pass  a  mortgage.  140. 

when  husband  entitled  to  rents  and  profits  of 
wife's,  176. 

parol,  to  prove  agency  for  purchase  of,  252  n. 

contribution  for  payment  of  tax,  254. 

deficiency  of,  to  sustain  fraud,  729. 

ejectment  for,  691. 
LANDLORD,  right    to  draw  profits    doeg    not 

make  partner  of,  211  n. 

LANDLORD  AND  TENANT,  action  on  lease, 
525,  etc,. 

— for  use  and  occupation,  351. 

ejectment  between,  706. 
LANGUAGE,  interpretation  of,  in  will,  132. 

of  testator  to  show  usages  of  speech,  150. 

of  instrument,  parol  to  show,  294. 

usage  of,  in  a  trade,  297. 

parol,  to  show  usages  of,  297. 

testimony  of  experts  as  to  technical  language, 

757. 

LAW  of  other  state  or  nation,  how  proved.  22,  85. 
"LAY  DAYS,"  518. 
LEASES,  actions  on,  522,  etc. 

allegation  of,  523. 

conditional  delivery  of,  how  proved,  584. 

how  varied  by  parol,  355,  524. 

in  action  for  use  and  occupation,  351. 

in  case  of  tenant  in  common,  353. 

implied  covenants  in,  519,  526. 

covenants  for  repairs  in,  532. 

authority  of  parties  to  recover  on,  525. 

usage  or  custom  to  explain,  525. 

how  construed  when  silent  or  ambiguous,  526. 

ambiguous  designation  in,  527. 

date  and  term  of,  how  proved,  527. 

amount  of  rent,  how  proved,  527. 

possession  not  essential,  528. 

estoppel  of  tenant,  528. 

adverse  title,  530. 

forfeiture  of,  how  waived,  530. 

demand  of  rent,  530. 

assignment  of,  how  proved,  631. 

surrender  of,  532. 

destruction  of  premises,  532. 

apportionment  of  rent,  533. 

payment  of  rent,  533,  809. 

eviction,  534. 

waste,  how  proved,  534. 

raises  presumption  of  ownership,  779. 
LEGACY. 

extrinsic  evidence  as  to  bequest  of  stock,  147. 

— as  to  ademption  of,  148. 

— as  to  chargine,  149. 
LEGAL  PROCESS  against  bailee,  554. 

false  imprisonment,  657. 

in  action  by  or  against  officer,  605-613. 

date  of,  6RS«.,  8£J. 

LEGATEES  and  devisees,  actions  by  and  against, 
71. 

erasure  of  name  of,  and  substitution  of  another, 
134. 

extrinsic  aid  in  identifying,  136. 

claims  of,  on  testator  to  show  intent,  136. 

when  a  trustee,  146. 

same  sumgiven  twice  to  same,  148. 

declarations  and  admissions  of,  showing  fraud 
or  undue  influence,  159, 160. 

collusiveness  of  judgment  in  suit  by,  160. 

judgment  agninst  executor,    etc.,  in  action  to 

charge,  N>I. 

LEGISLATURE,  recognition  of  corporate  exist- 
ence by,  20. 

journal  of,  to  prove  voto  for  statute,  21. 
LEGITIMACY  of  offspring,   strengthening  pre- 
sumption of  marriage.  79. 

second  marriage  before  death  of  former  part- 
ner, 83. 

burden  of  proof,  and  presumptions  as  to,  88. 

rebuttal  of  presumption  of,  88. 

Adulterous  intercourse  of  mother,  89. 


LEGITIMACY—  Continued. 
parents,  testimony  and  declarations  as  to,  89. 
dying  declarations  as  to,  90  n. 
proved  by  hearsay  as  to  facts  of  pedigree,  91. 
decree  of  probate  court  as  to,  100 
LETTERS  to  deceased,  testimony  explaining,70/i. 
to  testator  to  show  mental  soundness,  115. 
of  testator  to  identify  charitable  society,  141. 
as  hearsay  of  facts  of  family  history,  94. 
received  within  seven  years,  production  of,  78  «. 
— to  rebut  presumption  of  death,  7I>. 
to  relatives  of  absentee  when  insufficient  in. 

quiry,  76. 

expressing  intent  never  to  return,  107  n. 
of  wife  to  show  causes  of  separation.  179. 
mailing  of,  to  public  officer  as  notice,  196. 
— to  sustain  inference  of  receipt,  291. 
presumed   delivered    in   ordinary   course,  433. 

(ButfffSOS.) 
stating  writer  is  interested  in  firm  and  asking 

credit,  209  n. 

by  partner  in  his  own  name,  218  n. 
notice  of  dissolution  of  partnership  by,  224. 
as  res  gestcK  to  show  payments  instead  of  loans. 

245  n. 

of  agent  to  sub-agent,  253. 
— accompanying  receipt.  807. 
containing  demand  on  joint  debtor,  primariness 

of,  265. 

letter-press  copies,  266, 290. 
—duplicate  originals,  266. 
to  show  title  to  fund,  275. 
agreement  of  sale  made  by,  289. 
part  of  connected  correspondence,  291,  677. 
as  evidence  of  market  value,  309. 
knowledge  of  witness  as  to  value  based  on.  310. 
of  negotiation  of  sale,  to  show  warranty,  345. 
enclosing  contract,  part  of  res  ge»l<je,  404. 
of  the  agents  of  a  party  to  him,  499. 
payment  by,  803. 

of  debtor  to  show  application  of  payment,  811. 
breach  of  promise,  ti77. 

LETTERS  OF  CREDIT.    (See  GUARANTY.) 
LETTERS    TESTAMENTARY    AND    OF   AD- 

MINISTRATION,  56. 
— to  prove  official  character  of  executors    and 

administrators,  56. 
—notice  to  produce,  58. 
— when  sufficient  proof  of  death,  64. 
— impeachment  of.  57. 
— to  charge  heir  with  ancestor's  debt,  161. 
of  another  state,  55. 
showing  facts  of  family  history,  100. 
LEVY,  how  to  prove  against  sheriff,  608. 
presumption  as  to  time,  024. 
action  for  wrongful,  630. 
—return  as  admission,  200. 
presumption  of  partner's  authority  to  direct 

214  n. 

liability  for  partner's  directing  tortious,  217. 
to  sue  on  administration  bond,  515. 
as  evidence  of  payment,  539. 
precumption  of  satisfaction  of  judgment,  802. 
LEX  LOCI,  as  to  title  and  transactions  of  husband 

and  wife.  164. 

LIABILITY  of  stockholders,  etc.,  768.      • 
1,1  I!  EL,  actions  for,  65!(,  etc. 
LICENSE,  joint  application  for,  as  proof  of  part- 
nership, 208  i>. 

to  sell,  presumption  as  to,  287. 
of  physician,  attorney  or  other  person  rendering 

services,  358. 
in  case  of  trespass,  638. 
of  innkeeper,  560. 
evidence  of  business.  777. 
evidence  of  ownership,  591. 
from  patentee,  7'i-1. 

estoppel  from  denying  validity  of  patent,  756. 
T.K  'KNSK  LAW,  actions  for  violation  of,  774. 
LIEN  of  bailee,  660. 
on  thing  con  verted,  625. 
incclianic'ti,  actions  on,  767. 
vendor's,  foreclosure,  719. 
LIFE,  presumption  of,  73,  75,  77. 
— English  rule  as  to,  77. 
—grounds  for,  77  n. 


8G2 


GENERAL  INDEX. 


LIFE—  Continued. 

— American  rule  as  to,  77. 

—grounds  for,  78  n. 

probable  duration,  734. 
LIGHT,  obstruction  of,  642. 
L1KKNKSS,  how  proved,  377. 

not  evidence  of  identity,  895. 
LIMB,  exhibiting  to  jury,  599. 
LIMITATIONS,  statute  of,  distinguished  from 
presumption  from  lapse  of  time,  812. 

pleading,  8'^. 

burden  of  proof,  822. 

conditional  new  promise,  824. 

acknowledgment  of  debt,  824. 

part  payment,  824. 

indorsement  of  payments,  825. 

revival  of  .debt  by  admissions  and  declarations 
of  co-representative.  59. 

— by  payment  by  co-representative,  59  n. 

as  to  payment  in  action  for  money  paid,  267. 

as  bar  to  action  for  wages,  375. 

on  insurance  note?,  456. 

of  account,  on  account  stated,  464. 

judgment  of  sister  state,  549. 

of  action  under  Civil  Damage  Law,  782. 
LIQUIDATED  damage*  or  penalty,  511. 
LIUUOKS,  action  for  selling,  774. 
LIS  MOTA,  declarations  made  in  view  of  con- 
troversy, 95. 

LIS  PENDENS,  as  notice,  717. 
LOAN,  by  corporation, when  presumed  valid,  33  n. 

power  of  "  financial  agent  '  to  negotiate,  43. 

property  given  an  advancement  on,  152. 

delivery  of  money  or  chattels  by  parent,  154. 

parol  to  show,  an  advancement,  154. 

from  wife  to  husband,  173. 

proof  of,  in  accounting  between  partners,  226. 

to  sustain  action  for  money  lent,  239. 

delivery  of  money  to  show,  240,  243. 

when  presumed  payment,  not,  243. 

direct  testimony  of,  240. 

to  third  person  to  sustain  action  for  money 
lent,  240. 

to  which  of  several,  credit  was  given,  240. 

request  to  characterize  transactions  as,  241. 

authority  of  agent  to  make  request  for,  241. 

due  bills  competent,  of,  244. 

check  evidence  of  payment,  not  of,  243,  245. 

receipt  in  action  for  money  lent,  to  show,  244. 

plaintiff's  accounts,  to  show,  245. 

when  recovered  without  regard  to  special  agree- 
ment, 246. 

effect  of  holding  collateral  security  for,  246. 

joint  adventure  under  allegation  of,  279  n. 

reservation  on,  as  compensation,  not  usury,  794. 

when  presumed  from  discounting  note,  795. 
LOG-BOOK,  competency  of,  in  insurance,  500. 
LOSS  of  corporate  books,  51. 

of  will,  secondary  evidence  of,  126. 

to  firm  from  partner's  neglect,  228. 

of  paper  by  bankers,  558. 

as  ground  of  assessing  insurance  notes,  455. 

insured  against,  488,  etc. 

presumed  from  ship's  absence,  unheard  from, 
499. 

by  carrier,  569. 

of  thing  bailed,  556. 

of  profits  in  infringement  of  trade-mark  case, 
753. 

of  service,  by  seduction,  682. 
LOST  INSTRUMENT,  action  on,  510. 

title  deed  and  secondary  evidence,  709. 

judgment,  538. 

negotiable  paper,  389,  390. 

certificate  of  notary,  428. 

execution,  702. 

LUNACY,  inquisition  of,  119,  734. 
LUNATIC,  testimony  against  committee  of,  62, 

transaction  with,  by  objecting  party,  69. 

impeaching  contract,  119,  734. 
MAGISTRATE,  proof  of  marriage  before,  by  eye 
witness,  80. 

de  facto  and  with  color  of  title.'process  by,  202. 

authority  shown  by  parol;  784. 
MAIL,  ordinary  course  of,  m  case  of  an  account 
stated,  462. 


MAIL—  Continued. 

payment,  by,  803. 
MAILING  letter,  291. 

notice  of  protest,  433. 

presumed  from  ordinary  course,  433. 
MALICIOUS  PROSECUTION,  actions  for,  652, 

etc. 
MALICE,  by  public  officer,  199. 

in  trespass,  630. 

in  cage  of  nuisance,  642. 

in  case  of  libel,  666. 

of  agent  in  committing  tort,  38. 

in  malicious  prosecution,  654,  655. 
MANUFACTURE,  distinguished  from  sale,  357. 

statute  of  frauds,  as  to  agree'ments  for,  292  n. 

designated  by  a  particular  brand,  804. 
MANUFACTURER,  implied  warranty  of.  342. 
MAPS  and  charts,  699. 

admissibility  of,  321. 

referred  to  in  a  deed,  697. 
MARGINE,  figures  on  commercial  paper,  410. 

memorandum  on  notice  of  protest,  426  n. 
MARK,  signature  by,  398. 

on  patented  article,  omitted,  765. 
MARINE  insurance,  496.  etc. 
MARINER'S  protest,  500. 
MARKET  VALUE,  of  goods,  how  proved,  307. 

between  vendor  and  purchaser,  728. 

price  current  as  proof  of,  309. 
MARRIAGE,  burden  of  proof  and  presumptions 
of,  79. 

how  proved  in  civil  actions,  163. 

— action  for  necessaries,  178. 

in  action  for  enticing  away,  681. 

in  crim.  con.,  684. 

in  divorce,  743. 

direct  evidence  of,  79. 

testimony  of  parents  to,  89. 

husband  or  wife  as  witnesses  to  prove,  165. 

proof  by  certificate  or  registry,  80. 

indirect  evidence  of,  81 . 

cohabitation  and  repute,  81. 

cohabitation  and  declarations,  82. 

after  meretricious  intercourse,  82. 

second,  during  absence,  83. 

presumption  of  death  to  sustain  second,  73. 

rebutting  evidence  of,  84. 

foreign  law  of,  how  proved,  85. 

in  question  of  title  by  collateral  descent,  85. 

presumption  of  legitimacy,  additional  to  that 
of,  88. 

illegitimacy  of  child  born  before,  88  n. 

entries  of,  in  family  Bible  or  other  book,  93. 

proved  by  general  reputation,  94. 

—by  hearsay  as  to  facts  of  pedigree,  91. 

competency  of  certificate,  99. 

by  registries  of,  authorized  by  law,  97. 

registries  of,  not  authorized  by  law.  98. 

identity  of  oerson  named  in  register  of,  101. 

foreign  certificate  of,  97  n. 

decree  of  probate  court  as  to,  100  n. 

to  render  declarations  admissible  as  hearsay,  91. 

of  alien  woman,  102. 

constructive  revocation  of  will  by,  125. 

declarations  of  husband  as  to  property  of  wife, 
173. 

actions  for  breach  of  promise  of,  676,  etc. 
MARRIED  WOMAN,  liability  of  to  equitable  es- 
toppel, 167. 

effect  of  judgments  against,  168. 

evidence  of  title  of,  169. 

declarations  as  to  title  of,  170. 

title  to  property  obtained  in  business  by,  171. 

evidence  of  conveyance  by,  174. 

acknowledgment  by,  174. 

Eowers  of  attorney  by,  174  n. 
npeaching  conveyance  of,  175. 
evidence  of  separate  business  of,  175. 
actions  by,  180. 

evidence  of  contract  in  actions  by,  180,  182. 
two  elements  in  proof  of  contract  of,  181. 
action  of,  for  tort,  181. 
actions  against,  181. 
pleading  m  action  against,  181 . 
separate  estate,  English  rule  as  to  charging,  182. 
—New  York  rule  as  to  charging,  183. 


GENERAL  INDEX. 


863 


MAKTIIEI)  WOMAN-  Continued. 

—direct  benefit  to,  184. 

action  for  necessaries  against,  185. 

action  for  fraud  against,  185. 

action  on  negotiable  paper  by,  399. 

sen-ices  on  the  property  of,  358. 

presumption  of  husband's  agency,  399. 
MARSHALS,  action  by  and  against,  605,  etc. 

— against  receiptor,  605. 

— for  conversion,  605. 

— for  trespass,  605. 

justifying  levy,  631. 

MASTER  AND  SERVANT,  actions  for  wrongful 
dismissal  or  refusal  to  receive,  384. 

liability  of  warehouse-keeper,  562. 

admissions  and  declarations  of  servants  admis- 
sible against  masters,  588. 

liability  of  master  to  servant,  593. 

authority  to  assault,  646. 

assault  by  servant.  646. 

action  by,  for  enticing  away  servant,  681. 

sale  by  servant,  777. 

sales  of  liquor,  774. 

MATERIALS  proved,  under  complaint  for  ser- 
vices, 357. 

value  of,  3(>s. 

MEANING  of  libelous  words,  664. 
]\1  KAN'S  of  support,  knowledge  of,  780. 
MEASUREM  ENT  of  work  done,  365. 
MEASURER'S  return,  566. 
MEASURES,  usage  to  show  peculiar,  304. 
MECHANIC'S  LIEN,  actions  on,  767. 

foreclosure  of,  as  defense  to  action  for  price  of 

goods,  K36. 

MEDICAL  treatment,  the  effect  of,  600. 
MEDICINE,  action  for  selling  intoxicating  bever- 

MELANCHO'LIA,  502  n. 

MEMBERSHIP  of  voluntary  associations,  15. 

of  corporation,  768. 
MEMORANDUM,  distinction  between  corporate 

minutes  and  individual  diary,  47  n. 
accounts  and  entries  of  corporation  as,  52. 
indicating  death  in  official  record,  72  n. 
of  physician  to  prove  date  of  birth,  87. 
entries  of  births,  deaths  and  marriages  in,  93. 
of  facts  of  family  history,  96. 
of  clergyman,  98. 
of  testator,  146  n. 

indicating  a  gift  to  be  an  advancement,  154. 
referred  to  in  will  as  showing  an  advancement, 

156. 
of  "sworn  before  me,"  when  not  proof  of  oath 

of  public  officer,  194. 
check  given  as,  244,  454. 
of  payment,  when  used  in  testifying,  258. 
of  terms  of  sale,  when  not  primary,  288. 
of  sale  under  statute  of  frauds,  292. 
of  sale,  parol  to  explain,  293. 
unsigned,  862-375. 

— indicatin"  sale,  parol  to  explain,  313. 
entries  to  snow  to  whom  credit  was  given,  302. 
use  to  refresh  memory  of  witness,  523. 
as  auxiliary  to  oral  testimony,  319. 
admissible  as  part  of  res  gestce,  319,  326. 
by  a  third  person  in  course  of  business,  322. 
of  deceased  person  in  course  of  duty,  429. 
refreshing  memory,  320,  322. 
shop-books  and  other  accounts  of  party  as,  322. 
of  defendant's  admission  made  by  plaintiff  or 

his  agent,  327. 
of  auction  sale,  327. 

of  sale  by  broker,  authority  to  make,  328. 
of  contract  for  services,  363. 
of  person  who  made  demand,  etc.,  of  negotiable 

paper,  425. 

in  margin  of  notice  of  protest,  426  n. 
to  refresh  memory  as  to  protest,  429. 
of  statement  of  account.  461. 
of  contract  not  signed,  523. 
as  evidence  in  case  of  negligence,  587. 
diagrams,  maps,  etc.,  699. 
characterixiiii,'  possession  of  land,  711. 
found  on  premised  illegally  need,  784. 
of  payer  to  show  payment,  808. 
of  contract  between  vendor  and  purchaser,  726. 


MEMORY,  memoranda  refreshing,  320. 
MENTAL  feelings,  502. 

suffering,  599. 

impairment  by  negligence,  599. 
MERCHANT,  letters  of,  as  evidence  of  market 
value,  309. 

price  current  issued    by,  as  proof   of  market 

value,  309. 

MERGER  of  cause  of  action  in  former  recovery. 
827. 

— by  judgment  against  one  joint  debtor,  830. 

of  contract  between  vendor  and  purchaser,  728. 

of  rent  in  sealed  instrument,  534. 
MESNE  profits,  ejectment,  714. 
MESSENGER,  memoranda  of,  429. 
MIND,  effect  of  probate,  as  to  testator's  sound- 
ness of,  110. 

MINISTERS,  privileged  communications  to,  501. 
MINUTE-BOOK  of  corporation  when  competent, 
46, 

when  may  be  resorted  to,  47. 

for  and  against  whom,  competent,  48. 

primariness  of,  48. 

of  one  since  deceased,  how  proved,  49  n. 
MISCONDUCT  of  receiver  to  render  him  per- 
sonally liable,  232. 

MISDESCRIPTION,  declarations  of   testator  to 
explain,  143  n. 

in  catalogue  a,t -auction,  328. 
MISNOMER  of  corporation  in  abatement,  31. 

in  appointment  of  public  officer,  194. 

in  will,  142. 

in  deed,  695. 

MISREPRESENTATIONS  of  testator  as  to  his 
will,  131. 

to  rebut  presumption  of  intent  of  husband  to 
make  provision  for  wife,  171. 

as  ground  of  action,  6)4,  etc. 

in  action  between  vendor  and  purchaser,  729. 
MISTAKE,  assignment  of,  cause  of  action  for, 
3. 

to  rebut  ratification,  43. 

of  secretary  of  corporation  in  not  making  en- 
try, 52. 

of  draftsman  of  will,  as  to  name,  141  n. 

in  description  of  property,  143 

of  scrivener  in  drawing  will,  113. 

— in  writing  name  in  will,  139 and  n. 

in  omitting  provision  of  will,  129. 

in  wills,  correction  of.  134  and  n.,  135  ». 

— when  not  to  be  shown,  or  corrected,  135,  136. 

of  testator  as  to  existence  of  a  fund,  explained, 
147. 

— In  statement  of  an  advance,  149. 

consideration  of  deed  obtained  by,  171. 

to  impeach  conveyance  by  wife,  175. 

in  joining  husband  with  wife,  182  n. 

securities  surrendered  by,  243  n. 

payment  for  assessment  or  taxes  by,  260  n. 

in  paying  neighbor's  tax,  as  consideration  for 
promise  to  repay,  251  n. 

in  law,  by  agent  to  prevent  recovery  of  princi- 
pal, 253  n. 

in  compromise  and  composition  of  debt,  816. 

in  paying  money  for  another,  reimbursement, 
254  ,i. 

recovering  back  money  paid  under,  268. 

promise  to  repay  money  paid  uuder  mistake, 
270. 

in  paying  money  on  forged  or  counterfeit  pa- 
per, 270. 

insufficient  to  sustain  allegation  of  fraud,  272. 

demand  in  case  of,  ~si  n. 

in  written   instrument,  parol  to   show,  294  n., 
295. 

in  entry  as  to  whom  credit  was  intended  to  be 
given,  303. 

in  MdrMdBg  goods  sold,  316. 

in  name  of  buyer  at  minion  sale,  328. 

in  date  of  contract,  409.  41i'. 

iu  commercial  paper,  must  be  pleaded,  410. 

in  footing  up  account,  463. 

of  law,  in  award,  469. 

does  not  dispense  with  statute  of  frauds,  472. 

in  insurance  polie\ 

as  a  ground  fur  reformation,  512. 


864 


GENERAL  INDEX. 


MISTAKE—  ConfimrtfJ. 
in  counterpart  or  duplicates,  524. 
of  grantor  in  executing  deed,  788. 
in  Hiking  usury,  7SM. 
iiiacfoimr  slated.  Sl.">. 
to  avoid  release,  818. 

conversation  on  sale  of  land  to  show,  729. 
MODELS  in  patent  case*,  757,  760. 
MODIFICATION  of  contract  for  services,  370. 
of  sale,  314. 

subsequent  to  written  contract,  413. 
of  sealed  agreement,  510. 
of  a:rreement  as  to  negotiable  paper,  447. 
MONEY,  allegation  of  collection  of,  on  process, 

198. 
burden  on  plaintiff  suing  to  recover  value  of 

bad,  270. 
referred  to  in  will  as  showing  advancement, 

156. 

delivery  of,  presumed  in  payment  of  debt,  799. 
possession  of,  by  creditor  or  agent,  to  show 

payment,  810. 
MONEY  GIVEN  to  a  eon  to  purchase  a  farm, 

when  an  advancement,  153. 
to  married  woman,  as  showing  her  title,  170. 
by  husband  to  wife,  declarations  in   reference 

to,  172. 

MONEY  LENT,  grounds  of  action  for,  239. 
delivery  of,  239. 
direct  testimony  to  loan,  240. 
delivery  to  third  person,  240. 
to  which  of  several  credit  was  given,  240. 
request,  characterizing  transaction  as  loan,  241. 
authority  of  agent  to  make  request  for  loan, 

241. 

parties  to  joint  adventure,  242. 
request  of  joint  debtor,  242. 
written  evidence  in  actions  for,  243. 
delivery  of,  without  writing,  presumed  payment 

of  obligation,  213. 
due  bills  as  proof.  243. 
defendant's  check  in  favor  of  plaintiff,  244. 
defendant's  checks  on  plaintiff,  244. 
defendant's  receipt  to  show  loan,  244. 
plaintiff's  check,  244. 
plaintiff's  account  book,  245. 
character  in  which  parties  dealt,-  246. 
connected  und  collateral  agreements,  246. 
MONEY  PAID,  grounds  of  action  for,  249. 
debt  under  seal  or  by  judgment,  3. 
to  defendant's  use,  249. 

previous  request,  or  previous  promise  to  reim- 
burse, 250. 

subsequent  promise  to  reimburse,  251. 
parol  to  vary  the  writing,  251. 
agent's  action  against  principal,  252. 
obligation  to  pay  what  defendant  ought  to  have 

paid,  253. 
surety's  action  against  principal  or  co-surety, 

254. 

implied  promise  to  indemnify,  256. 
action  between  parties  to  negotiable  paper  for, 

2o7. 

proof  of  payment  by  oral  evidence,  258. 
— by  producing  defendant's  order  in  favor  of 

third  person,  259. 

—by  plaintiff's  check  or  accounts,  259. 
—by  payee's  receipt  or  surrender  of  evidence  of 

debt,  260. 

judgment  against  plaintiff,  261. 
medium  of  payment,  263. 
amount,  2i>4. 

source  of  the  fund  paid,  264. 
object  and  application  of  the  payment,  265. 
demand  and  notice,  265. 
defenses  to  action  for,  266. 
under  mistake,  etc.,  payment  in  actions  for,  268. 
— subsequent  promise  to  repay,  270. 
—forged  or  counterfeit  paper,  270. 
under  duress,  270. 
under  fraud,  271. 
where  consideration  fails,  272. 
MONEY  RECEIVED,  grounds  of  action,  273. 
pleadings  in  action  for,  273. 
by  defendant  to  plaintiff's  use,  273. 
plaintiff's  title  to  the  fund,  274. 


MONEY  RECEIVED—  Cfmtinued. 

the  receipt  of  the  money  by  defendant,  275. 
'  —by  agent  of  defendant,  978. 

the  medium  and  amount  of  payment,  277. 

action  by  depositor  a'_'aiii-t  Mok,  277. 

bank's  action  for  overdraft.  279. 

action  by  principal  against  his  agent,  279. 

demand  and  notice  in  action  for,  281. 

defendant's  evidence,  281. 

by  sheriff,  60S. 
MONTH,  meaning  of,  366. 
MOM'MKNTS,  bounding  lands,  700. 
MORTGAGE,  parol  assignment  of,  2. 

admissions  of  assignor  against  assignee,  14 

payment  to  assignor,  802. 

authority  of  officer  to  cancel,  35. 

when  bequest  of  land  will  pass.  146. 

to  disprove  joint  interest  or  liability,  188  n. 

in  name  of  one  partner,  222  n. 

title  by  chattel  mortgage,  625. 

deed  proved  a,  by  parol,  722. 

foreclosure  of,  719. 

alteration  of,  721. 

evidence  of  consideration,  742. 

fraudulent  intent  of  mortgagee,  to  impeach,  739. 
MORTGAGOR   AND  MORTGAGEE,  ejectment 

between,  707. 

MOTIVE  of  contract  distinguished  from  consid- 
eration, 441  n. 

in  actions  for  assault.  648. 

MUNICIPAL  CORPORATIONS,  illegality  of,  in 
proceedings  to  enforce  ordinances,  20. 

acceptance  of  charter  by,  25. 

judicial  notice  of  charters,  21. 

— of  seal,  35. 

— of  ordinances,  40. 

ordinance,  how  proved,  40,  770. 

ordinances  violation  of,  as  evidence  of  negli- 
gence, 590. 

adoption  of  by-law  of,  39  n. 

usage  and  coursu  of  business  of  officer  or  agent, 
42. 

notice  to  officers  or  agents  of,  45  n. 

knowledge  of  officers,  agents,  inhabitants,  or 
voters  of,  45  n. 

competency  of  books  of,  47. 

primariness  of  corporate  record  or  copy,  48  n. 

parol  to  vary  minutes  of,  51. 

recovery   of   money   wrongfully  borrowed   of 
officer,  274  n. 

— municipal  bonds,  actions  on,  451. 

liability  for  unsafe  condition  of  property,  590. 

cannot  alter  rules  of  evidence,  7V1. 
MUTUAL  ACCOUNT  in  case  of  account  stated, 

459. 
MUTUAL   PROMISE  of  marriage,  actions   for 

'  breach  of,  676. 

MUTILATED   record,  536.     (And  see  ALTERA- 
TIONS.) 

NAME  of  incorporation,  suing  by,  as  evidence  of 
user,  27. 

when  identity  presumed  from,  56. 

proved  by  hearsay  as  pedigree,  91. 

— by  general  reputation,  94. 

identity  of  person  with,  101. 

in  will,  explanation  of  use  of,  by  testator,  133. 

— erasure  of  and  substitution  of  another,  134. 

—of  relationship,  137. 

— of  corporation,  138. 

— when  not  controlling,  139. 

identity  of  person  designated  inexactly  in  will, 
139,  140. 

latent  ambiguity  in,  140. 

fraudulent  insertion  of,  when  it  creates  a  trust, 
147. 

of  child,  purchase  in,  152. 

of  members  of  firm,  proof  of,  207. 

nominal  partner  receiving  only  compensation 
for,  208. 

partnership  as  authority  for  business  done  in 
firm,  214. 

credit  to  partnership  from  transaction  being  in 
firm,  ill5. 

signing  contract  self  "  &  Co.,"  215. 

charging  firm,  on  contract  in  partner's  individ- 
ual, 2*6. 


GENERAL  INDEX. 


8G5 


NAME—  Continued. 

private  dealing  by  partner  In,  not  within  scope 
of  business,  222. 

change  of  firm,  ns  notice  of  dissolution,  223, 224. 

on  negotiable  paper,  reimbursement  in  inverse 
order  of,  257. 

liability  of  one  permitting  nse  of  his,  300. 

of  buyer  nt  auction  sale,  correction  of,  328. 

on  sign  board,  card,  etc.,  5!)1,  774,  777. 
NATIONAL  BANK.    (See  BANK.) 
NATIONALITY,  national   character  and  domi- 
cile, 102. 

naturalization,  102. 

NATURAL  manifestations  of  pains,  599. 
NATURALIZATION,  to  show  national  character 
and  domicile,  102. 

as  evidence  of  change  of  domicile,  106. 
NECESSARIES,  purchased  by  wife.,  177. 

action  against  husband  for,  178. 

how  proved,  178. 

defenses  to  action  for,  178. 

action  against  married  woman  for,  185. 

against  infant,  796. 
NK<  NATIVE  evidence,  756. 
NEGLIGENCE,  actions  for,  582,  etc. 

witnesses'  opinions,  586. 

notice  of  defect,  591. 

request,  591. 

who  is  contractor,  592. 

who  is  servant,  592. 

employment  of  unfit  servant,  593. 

common  employment,  592. 

condition  of  person  or  thing  injured  in  actions 
for,  594. 

Buffering  in  actions  for,  598. 

impaired  powers,  598. 

opinions  of  witnesses,  600. 
/  burden  of  proof  as  to  contributory,  594. 

of  corporation  books  to  show  precautions,  47. 

of  secretary  of  corporation  in  not  making  entry, 
52. 

in  filing  report  of  corporation,  770. 

of  husband  as  to  wife's  property,  169. 

to  charge  partner  with  assets,  229. 

impliea  promise  to  indemnify  for  money  paid 
for,  258. 

in  making  mistaken  payment,  269. 

in  discovering  forgery  of  check,  278. 

in  taking  transfer  of  negotiable  paper,  451. 

in  defense  of  action  for  services,  373. 

of  attorney,  378. 

not  proved  by  ill  success,  378. 

gross  negligence,  how  proved,  557. 

special  contract  to  exempt,  574. 

in  signing  contract,  443. 

of  bailee,  353,  555,  556. 

of  clerk  in  bank,  558. 

of  carrier,  571. 

of  passenger  carrier,  576. 

of  telegraph  company,  604. 

of  sheriff,  606. 

NEGOTIABLE   PAPER,  actions  on,  3S7-186. 
NEGOTIATIONS  adniissable  in  interpretation  of 
contract,  364. 

evidence  varying  terms  of  writing,  525. 
NEW  PROM  IsK  lifter  infant  becomes  of  age,  796. 

to  rebut  accord  and  satisfaction,  S14. 

to  robot  dfocturge,  821. 

to  rebut  statute  of  limitations,  823. 

conditional,  S2I. 

NEWSPAPERS,  notice  of,  as  to  facts  of  family 
history,  id.  %. 

publication  of  notice  of  dissolution  of  partner- 
ship in,  22  J. 

publication,  how  proved.  376. 

presumption  that  subscriber  read  advertisement, 
450. 

slip  submitted  with  preliminary  proofs,  490  n. 

competent  of  raising  inference  of  knowledge, 

m. 

price  current  in,  as  proof  of  market  value,  309. 

libel  in,  663. 

NOISE  as  a  nuisance,  f>12. 
NON-ACCESS,  knowledge  of  witness,  743. 
NO  N  - 1 )  K  1. 1 V  !•:  I ;  V  by  carrier,  570. 

of  package,  580. 

55 


NON-NEGOTIABLE  NOTES,  action  on,  457. 
NON-PAYMENT,  when  to  be  alleged  and  proved, 

331. 
proved  by  possession  of  note,  416. 

of  mortgage,  720. 
NON-USER,  when  incompetent  as  to  corporate 

existence,  31. 

NORTHAMPTON  TABLES,  602,  724  n. 
NOTARIAL  CERTIFICATE,  424,  etc. 
NOTARY,  diligence  of,  and  inquiry,  432. 

presumption  in  favor  of  certificate  and  official 

acts,  425. 

NOTE.  (See  BILLS,  NOTES  and  CHECKS.) 
NOTE  OF  PROTEST,  425,  etc. 
NOTICE,  or.-il  and  written,  706. 

under  statute,  772. 

to  charge  purchaser  of  lands,  716. 

to  charge  purchaser  of  chose  in  action,  8. 

to  show  knowledge  of  assignor,  11. 

to  produce  paper  in  hands  of  assignor,  14. 

of  withdrawal  of  member  from  association,  16. 

of  meetings  of  corporation,  24,  38  n.,  39  n. 

of  limits  of  officers'  authority  in  by  laws,  41  n. 

to  corporation,  how  proved,  45. 

to  officers  and  agents,  45. 

to  public  officer,  196. 

authentication  of  corporate  record  produced  on, 
49  n. 

for  proof  of  copies  of  books  of  foreign  corpora- 
tion, 50. 

of  contents  of  official  report  received  and  "  ac- 
cepted," 51. 

to  produce  books,  etc.,  of  corporation,  51. 

to  executors  and  administrators,  55  n. 

to  parties  in  interest  in  probate  proceedings,  57. 

to  produce  letters  of  administration  or  probate 
of  will,  58. 

of  will,  to  widow,  157. 

to  husband  or  wife,  to  bind  the  other,  167. 

not  to  sell  to  wife,  effect  of,  178. 

admission  of  service  of,  by  one  of  two  owners, 
187  n. 

to  one  of  two  joint  obligors,  190. 

of  dissolution  of  firm,  207. 

—burden  of  proving.  222. 

— mode  of  proving,  223. 

evidence  under  general  issne,  without,  201. 

of  lack  of  authority  to  do  business  for  firm,  214. 

of  dissent  of  partner,  217. 

of  matter  wittoin  scope  of  partnership  business, 
219. 

to  partner  after  dissolution,  220. 

of  scope  of  limited  partnership  business,  221. 

of  title  of  firm  to  premises  mortgaged  in  name 
of  one  partner,  222  n. 

of  withdrawal  of  dormant  partner,  222,  223. 

to  trustee  before  bringing  suit,  234. 

by  trustee  to  ceatul  one  trust  for  leave  to  com- 
promise claim,  235. 

of  infirmity  of  negotiable  paper.  449. 

to  transferee  of  negotiable  paper,  450. 

to  charge  indorscr,  etc. ,430. 

of  non-payment  of  check,  244.  804. 

to  produce  negotiable  paper,  390. 

of  not  being  answerable  for  work  on  ship.  2!52  n. 

of  non-payment,  in  action  for  money  paid.  -j.x. 

of  bringing  of  suit,  to  one  primarily  liable,  2f>2  ;'. 

before  payment,  to  sustain  action  for  money 
paid,  2"65. 

in  action  for  money  received,  281. 

by  telegram,  primariness  of  company's  tran- 
script to  show,  291. 

to  agent,  evidence  against  principal,  783. 

by  principal,  of  repudiation  of  aueut's  act,  263. 

of  termination  of  atrency.  300. 333. 

on  bill-head  restricting  claims  for  deficiencies, 
805. 

option  in  contract,  exercised  by  parol,  314. 

to  terminate  contract,  384. 

to  produce,  when  action  is,  377. 

to  produce,  to  admit  parol  of  indorsements  of 
payment*.  809. 

excuse  f..r  omission,  not  provable  under  aliegar 
lion  of  notice.  12:5.  •!  5. 

may  be  denied  generally  by  witness,  431. 

in  writing,  proved  by  parol,  432,  706. 


866 


GENERAL  INDEX. 


NOTICE—  Continued. 

extrinsic  evidence  to  supply  imperfection,  432. 

it  mil    necessary,  Uccd  not  be  proved,  though 
alleged.  467. 

to  insurance  agent,  480,  etc. 

of  loss  in  insurance,  4!H). 

to  quit,  under  lease,  627,  706. 

pf  action,  without  service,  547. 

to  restrict  currier's  contract,  574. 

of  carrier's  delivery,  577. 

to  carrier,  from  appearance  of  articles,  579. 

of  defect,  in  actions  for  negligence,  5^1. 

of  dangerous  character  of  animals,  645. 

of  trust,  in  securiiies,  628. 

of  suretyship,  to  creditor,  819. 

to  abate  nuisance.  <>I3. 

for  cause  for  forfeiture,  783. 

of  defence  in  patent  case,  762-765. 
NOTORIETY,  as  evidence  oi  intemperate  habit, 
778. 

— as  evidence  of  liquor  trade,  779. 
NOVELTY  of  invention,  756. 
NUISANCE,  actions  for,  640,  etc. 

former  adjudication,  643. 

damages  in  actions  for,  643. 

notice  and  request  to  abate,  643. 

notice  to  municipal  officer,  45  n. 
"NULTIEL  CORPORATION,"  proof  of  corpo- 
rate existence  under,  18. 
OATH  as  condition  of  holding  lands,  103. 

of  public  oflicer,  how  proved,  194. 

competency  of  public  officer's  uot  having  taken, 
197. 

euppletory,  of  books  of  firm,  205. 

and  bond  of  receiver,  when  presumed,  231  n. 

of  arbitrator,  466. 

OBJECTION  to  testimony  against  executor  or 
administrator,  when  to  be  made,  65.    (See 
also  OFFEB  and  TRIAL.) 
OBSTRUCTION  of  highways,  773. 
OCCUPATION  of  real  property,  action  for,  351. 

In  action  for  use  and  occupation,  353. 

declarations  as  to,  711. 
OFFER  of  evidence,  how  made,  13. 

— against  executor  or  administrator,  what  to 
show,  66  n. 

of  reward,  383. 

to  perform,  313. 

to  deliver  goods,  314. 

—in  action  for  non-acceptance,  337. 

of  buyer  to  pay,  when  excused,  338.    (See  also 

TRIAL.) 

OFFICE,  title  to  In  quo  warranto,  749. 
OFFICERS,  delegated  powers  of,  32. 

appointment  of,  51. 

ratification  of  acts  of,  under  allegation  of  au- 
thority, 32. 

ratification  by,  how  proved,  43. 

acts  of,  in  course  of  business,  32. 

allegation  of  contract  made  by  president  and 
directors,  32  n. 

impeachment  of  power  of,  82. 

presumption  of  authority  or  ratification  of  parol 
contract  of,  34. 

testimony  of,  to  show  authority,  43. 

authority  of,  when  not  presumed,  34. 

— implied  In  title  of,  48. 

— implied  scope  of,  41. 

— to  make  sale  out  of  course  of  business,  35. 

— to  cancel  mortgage,  without  consideration,  35. 

— of  minutes  to  show,  48. 

— when  called  for  by  subpoena  duces  tecurn,  51. 

— when  by  notice  to  produce,  51. 

of  corporation,  appointment  of,  40. 

— general  presumptions  as  to  conduct,  83. 

— authority  of,  40. 

— to  execute  power  of  attorney,  35. 

— to  draw  bills,  41  n. 

— power  to  direct  suit  brought,  43,  43. 

— to  convey,  42. 

— action  for  compensation,  880. 

— when  corporation  liable  for  wrongs  by,  88. 

— knowledge  of,  not  binding  on  municipal  cor- 
poration, 45  n. 

— books  of  municipal  corporations  as  to  election 


OFFICERS—  Continued. 

—notice  to,  when  to  corporation,  45. 

— corporate  record,  for  or  against,  4<i. 

—entries  by,  in  discharge  of  duty,  53. 

authentication  of  corporate  record  by,  49. 

copy  of  corporate  record,  certified  by,  50. 

signature  Of.  to  corporate  minutes,  49. 

certificate  of,  to  vote  of  corporation,  50  n. 

to  corporation,  when  competent  against  latter, 
51. 

when  need  not  be  called  before  secondary  evi- 
dence against  corporation,  51. 

questioned  as  to  iiou-record  of  assent  of  cor- 
poration, 52. 

sense  of  vote  as  understood  by,  52. 

declarations  of,  as  to  meaning  of  vote,  52. 

signature  of,  to  contract,  35. 

signing  deed,  though  to  "  attest,"  when  not 
subscribing  witness,  36. 

want  of  authority  of,  to  sign  and  seal  deed,  86. 

false  representations  in  correspondence  of,  38. 

of  what,  fact  that  one  is  acting,  is  prima  facie, 
41  n. 

de  jure,  necessity  of  ouster  by  state,  41. 

de facto,  proof  of,  193,  196. 

solemnization  of  marriage  before,  80  n. 

notice  of  limits  of  authority  in  by-laws,  41  n. 

admissions  and  declarations  of,  44. 

— when  part  of  res  gestae,  44. 

accounts  and  entries  by,  52,  53. 

of  bank,  declarations  of,  as  to  accounts,  279. 

actions  by  and  against  public,  193. 

— municipality  to  recover  money  wrongfully 
borrowed  of,  274  n. 

— against  for  advertising,  376. 

liability  for  services,  361. 

recovery  by,  for  money  paid  on  process,  249  n. 

action  by  and  against  sheriffs,  constables  and 
marshals,  605. 

justifying  levy,  631. 

competency  to  testify  to  handwriting,  395. 

decision  of  public,  as  a  former  adjudication,  829. 

executor  and  administrator,  not  public  officer, 
55. 

of  society,  testimony  of,  as  to  its  common  desig- 
nation, 143. 

of  charitable  society,  one's  having  been,  to  show 
intent  as  to  charitable  gift,  142.  (See  also 
PUBLIC  OFFICEU.) 

OFFICIAL  ACTS,  presumption  in  support  of,  543, 
702,  704.  etc. 

— as  to  regularity,  546. 

—in  case  of  notary,  425. 

bonds,  513,  516. 

character,  three  grades  of  proof  of,  193. 

— under  general  allegation  that  one  is  an  officer, 
196. 

— parol  to  show,  notwithstanding  record,  198. 

— 6y  proof  of  general  reputation,  201  n. 

—of  certifying  officer.  536  544. 

certificate,  not  conclusive  in  quo  warranto,  749, 
750. 

certificate  of  acknowledgment  or  proof,  175,  694. 

registry  of  weather,  4!M. 

seal  to  notarial  certificate,  428. 

surveyors',  699. 
OFF-SET  of  debt  against  agent's  indebtedness, 

not  payment,  800. 
"ON  ARRIVAL,"  518. 

OPINION,  processes  by  which  witness  arrives  at, 
307. 

not  equivalent  to  warranty,  340. 

proved  by  testimony  of  party,  620. 

of  experts,  when  controlling,  494. 

of  non-expert,  elements  in  weight  of,  118  n. 

as  to  existence  of  partnership.  210. 

as  to  parties  being  partners,  204. 

as  to  character  of  parties  rendering  meretricious 
connection  improbable,  84. 

when  incompetent  to  show  loan,  240. 

as  to  which  of  several  credit  was  given,  241. 

as  to  language  amounting  to  duress,  incompe- 
tent, 271. 

of  agent,  as  to  necessity  of  exercise  of  a  dis- 
cretion, 281. 

as  to  sale,  287. 


GENERAL  INDEX. 


867 


OPINION—  Continued. 

as  to  usage,  not  as  to  law,  486. 

as  to  usage  of  trade,  2i>~. 

as  to  quality  of  article,  304,  310,  347. 

as  to  value,  310,  598. 

— of  life  estate,  7:M. 

— of  attorney's  services,  378. 

— of  uervices  of  broker.  380. 

—in  actions  between  vendor  and  purchaser,  728. 

as  to  hire  of  chattels,  3.">(>.     ' 

to  construction  of  contract  as  to  performance, 
371. 

on  value  of  advertising,  376. 

as  to  likeness,  377. 

as  to  compensation  of  writer,  377. 

as  to  profit  of  voyage,  384. 

as  to  competency  of  crew,  496. 

as  to  seaworthiness,  498. 

as  to  rating  of  ship,  498. 

as  to  handwriting,  393,  396,  etc. 

— in  signature,  501. 

—to  will,  113. 

as  to  seal,  506. 

as  to  damages,  511. 

as  to  waiver,  4!H. 

in  insurance  case,  493. 

in  actions  for  negligence,  586,  600. 

as  to  waste,  534. 

as  to  care  and  diligence,  561. 

as  to  injury,  594. 

as  to  cause  of  injnry,  571. 

as  to  injury  to  passenger,  580. 

as  to  solvency,  617. 

as  to  title,  727. 

as  to  sanity,  734. 

as  to  mental  soundness  of  testator,  116. 

— by  expert,  116. 

to  prove  inadequate  consideration,  738. 

of  public  officer  as  to  violation  of  law,  772  n. 

as  to  injury  by  assault,  649. 

as  to  adultery,  745. 

respecting  age  of  person,  87. 

not  proof  of  necessaries,  178. 
OPPORTUNITY,  circumstantial  evidence  of  adul- 
tery, 744. 
ORAL  admissions  of  assignor,  12. 

— of  incorporation,  28. 

— of  payee,  258. 

— of  debtor  to  show  part  payment,  824. 

— of  married  woman,  182. 

— to  convey,  parol  declarations  to  show,  158. 

— varying  mortgage,  721. 

agreement  on  matter  as  to  which  writing  is  si- 
lent, 205. 

— for  accounting  and  settlement  by  partners, 
230. 

appointment  of  public  officer,  194. 

assurance  to  buyer  as  a  warranty,  341. 

authority  of  officer  or  agent  of  corporation,  43. 

consent  of  husband  to  wife's  conveyance,  174. 

contracts  by  agents  of  corporation,  34.   (See  also 
STATUTE  OP  FRAUDS.) 

declarations  not  amounting  to  estoppel,  13. 

— of  deceased  rebutted  by  counter  written  decla- 
rations, 70  ». 

— as  hearsay  as  to  facts  of  pedigree,  90. 

of  facts  of  family  history,  primariuess  of,  96. 

— of  declarations  of  family,  93. 

no  part  of  testamentary  acts,  129. 

of  ancestor  as  to  title,  158,  711. 

defeasance  of  debt,  722. 

demand,  when  competent,  266. 

evidence  as  to  mode  of  payment,  9  n. 

— of  title  of  assignee  in  bankruptcy,  9. 

— to  impeach  assignee's  title,  8. 

— to  vary  assignments,  7. 

— to  vary  schedules  in  assignment,  6. 

— not  to  vary  unsealed  contract  of  corporation, 

84. 
— of  authority  of  agent  of  corporation  to  execute 

deed.  :»i 
—of  presentation  to  and  approval  by  corporate 

board  of  bond  or  deed,  37. 
— where  corporate  contract  is  ambiguous  as  to 

party,  3?. 
—of  acts  of  private  corporations,  39. 


ORAL—  Continued. 

— of  existence  and  membership  of  voluntary  as- 
sociations, 15. 

— of  filing  of  certificate  of  incorporation,  25, 
— of  special  contract  completed,  »;•>. 
— to  vary  written  contract  for  services,  364-368. 
— as  to  purchase  money,  385. 
— of  promise  to  pay  incnmbrances,  385, 
—to  explain  promise  to  third  person  to  pay  plain- 
tiff, 38K. 
— to  show  whether  name  was  signature  or  not, 

391. 
—to  vary  proof  of  contents  of  lost  instrument, 

391.      ' 

— to  show  real  party  to  negotiable  paper,  402. 
— as  to  consideration  of  negotiable  paper,  441. 
— as  varying  negotiable  paper,  409. 
— to  vary  indorsement,  414. 
— to  explain  irregular  indorsement,  437. 
— to  explain  acceptance,  419. 
— to  vary  place  of  demand,  424. 
— to  qualify  certificate  of  protest,  426. 
— to  vary  bank  check,  453. 
— to  explain  non-negotiable  paper,  457. 
—to  explain  insurance  notes,  456. 
— to  explain  preliminary  agreement  for  insur- 
ance, 477. 

— to  explain  application  or  policy,  479,  etc. 
— to  explain  policy,  499,  etc. 
—to  vary  policy,  483. 
— to  show  real  party  in  interest  in  insurance 

policy,  487. 

— to  enow  consideration  for  writing,  405. 
—to  explain  consideration,  741. 
— of  notice  given  in  writing,  432. 
— to  explain  written  wniver,  436. 
— to  show  alteration,  407. 
— to  show  intended  medium  of  payment,  410. 
— to  show  place  of  payment  in  written  contract, 

411. 

— to  explain  submission  and  award,  466-170. 
— to  vary  award,  468. 
— of  guaranty,  471. 

— to  show  consideration  of  guaranty,  473. 
— to  vary'guaranty,  473.  etc. 
— to  eke  out  contract  under  Statute  of  Frauds, 

471. 

— that  others  should  sign,  507. 
— to  vary  sealed  instrument,  508. 
— to  show  mistake  of  fraud,  512. 
— to  vary  charter  party,  517. 
— to  vary  lease,  524,  etc. 
— to  explain  ambiguous  designation  in    lease, 

527. 

— to  prove  date  and  term  of  lease,  527. 
— to  explain  writing  competent  against  stranger, 

484. 
— to  vary  writing  in   actions  against   bailees, 

etc.,  553. 
— to  vary  writing  in  actions  against  agents,  etc., 

553. 

— to  explain  instructions  to  carrier,  565. 
— to  vary  bill  of  lading  or  receipt,  573. 
—money  receipt,  807. 
— to  vary  passage  ticket,  581. 
— of  misrepresentation,  collateral  to  a  writing, 

619. 

—to  explain  deed,  6%,  etc. 
— to  vary  deed,  691,  etc. 
—of  lost  deed,  709. 
— to  vary  land  patent,  705. 
—to  explain  record  of  former  adjudication.  S.H3. 
— to  connect  new  promise  with  original  debt. 

824. 

— as  to  release,  818. 
— to  vary  mortgage.  fii">. 
—of  contract   between  vendor  and  purchaser, 

725. 
—to  explain  contract  between  vendor  and  pur- 

cuaser.  7','ti. 
—not  admissible  to  contradict  recognizances, 

784. 

—in  respect  to  ballot.  749. 
—to  qualify  patent,  etc.,  756,  etc. 
—of  plaintiff's  title  in  action  for  specific  per- 
formance, 731. 


868 


GENERAL  INDEX. 


ORAL—  Continued. 

— partly  performed,  specific  performance  of,  730. 
— of  contract  in  action  for  s peciflc  performance, 

730.    (See  also)  PUIMARINESS. 
representations  us  an   estoppel  from   proving 

usury,  702. 
ORDEK,  in  favor  of  third  person,  as  proof  of 

payment,  259. 

assumption  of,  originally  given  by  a  third  per- 
son, 802. 

when  proof  of  agreement  of  sale.  291. 
for  delivery  of  goods,  when  evidence  of  deliv- 
ery, 315. 

for  goods  in  action  for  non-delivery,  337. 
of  court,  and  df«l  pursuant  to  it,  701. 
as  former  adjudication.  831. 
ORDINANCE,  illegality  of,  in  proceedings ,  to 

enforce,  20. 

violation  of,  as  evidence  of  negligence,  590. 
of  municipal  corporations,  how  proved,  770. 
ORIGINAL  INVENTOR,  patentee  the,  757. 
OUSTER  in  ejectment,  714. 
OVERSEERS  of  poor,  774. 
OVERVALUATION  in  insurance,  494. 
OWNER,  executors  and  administrators,  not,  54. 
declarations  of  former.    (See  ADMISSIONS  AND 
DECLARATIONS.) 
OWNERSHIP,  how  proved,  590. 
general  repute  as  to,  in  proof  of  title,  159  n. 
proved  by  leasing,  779. 
•when  joint,  equivalent  to  partnership,  210. 
presumptive  evidence  of  possession,  425. 
of  thing  insured,  487. 
acts  of,  by  buyer,  to  show  delivery,  819. 
of  thing  causing  injury,  590. 
of  thing  injured  by  negligence,  594. 
of  thing  converted,  623. 
of  real  property  in  trespass,  634. 
of  plaintiff  in  replevin,  688. 
of  wife's  property,  780. 
of  patent,  762. 
PACKAGE,  what  is,  579. 

actions  for  loss  of,  577,  etc. 
PAIN,  how  proved,  599,  678. 
PARAMOUNT  title,  521. 
PARAMOUR  as  a  witness,  747.  , 

PARENT  AND  CHILD,  emancipation  of  child, 

64  n. 

living  together  as,  proof  of  issue,  87. 
declaration  of  one  against  the  other,  589. 
testimony  and  declarations  of   parents  as  to 

legitimacy  of  child,  89. 
citizenship  of  parent,  102. 
domicile  of  parent,  that  of  minor  child,  105. 
as  to  ademption  of  legacy  to  child,  148. 
presumption  as  to  advancement  to  child,  150. 
deed  from  parent  to  child,  as  an  advancement, 

152. 
purchase  by  parent  in  name  of  child,  to  show 

an  advancement,  152. 
money  given  to  son  to  purchase  a  farm,  when 

an  advancement,  153. 

implied  promise  to  pay  for  maintenance,  379. 
services  between,  359. 
action  for  wages,  382. 

action  for  enticing  away  child  from  service,  681. 
PART  PAYMENT,  as  an  admission  of  demand 

and  notice,  434. 
in  full,  807. 

to  suspend  statute  of  limitations,  824. 
PARTIAL  FAILURE  admissible    under   allega- 
tion of  total,  442, 
PARTIES,  contract  of  corporation  ambiguous  as 

to,  37. 

interested,  against  estate  of  deceased,  61. 
excluded,  against  executors  and  administrators, 

62. 

when  "  party  "  includes  one  in  interest,  63  n. 
what  persons  protected  by  exclusion  of  inter- 
ested, 64. 

to  personal  transaction  or  communication,  68. 
to  identify  shop  books,  69  n. 
objecting    to    transaction    with   deceased    or 

lunatic,  69. 

contradiction  by,  of  transactions  with  'deceased, 
70  n. 


PARTIES—  Continued. 

rule  in  U.  8.  Courts  as  to  exclusion  of  transac- 
tions with  deceased,  70. 
a  witness  of  marriage,  fcO. 
right  to  rebut  evidence  of  other,  132. 
in  joint  or  common  interest  or  liability,  186. 
joint  liability,  187. 
admissions  a'nd  declarations  of,  188. 
declarations  of  conspirators,  191, 
non-joinder  of  co-partners  as  plaint  iff  c,  205. 
non-joinder  of  partners  as,  in  abatement,  221. 
to  joint  adventure,  power  of  one  to  borrow  for 

all,  242. 

admissibility  of  account  books  of,  245. 
parol  to  show  suretyship,  254,  818. 
—to  explain  relation  of,  263. 
— to  show  relation  of  principal  and  agent  be- 
tween, 280. 

—to  show  true  party,  509. 
—to  show  real  party  to  contract,  274. 
— to  show  real  party  in  interest,  295. 
shop  books  and  other  accounts  of,  322. 
may  testify  to  opinion  in  his  own  behalf,  369, 

8?7. 

incapacity  of,  must  be  alleged,  440. 
plaintiff,  not  real  holder  or  owner,  443,  786. 
real  party  in  interest  in  insurance  policy,  487. 
to  show  real  parties  in  a  lease,  353,  525. 
authority  of  to  recover  on  lease,  525. 
identjty  of,  in  actions  on  judgment,  538,  539. 
identity  of,  in  deed,  695. 
may  testify  to  himself,  599. 
may  be  examined  as  to  fraud  and  deceit,  620. 
—as  to  infringing  trade  mark,  753. 
incapacity  of,  in  abatement,  786. 
who  affected  by  former  adjudication,  829. 
testimony  of,  in  divorce,  747. 
PARTITION,  actions  of,  723. 
PARTNERS,  actions  by,  203. 
— allegation  of  partnership,  203. 
— proof  of  partnership,  204. 
— parol  evidence  to  vary  contract,  204. 
— Buppletory  oath  of,  to  entries  in  firm  books, 

205. 

declaration  by  one  thnt  he  is,  187. 
—declarations  of,  in  favor  of  firm,  205. 
— defendant's  evidence,  205. 
— matter  in  abatement,  205. 
actions  against,  206. 
— allegation  of  partnership,  206. 
— best  and  secondary  evidence,  207. 
—signing  his  name  "  &  Co.,"  to  contract,  207  n, 
— holding  out  to  the  public  as,  208. 
— representations  to  particular  creditor  as,  209. 
— admissions  and  declarations  to  show,  209. 
—dormant  and  secret,  210. 
— evidence  in  respect  to  date  of  charge,  212. 
— assumption  of  debts  by  incoming,  213. 
—variance  as  to  number  of,  213. 
— presumption  of,  authority  of,  214. 
— ratification  of  act  of,  217. 
— deceit  or  fraud  by  one,  217. 
— books  by,  within  scope  of  business,  217. 
— admissions  and  declarations  of,  218. 
— rules  peculiar  to  surviving  partners,  224. 
actions  between,  226. 
— on  account  stated,  460. 
— order  of  profs,  227. 

—books,  &c.,  of  partnership  as  evidence,  229. 
voluntary  settlement  by,  230. 
promise  by,  after  dissolution  insufficient  against 

others,  252. 

payment  by.  presumed  with  firm  money,  264. 
accounting  for  money  received  after  withdrawal 

of  one,  280. 

entries  made  by,  how  proved,  324,  325. 
receipt  of  payment  by  one,  800. 
payment  by  obligation  of,  806. 
note  to,  by  creditor  after  dissolution,  818. 
knowledge  of  one,  evidence  against  another, 

772. 
each  other's  agents  for  purpose  of  admissions, 

189  n.    (See  also  PARTNERSHIP.) 
PARTNERSHIP,  partner  as  witness,  64  n. 
action  by  partners,  allegation  of,  203. 
—proof  of,  204. 


GENERAL  INDEX. 


869 


PARTNERSHIP-  Continued. 
— parol  to  vary  contract  sued  on,  204. 
— firu»  books  as  evidence  in  favor  of  firm,  205. 
— declarations  of  partners,  205. 
— defendant's  evidence,  205. 
—matter  in  abatement,  20">. 
actions  against  partners,  206. 
— allegation  of,  in,  2UG. 
—proof  of,  206. 

—best  and  secondary  evidence,  207. 
— pai'ol  to  prove  existence  of,  before  articles  of, 

20?. 

— indirect  evidence  of,  207. 
—holding  out  to  the  public  as  evidence  of,  208. 
— admissions  and  declarations  to  prove,  209. 
—hearsay,  210. 

— defendants'  evidence  to  disprove,  220. 
— matter  in  abatement,  221. 
actions  by  survivor,  224. 
actions  against  survivor,  225. 
actions  against  representatives  of  deceased  part- 
ner, 225. 

actions  between  partners,  226. 
— allegation  andooiden  of  proof  of,  226. 
—order  of  proof  in,  227. 
—firm  or  individual  transactions,  228. 
joint  purchase  or  ownership  when  equivalent 

to,  210. 

dormant  and  secret  partners,  210. 
community  of  profits  ;  the  common  law  rule, 

211.     " 

—the  English  rule,  212. 
cases  in  which  participation  in  profits  no  proof 

of,  211  ;t,  212  n. 

evidence  in  respect  to  date,  212. 
assumption  of  debts  by  incoming  partner,  213. 
variance  as  to  number  of  partners,  213. 
presumption  of  partner's  authority,  214. 
express  authority,  214. 
scope  of  business,  214. 
question  to  whom  credit  was  given,  215. 
parol  to  charge  flrm  on  individual  signature,  216. 
when  bound  by  scaled  instrument  as  a  simple 

contract,  216. 

ratification  of  act  of  partner,  217. 
deceit  or  fraud  by  one  partner,  217. 
torts  by  one  partner  within  scope  of  business, 

217. 

admissions  and  declarations  of  partners,  218. 
acts,  admissions,  etc.,  after  dissolution,  218. 
notice,  tender  and  demand,  219. 
proving  limited,  220. 
known  want  of  authority,  222. 
transactions  in  the  interest  of  one  partner,  222. 
burden  of  proving  dissolution  and  notice,  222. 
mode  of  proving  dissolution,  223. 
rules  peculiar  to  surviving  partners,  224 
title  to  real  property,  228. 
charging  member  with  assets.  229. 
evidence  to  credit  member  with  payments  or 

share,  229. 

books,  etc.,  as  evidence,  229. 
voluntary  settlement  by  partners,  230. 
•when  to  be  shown  in  action  for  money  received, 

275. 

signature,  how  proved,  400. 
presumptions  as  to  consideration  of  negotiable 

paper,  400. 

proved  by  production  of  flrm  contract,  401. 
fraud  by,  615.     (See  also  PAUTNEUS.) 
PASS  for  passenger,  578. 
PASS  BOOK,  competency  of,  326. 

us  an  account,  stated.  459. 
PASSENGER,  action  for  injury  to,  577,  etc. 

list,  5TH. 

PATENT,  power  of  corporation  to  acquire,  33  n. 
actions  foi-  infringement,  755,  etc. 
for  lan.1,705. 
PAYMENT  distinguished  from  "  taking  up,"  449, 

430. 

E  leading,  446,  798. 
urden  i>f  proof,  446,  798. 
—  in  case  of  collateral  security,  9. 
oral  evidence  to  prove,  258. 
—as  to  agreed  mode  of,  9  n. 
— res  gcthE,  799. 


PAYMENT-  Continued. 

by  crediting  in  pass-book,  13. 

by  one  co-representative  to  revive  debt,  59  n. 

to  or  by  deceased,  67  /». 

to  ancestor,  69. 

of  insurance  of  ship,  to  prove  death,  74. 

of  legacy  during  testator's  life,  14!i. 

acknowledgment  of,  in  deed,  not  an  advance 
ment,  152. 

by  parent  for  conveyance  to  child,  to  show  an 
advancement,  153. 

by  delivery  of  money  or  chattels  to  child  by 
parent,  154. 

by  husband  to  wife,  172. 

wife's  admissions  of,  for  her  services,  176. 

to  charge  separate  estaie  of  wife,  184. 

partner  not  agent  to  remove  statute  of  limita- 
tions, 189  n. 

evidence  to  credit  partner  with,  229. 

to  establish  resulting  trust,  238. 

by  delivery  of  money,  239,  243,  799. 

of  money  to  use  of  defendant,  249. 

intent  of,  to  show  to  whom  credit  was  givem, 
241. 

by  check,  244,  259,  803. 

by  note,  etc.,  of  debtor  or  third  person,  804. 

by  obligation  of  joint  debtor,  806. 

by  delivery  of  property,  264,  806. 

account  books  to  show,  245. 

to  sustain  action  for  money  paid,  250. 

to  sustain  promise  to  reimburse,  251. 

of  another's  debt,  252. 

by  mistake,  reimbursement  for,  254  n. 

by  surety  under  fixed  legal  liability,  256. 

in  action  for  money  paid,  258. 

order  in  favor  of  third  person,  259. 

receipt  or  surrender  of  evidence  of  debt  to  show, 
260,  800,  etc. 

medium  of,  263, 277,  799. 

— in  commercial  paper,  410,803,  etc. 

source  of  the  fund  paid,  264. 

object  and  application  of,  265,  811. 

illegality  of,  266. 

by  mistake,  what  to  be  proved,  268. 
•  under  duress,  270. 

as  evidence  of  receipt  of  money,  275. 

to  agent,  276,  800. 

to  avoid  statute  of  frauds,  292. 

memorandum  of  sale  as  to  rnteof,  293. 

different  from  that  acknowledged,  295. 

on  account,  eflect  of  as  to  price  of  goods,  806. 

time  for,  312. 

—how  proved,  409. 

place  of  intended  payment  for  commercial  pa- 
per, 4!1. 

and  delivery,  when  presumed  concurrent,  313. 

stipulation  for  "  cash  on  bill    f  lading,"  317  n. 

to  satisfy  statute  of  frauds,  319. 

draft  as  demand  of,  331. 

as  to  receipt  of  negotiable  pnper  in,  331. 

of  counterclaims  proved  from  defendant's  book, 
336. 

readiness  to  make,  338. 

by  aji-nt  to  principal,  339. 

of  negotiable  paper,  warranty  of  no  knowledge 
of,  310. 

of  compensation  for  services,  375. 

of  child's  wages  to  child,  3M2. 

in  part,  evidence  of  assent,  to  alteration.  408. 

of  part  as  an  accord  and  satisfaction,  si  i. 

to  take  debt  out  of  statute  of  limiiations,  824. 

indorsement  acknowledging  part,  825. 

indorsement  for  purposes  of,  414. 

—as  evidences  of,  415. 

possession  of  instrument  and  indorsements  to 
show,  809. 

presumptions  arising  from  possession  of  secur- 
ity, 416  n.,  801. 

by  new  note,  44(i,  b04, 

of  postage,  4.'fci. 

production  of  instrument.  446 

of  insurance  prrinhini.  isi. 

of  rent  in  actions  on  ItNisr,  .Vd. 

of  previous   installments  of  rent  presumed,  533, 
809. 

of  judgment  proved  by  parol,  539. 


870 


GENERAL  INDEX. 


PAYMENT  -  Continued. 

of  taxes,  704. 

&a  evidence  of  obligation  or  title,  723. 

of  consideration,  disproof  of,  7KS  n. 

guaranty  of,  no  estoppel  from  proving  usury,  792. 

assuming,  as  estoppel  from  proving  usury,  792. 

of  bonus,  to  show  usury,  793. 

autliority  to  pay,  800. 

— to  rece'ive,  from  possession  of  security  ,&c.,  801. 

— of  agtnt  to  receive,  800. 

to  assignor,  802. 

to  executors,  trustees,  &c.,  802. 

to  sheriff,  802. 

by  mail,  803. 

of  collateral,  806. 

part  as  payment  in  full,  807. 

presumption  of,  from  subsequent  transactions, 
809. 

—from  lapse  of  time,  731,  812. 

circumstantial  and  corroborative  evidence  of, 
810. 

application  by  debtor,  810. 

— by  creditor,  811. 

— by  the  court,  811. 

receipt  to  show,  806. 

may  be  proved  without  producing  receipt,  742. 

of  price  in  action  for  specific  performance,  730. 

admissions,  entries  and  memoranda  to  show, 

808. 
PEDIGREE,  declarations  as  to  facts  of,  87. 

direct  testimony  to  age,  when  a  fact  of,  87. 

relationship  by  marriage,  dissolved  by  death, 
91  n. 

testimony  competent  within  rule  as  to,  89. 

hearsay  as  to  facts  of,  90. 

—grounds  of  receiving  and  weight  of,  90. 

— what  within  rule  of,  90. 

relationship  dissolved  by  death,  91  n. 

what  connection   with  family  to  admit  declara- 
tions as  to,  92. 

registry  of  facts  of,  97. 

judicial  records  showing  facts  of,  100. 

competency  of  judgments,  and  verdicts  as  to 
facts  of,  100.    (See  also  FAMILY  HISTOBT:) 
PENALTY  or  liquidated  damages,  511. 

actions  for,  770. 
PENDENCY  OF  ACTION  as  notice,  717. 

as  a  defense,  786. 
PERFORM  ANCE  of  contract  for  services,  370. 

non-performance  and  excuse,  noi  admissible, 
511. 

of  charter  party,  actions  for,  518. 
PERIL,  insured  againsi,  488,  eic. 

in  case  of  carrier's  loss,  5b9. 

affecting  testimony  of  witness,  598. 
PERJURY,  need  not  be  proved  beyond  a  reason- 
able doubt,  495,  671. 
PERSON,  identity  of,  when  presumed,  398. 

injured,  condition  of,  594.    (And  see  IDENTITY.  1 
PERSONAL   PROPERTY,    actions  for  trespass 
to,  629.  etc. 

—to  recover  possession  of,  688,  etc. 
PHOTOGRAPHER,  as  witness   to  handwriting, 

398. 

PHOTOGRAPHS,  as  evidence  of  identity  of  per- 
son, 102. 

of  signatures  to  will,  to  aid  experts,  113. 

as  evidence  of  handwriting,  3y8. 
PHYSICAL  injury,  598. 

PHYSICIAN  incompetent  to  prove   services  to 
deceased,  69. 

testimony  or  account  of,  as  evidence  of  birth,  87. 

when  competent  as  to  mental  capacity  of  testa- 
tor, 117  n. 

to  show  causes  of  separation,  179. 

action  for  compensation,  358,  382. 

privileged  communications  to,  501,  744. 

testimony  to  injuries,  600. 
PLACE  in  determining  market  value,  308. 

of  publication  of  libel,  663. 

of  directing  notice  of  protest,  431. 
PLACE-HIKE,  562. 
PLEA  of  guilty,  746. 

PLEADING,  particular  allegation  does  not  nullify 
general  allegation,  374. 

performance  of  condition  precedent,  423. 


PLEADING—  Continued. 

recital,  a  sufficient  allegation,  514. 

uncertainty  as  to  ground  of  action,  559. 

counterclaim,  835. 
PLEDGE  of  negotiable  paper,  444,  448  not«i 

held  by  broker,  558. 

action  against  pledgee,  561. 
POLICY  of  insurance,  action  on.  478,  etc. 
POLL  LIST,  750. 
POSSESSION,  how  proved,  590,  623. 

of  evidence  of  debt,  5. 

under  ancient  will,  128. 

by  parent  of  property  purchased  in  name  of 
child,  153  n. 

by  donee  of  money  referred  to  in  will,  160. 

of  ancestor,  156,  157. 

declarations  of  ancestor  in  possession,  157,  711. 

under  a  will,  159. 

joint  interest  in,  159. 

by  husband  or  wife,  168.  169,  172. 

change  of,  between  husband  and  wife.  172. 

husband's  intent  to  reduce  wife's  biooerty  to, 
173,  176. 

by  husband  of  instrument  executed  by  wife,  182. 

declaration  when  admissible  from  joint,  189. 

of  mortgaged  premises  by  line,  222  n. 

action  for,  by  surviving  partner,  Ji25. 

by  receiver  without  title,  fe31. 

of  money  by  trustees,  235. 

by  buyer  as  showing  acceptance  of  terms  cr» 
sale,  288. 

proved  by  acts  and  declarations,  355. 

of  evidence  in  action  for  work  on  the  property, 
360. 

taking  possession  not  admission  of  perform- 
ance, 371. 

of  negotiable  paper,  389. 

—as  proof  of  delivery,  404. 

by  defendant,  of  the  instrument  sued  on,  419. 

presumptive  evidence  of  control,  425. 

as  evidence  of  payment,  446. 

title,  presumptive!  evidence  of,  425. 

as  evidence  of  title,  623,  692. 

—of  notice  of  title,  717. 

— of  title  to  ship,  4S7. 

of  sealed  instrument,  evidence  of  delivery,  507. 

actions  on  covenants  for  quiet,  520. 

not  essential  in  actions  on  lease,  528. 

of  personal  properly  in  case  of  trespass,  629. 

— when  badge  of  fraud,  737. 

of  specific  personal  property,  actions  to  recover, 
688,  etc. 

of  real  property,  actions  to  recover,  691. 

in  actions  tor  trespass,  635. 

as  evidence  of  title  in  replevin,  689. 

characterized  by  admissions  and  declarations, 
711. 

by  defendant  in  ejectment,  714. 

of  security  to  show  authority  to  receive  pay- 
ment, 801. 

change  of,  in  action  for  specific  performance, 
730. 

deed  void  for  adverse,  710. 

adverse,  in  ejectment,  715. 

continued,  evidence  of  fraud,  741. 

of  plaintiff,  in  cases  of  nuisance,  640. 
POSSIBILITY  of  issue  extinct,  724  n. 
POSTAGE,  presumed  paid.  433. 
POSTING  foreclosure  advertisements,  701. 

of  ordinance,  771. 

of  libel,  663. 
POSTMAN,  presumption  as  to  delivery  of  letters, 

POSTMARK,  of  what  prima  facie  evidence,  94, 

291. 
POST  OFFICE,  placing  letter  in,  as  evidence  of 

its  receipt.  291. 

PORTSMOUTH  TABLES,  724  n. 
POWER,  evidence  as  to  execution  of,  150. 
of  agent  by  vote  or  resolution,  41. 

—  authority  of  president  of  corporation  to  exe> 

cute,  35. 

—  by  married  woman,  174  n. 

—  to  execute  deed,  696. 

—  not  necessary  to  produce,  478  n. 
of  clerk  acting  as  officer,  43. 


GENERAL  INDEX. 


871 


POWER—  Continued. 

of  executor  and  administrator,  how  derived,  54. 
of  "  financial  agent,"  43. 
of  husband  as  agent  of  wife,  182. 
of  married  woman  to  make  contract,  181. 

—  to  till  blank  in  deed,  unacknowledged,  175  n. 
of  municipality  to  issue  bonds,  452. 

of  officers  to  direct  suit  brought,  42,  43. 

—  impeachment  of,  32. 

of  partner  to  acknowledge  debt  barred  by  the 

statute,  219  n. 

of  president,  secretary  and  cashier  to  convey,  42. 
of  public  officer  to  sustain  private  action,  199. 
tort  by  partner  in  exercise  of  implied,  217.  (And 

nee  AUTHORITY.) 
PRACTICAL  CONSTRUCTION  of  contract,  509. 

or  lease,  526. 

PREGNANCY,  preceding  marriage,  P9. 
PRELIMINARY  agreement  for  insurance,  476. 

proofs  in  insurance,  489,  etc. 
PREMISES,  how  identified  in  actions  on  lease, 

527. 

in  deed,  697-009. 
destruction  of  leased,  532. 
PREMIUM  notes  to  insurance  company,  455. 
PREPONDERANCE  of  evidence,  rule  of,  in  civil 

cases,  495,  071. 
PRESCRIPTIVE  right  must  be  pleaded,  638. 

—  as  against  nuisance,  643. 
PRESENTMENT,  proved  by  acceptance,  420. 
PRESIDENT,  of  corporation,  compensation  of, 

381. 
PRESUMPTION,  that  occupation  continued,  353. 

—  of  continuation  of  occupation,  353. 

—  of  continuance  of  agency,  482. 

—  of  probable  continuance  of  injury,  600. 

—  of  continuance  of  character,  674. 

of  contjnuance  of  pendency  of  action,  786. 

of  continuation  of  adultery,  744. 

of  continuance  of  corporation,  750. 

of  identity  of  person,  398. 

relative  to  commercial  paper,  398,  etc. 

in  aid  of  official  acts  of  notary,  425. 

of  innocence  in  civil  cases,  495,  671. 

of  payment  of  previous  installments,  533. 

in  favor  of  jurisdiction  on  judgment  of  sister 
state,  544. 

of  discharge  of  legal  duty,  556. 

of  grant  of  easement.  640. 

of  regularity  of  official  acts,  702. 

of  regularity  in  tax  title,  7(>4. 

of  payment  from  lapse  of  time,  812. 

as  to  account  srated,  815. 

(See  more  fully  the  particular  subjects  of  pre- 
sumption.) 
PRIMARINESS,  of  assignment  in  writing,  6. 

— in  bankruptcy,  9. 

— to  purchaser  from  assignee  in  bankruptcy,  9. 

— for  benefit  of  creditors,  10. 

of  record  of  organization  of  bank,  22. 

of  original  Certificate  incorporation,  25. 

of  unsealed  contract  of  corporation,  34. 

of  certified  copy  of  resolution  authorizing  exe- 
cution of  corporate  deed,  3(i. 

of  evidence  of  keeper  of  record  as  to  non-record 
of  fact.  39. 

of  original  book  or  paper  containing  by-laws,  40. 

of  statutory  record  of  corporation,  46. 

of  record  of  corporate  proceedings,  47  n.,  48,  50. 

of  letters  testamentary  and  of  administration, 
56. 

of  decree  of  probate  or  certified  copy  of  let- 
ters, 58. 

of  probate  of  domestic  wills.  109. 

— of  will  a*  to  lauds  and  probate  as  to  person- 
alty, 109  n. 

of  foreign  will  in  question  of  title,  128. 

of  ancient  will,  128. 

of  cohabitation  and  repute,  as  evidence  of  mar- 
riage, si. 

of  registers  as  to  facts  of  family  history,  99. 

of  officer's  certificate  of  acknowledgment    by 
married  woniim,  174. 

of  written  appointment  of  public  officer,  194. 

of  decree  of  divorce,  179. 

of  record  of  legal  proceedings,  558. 


|  PRIMARINESS—  Continued. 

of  record  to  prove  judgment,  802. 

of  process  and  record  of  judgment  or  decree, 
202. 

of  legal  process,  554,  606. 

of  execution  to  show  issue  and  return,  736. 

of  record  of  former  adjudication.  831. 

of  letter  containing  demand  on  joint,  debtor,  265. 

of  duplicate  original  letter,  2!;ii. 

of  account  of  a  party  offered  in  his  own  favor, 
322. 

of  book  of  original  entries  in  party's  accounts, 
323. 

of  account  kept  by  a  party,  in  his  own  favor,  325. 

of  copy  of  notary's  certificate,  428. 

of  memorandum  of  account,  461. 

of  publication,  664. 

of  special  statutory  proceedings,  701. 

of  receipts,  806. 

of  receipt  for  property  in  payment,  799. 

of  writing  referred  to  in  agreement  to  pay,  243. 

of  written  agreement  to  pay  money  loane'd,  243. 

of  principal's  admission  that  money  was  prop- 
erly paid,  800. 

of  bank-book  or  pass-book,  245. 

of  receipt  given  by  payee,  for  payment,  261  n. 

of  written  contract,  272,  287. 

of  correspondence  embodying  contract,  292. 

of  letters  or  telegrams  containing  agreement  of 
sale.  290. 

of   original   message   delivered    to    telegraph 
company,  290. 

of  company's  transcript  of  telegram  to  show  no- 
tice to  receiver,  291. 

of  municipal  ordinance,  770. 

of  passenger  list,  578. 

of  articles  of  partnership,  207,  226.     (See  also 
ORAL  EVIDKNCE.) 

primary  evidence  of  tenancy,  352. 

of  negotiable  paper,  390. 

of  signature,  393. 

of  pendency  of  action,  786. 

PRINCIPAL    AND    AGENT,    actions    against 
agents,  557.  etc. 
(And  see  AGENT  and  AGENCY.) 
PRINCIPAL  AND  SURETY,  defendant  a  surety, 
445,  813. 

declarations  and  admissions,  513. 
PRINT  on  ballot  controlled  by  writing,  750. 
PRINTED  description  of  invention,  763. 
PRIOR  knowledge  of  invention,  703. 
PRIVILEGE.    (See  WITNESS.) 
PRIVILEGED  COMMUNICATION,  when  attor- 
ney  who   drew   articles  of   copartnership, 
privileged,  226  n. 

in  libel.  667,  670. 

PRIVITY  between  deceased  and  disqualified  wit- 
ness, 68. 

of  contract,  in  action  for  money  received,  275. 

— in  case  of  negligence,  r>s:!. 

in  action  for  use  and  occupation,  351. 

effect  of  former  adjudication  on  parties  in,  830. 
PROBABLE  CAUSE  in  malicious  prosecution, 
653,655. 

for  seizure  and  forfeiture,  783. 
PROBABLE  DURATION  of  life.  002. 
PROBATE  decree,  an  adjudication,  58  ri. 

—how  far  conclusive,  110. 

domestic  will  proved  by  producing,  109. 

to  prove  foreign  will,  128. 

letters  as  source  of  power,  54. 

of  will,  when  to  be  produced,  56. 

—notice  to  produce.  :.s. 

paper  imperfectly  showing,  when  competent, 
58  n. 

weight  of  admission  of  oxecntor  before,  59  n. 

proceeding,  exclusion  of  interested  witness  or 
party,  lit  ;/. 

of  ancient  instrument,  94. 

decree  of,  when  proof  of  facts  of  family  his- 
tory. 100. 

PROCESS  as  cause  of  action  by  public  officer, 
197. 

allegation  of  collection  of  money  on,  198. 

neglect  of  officer  to  execute,  199. 

as  a  protection  to  a  public  officer,  201. 


872 


GENERAL  INDEX. 


PROCESS—  Contin  ued. 

primary  evidence.  .Vil. 

11  n lawful  levy  of,  (530. 

in  f«Ne  imprisonment,  657. 
PRODUCTION  of  special  contract  In  action  for 
services,  862. 

of  negotiable  paper  sued  on,  389. 

of  negotiable  instrument  on  making  demand, 
4-25. 

of  account  stated,  460. 

PROFITS,  participation  in,  as  proof  of  partner- 
ship, 210.  ail.  ail  n.,  212  n. 

community  of,  the  common  law  rule,  211,  211  n., 
212  n. 

—the  English  rule,  212. 

— showing  partnership,  220. 

loan  with  share  in,  2~M. 

apportioning  in  final  accounts  between  partners, 

of  continuous  partnership  enterprise,  229. 

recovered  as  money  received,  280. 

mesne,  in  ejectment,  714. 

probable  profits  of  voyage,  884. 

proved  without  producing  account,  384. 
PROMISE  to  marry  mistress,  82. 

partner  not  agent  to  take  out  of  statute  by 
189  n. 

to  pay  indefinite  share,  not  competent  of  part- 
nership, 211  r>. 

by  partu*  r  after  dissolution,  219. 

to  repay  money  lent,  239. 

to  pay,  parol  to  vary  written,  243. 

to  reimburse,  249,  250,  251. 

to  repay  what  defendant  ought  rather  to  have 
paid,  253. 

— money  paid  nnder  mistake,  270. 

to  indemnif y,  parol  to  prove,  255. 

implied  to  indemnify,  25(1. 

parol,  not  contradicting  legal  effect  of  writing, 
251. 

to  pay  price  of  goods,  allegation  of,  285. 

to  pay  current  market  rates,  or  fair  value,  306. 

to  pay  draft  as  proof  of  delivery  of  goods,  315. 

"  to  settle,"  when  equivalent  to  promise  to  pay, 
327. 

to  pay  in  a  contingency,  327. 

to  cure  defect,  in  action  for  breach  of  warranty, 
346. 

to  a  third  person  to  pay  plaintiff,  386. 

of  the  plaintiff  to  pay  third  person,  386. 

to  accept  negotiable  paper,  420. 

to  pay  account  stated,  459. 

(And  see  NEW  PROMISE.) 
PROMISSORY  NOTE,  parol  assignment  of,  2. 

(See  BILLS,  NOTES  and  CHECKS.) 
PROMOTER  of  corporation,  action  for  compen- 
sation, 380. 

PROMULGATION  of  ordinance,  771. 
PROOF,  or  acknowledgment  of  deed,  etc.,  175. 694. 
PROSKCUT1ON,  actions  for  malicious,  652,  etc. 

— how  proved,  652. 
PROSPECTUS  of  insurance  co.,  484. 
PROSTITUTES  as  witnesses,  747. 
.PROPERTY,  evidence  of  user,  27. 

revocation  of  will  by  change  in  testator's,  126. 

different  kinds  of,  to  show  intent  of  testator,  136. 

intended  in  will,  143,  144. 

ambiguity  as  to  which  of  two  parcels,  145. 

of  testator,  condition  of,  146  n. 

—situation  of,  149. 

— condition  of,  to  show  intent,  150. 

transfers  of,  between  husband  and  wife,  164  n. 

evidence  of  husband's  title  to,  108. 

management  of,  by  wife,  176. 

of  married  woman,  direct  benefit  to  charge,  184. 

given  in  payment  of  debt  of  another,  value  of, 
264. 

delivery  of,1n  action  for  money  received,  277. 

lack  of,  as  proof  to  whom  credit  was  given,  303. 

value  of,  to  show  price  agreed,  305. 

actions  for  trespass  to  personal,  629,  etc. 

actions  for  trespass  to  real,  634,  etc. 

payment  by  delivery  of,  806. 
PROTEST  against  payment  to  show  duress,  271. 

statement  of  drawees'  declarations  inserted  in, 
421  n. 


PROTEST—  Continued. 

as  evidence,  425. 

of  mariner,  500. 
PROVISO  in  statute.  771. 
PROVOCATION,  actions  for  assault,  650. 

in  libel,  673. 
PUBLIC  OFFICER,  actions  by  and  againsL,  193 

proof  of  title  of,  193,  196. 

legal  title  of,  194. 

contract  of,  in  official  capacity,  194. 

charging  personally,  195. 

acts  oy  part  of  board  or  body,  195. 

demand  and  notice,  196. 

effect  of  former  judgments  on,  196. 

pleading  by  suing  as,  196. 

— as  defendant,  201. 

cause  of  action  against,  198. 

de facto,  proof  of,  201. 

three  rules  as  to  proof  by,  of  being  officer  de 
facto,  201  n. 

process  as  supporting  a  cause  of  action,  197. 

defendant,  process  as  a  protection  to,  201. 

return  adduced  in  his  own  action,  197. 

return  as  evidence  against,  199. 

action  by,  lor  emoluments,  197. 

actions  against,  19ti. 

plaintiff's  pleading  in  actions  against,  198. 

plaintiff's  proof  of  the  otncial  character,  198. 

proof  of  official  character  in  justification  by. 
201. 

presumption  of  performance  of  duty  by,  198. 

public  action  for  refusing  to  serve,  200. 

liability  for  services,  361. 

competent  to  testify  to  handwriting,  395. 

decision  of,  as  former  adjudication,  829.    (See 

o&oOppicER;  and  SHKBIFFS.) 
PUBLICATION  in  copyright  case,  766. 
.  in  foreclosure  advertisement,  701. 

of  award,  467. 

of  libel,  662.  6C.3. 

of  notice,  knowledge  of  witness,  376. 

of  summons,  etc.,  547. 

proved  by  sale,  766. 

PUBLIC  USE  of  invention  before  patent,  764. 
PURCHASE  by  married  woman,  in  question  of 
title,  170. 

by  wife,  when  evidence  of  title  in  husband,  168. 

—liability  of  husband  for,  177. 

joint,  when  evidence  of  partnership,  210. 
PURCHASE  M<  >NEY,  action  to  recover,  385,  72£. 
PURCHASER,  bona  fltte,  of  land,  715. 
PURPOSE  of  an  act  of  trespass,  636. 
QUALITY,  extrinsic  evidence  to  show,  303. 

element  in  proof  of  value,  307. 

opinions  of  witness  as  to,  310. 

defects  in,  as  defense  in  action  on  sale,  335. 

warranty  as  to,  343. 

what  assertion  of,  sufficient  for  warranty,  340. 

implied  warranty  as  to,  343. 

in  action  for  breach  of  warranty,  346. 

presumption  of  knowledge  as  to,  344. 
QUANTITY,  parol  tcrexplain,  304. 

of  property  offered  in  a  lot  at  auction,  328. 

memoranda  refreshing  memory  as  to,  321. 

defects  in,  as  defense  in  action  on  sale,  335. 

warranty  as  to,  343. 

of  land.    (See  VENDOR  and  PURCHASER.) 
QUANTUM  MERUIT,  for  use  and  occupation, 
354. 

for  hire  of  chattels,  how  proved,  356. 

for  service,  how  proved,  367. 
QUIET  POSSESSION,  actions  on  covenants  for, 

520. 

QUI  TAM  action,  770,  etc. 
QUO  WARRANTO,  actions  of,  749 
RAILROAD    COMPANIES,  action   against,  as 
common  carriers,  563,  etc. 

— for  negligence.    (See  NEGLIGENCE.) 

designation  of  land,  638. 

dress  as  indicating  a  brakeman,  41  n. 

admissions  of  conductor,  baggage  master  or 

station  agent,  44. 

RATIFICATION  of  acts  of  officers  or  agents  Tin- 
der allegation  of  authority,  32. 

—effect  of  to  show  authority,  41. 

— when  inferred,  42. 


GENERAL  INDEX. 


873 


RATIFICATION—  Continued. 

of  parol  contracts  of  officers  or  agents  of  cor- 
porations, 31. 

of  agent's  acts,  560. 

— as  proof  of  authority,  87. 

— when  presumed,  U!i!i. 

by  corporation  or  its  officers,  how  proved,  43. 

of  contract  by  executors  and  administrators, 
55  n. 

by  married/ woman,  to  charge  separate  estate. 
185. 

of  concession  by  one  partner,  to  bind  another, 
207,  208. 

of  unauthorized  act  done  for  firm,  214. 

to  render  deed  of  partner  good  against  firm,  216. 

by  partners  after  dissolution.  219. 

by  cesttd  gue  trust,  of  trustee's  dealings  with  es- 
tate, 236. 

of  previous  transactions  as  proof  of  agent's  au- 
thority, x.'1-i. 

to  show  authority  of  one  joint  owner  to  borrow 
for  all,  212. 

of  act  of  broker,  329. 

of  signature  by  admission,  392. 

of  alteration,  uot  proved  by  demand,  408. 

of  award,  467. 

as  to  bailments,  560. 

of  contract  made  on  Sunday,  791. 

of  usury,  not  presumed,  794. 

to  prove  new  promise  after  infant  becomes  of 
age,  79H. 

of  compromise  and  composition  of  debt,  816. 

of  release  by  co-trustee,  817. 
RATING  of  ship.  4U8. 
KEADY  AND  WILLING,  in  contract  of  sale, 

337. 

In  action  for  non-delivery,  338. 
REAL  PARTY  IN  INTEREST,  1,  etc.,  786. 

iucoin potency  of  declarations  of  assignor,  when 
not,  12. 

proof  of  incorporation  of,  20. 

parol  to  show,  295. 

oral  evidence  to  show  in  sealed  instrument,  509. 

plaintiff,  though  not  so  named  in  the  contract, 
298. 

in  insurance  policy,  487. 

in  charter  party,  517. 

in  lease.  r,-j:>. 

REAL  PROPERTY,  presumption  of  death  from 
absence,  75. 

primariuess  of  probate  of  domestic  will  as  to, 
109. 

presumptions  as  to  intestacy,  109. 

primariness  of  will  as  to,  10!)  //. 

decree  of  probate,  how  far  conclusive  as  to,  110. 

charging  legacies  on,  149. 

condition  of,  on  question  of  execution  of  power, 
150. 

advancement  by  deed  of,  152. 

transactions  of  husband  and  wife  affecting,  164. 

conveyed  by  husband  and  wife  jointly.  Kill. 

management  of,  by  wife,  when  separate  busi- 
ness, 176. 

pirtnership  in,  211  n. 

parol  to  prove  partnership  in  transactions  in, 
207. 

title  of  partnership  to,  228. 

resulting  trust  in,  238. 

agency  for  purchase  of,  252  n. 

implied  covenants  in  contract  for  sale  of,  727. 

actions  for  trespass  to.  634,  eic. 

possession  of  in  actions  for  trespass,  C35. 

license  to  another,  638. 

not  questioned  in  replevin.  689. 

actions  to  recover  possession  of,  691. 
REASONABLE  delay,  499. 

doubt,  rule  of,  in  civil  cases,  495,  671. 

time,  how  proved,  8114,  371.  • 

—for  presentment  of  commercial  paper,  421. 

nscnnd  fare,  614. 
RECEIPTOR,  action  against,  605. 
RECEIPT  by  assignor  before  tiansfer.  1 1. 

of   third  persons,   to   show  separation  of  wife 
with  allowance,  179. 

of  husband  for  wife's  property,  180. 

by  ageut  of  new  flrui,  £io  n. 


RECEIPT—  Continued. 
of  trustees  of  an  express  trust,  235. 
to  show  loan,  244. 
primariness  of,  258,  806. 
endors  d  on  order  for  payment  by  third  person, 

259  n. 

of  payee  in  action  for  money  paid,  260. 
order  for  pa\  muut  of  moiiey,  when prirna  facie, 

272. 
in  action  for  money  received,  of  the  money  by 

defendant.  275. 
— of  money  by  a<»ent,  276. 
of  foreign  money,  277. 
oral  evidence  to  explain  or  van-,  279,  289,  553, 

807. 

for  price  of  goods,  288. 
to  show  delivery,  315,  564. 
acts  of  ownership  by  buyer  to  show,  319. 
indorsed  upon  instrument  sued  on,  447. 
carrier's  receipt,  563. 
by  carrier,  how  proved,  564,  565,  etc. 
explanation  by  carrier's,  5G7. 
as  evidence  of  title,  ('•»':!. 
on  delivery  of  check  to  show  payment,  803. 
"as  a  compromise,"  or  "without  recourse," 

807. 

in  full,  808. 

To  show  application  of  payment  by  debtor,  811. 
RECEIVER,  resolution  of  corporation  in  favor 

of,  48. 

actions  by  and  against,  231. 
allegation  of  appointment,  and  right  of  action, 

231. 

proof  of  appointment  of,  231. 
leave  to  sue,  232. 

transactions  of  defendant  in  actions  by,  232. 
when  uot  liable  personally,  ~':i-J. 
action  on  assessments  of  insurance  notes,  456. 
RESCISSION  of  contract,  parol  to  show,  s.'!)5. 
— agreement  for,  on  breach  of  warranty,  3-16. 
— for  fraud,  diligence  in,  733. 
— cancellation  of  instrument,  408. 
of  sale  on  breach  of  warranty,  341. 
inadmissible  under  allegation  of  fraud,  787. 
RECITALS  in  letters  of  administration,  57. 
in  award,  469. 

in  application  for  insurance,  479. 
e»toppel  by,  513. 
in  sheriffs  deed,  702. 
in  tax  deed,  703. 
in  deed  as  evidence,  712. 
in  patents,  759. 
in  municipal  ordinance.  770. 
RECOGNIZANCES,  actions  on.  784. 
RECORD,  what  is  court  of,  541. 
RECORDING    ACTS,  who   is   tona  JlOe    pur- 

chaser,  716. 

RECORDING  deed  when  noticed,  717. 
RECORDS  admissible  ashearsav  of  pedigree,  90. 
copy  of  public,  authenticated  by  officer,  5J  n. 
copies  of  corporate.  50. 

copy  of  record  of  sealed  instrument  of  corpora- 
tion. 35. 

erasures  in  entries  in  corporate,  49. 
family,  9-,>. 
—copy  of,  96. 
"family   rtcord"  in  Bible,  authentication  of 

90  n. 

identity  of  person  named  In.  101. 
imperfect,  in  actions  on  judgment,  536. 
in  bankruptcy.  9. 
juuicial    notice  of  usage  of  church  to  keep  a, 

3!)  «. 

of  filing  of  certificate  of  incorporation,  i"i. 
of  acts  of  directors,  41. 
—of  corporation,  three  classes  of.  46. 
of  election  of  corporate  officers,  ',",<<. 
of  action  of  corporation,  -iti. 
of  corporate  proceedings,  primariness  of,  48. 
of  corporation,  authentication  oi.  •(<»  //. 
of  private  corporation,  lacking  official  signature, 

50. 

rough  corporate  minutes,  50. 
of  |>robate  proceedings,  5>8. 
of  ancient  instrument,  as  hearsay  of  family  his- 
tory, 94. 


874 


GENERAL  INDEX. 


RECORDS—  Continued. 

of  judgment  of  naturalization,  102. 

of  probate  of  will,  as  proof  of  will,  109. 

of  judgment  against  executor  or  administrator, 
161. 

of  appointment  of  public  officer,  when  conclu- 
sive, 201. 

of  order  or  decree  appointing  receiver,  232. 

of  United  States  courts,  549,  550. 

of  former  adjudication,  primariness  of,  831. 

— oral  evidence  to  explain,  833. 

of  deed,  693. 

of  highway,  774. 

of  recognizances,  784. 

of  supervisors,  770. 

of  marriage,  statutory  provision  for,  80. 

parol  to  show  official  character,  notwithstand- 
ing, 198. 

— to  vary  corporate,  51. 

peculiarity  in  competency  of  statutory,  47  n. 

primariness  of  evidence  of  keeper  of,  39. 

to  prove  judgment  of  divorce,  101. 
RECOUPMENT  in  action  on  sale,  335. 

by  counterclaim,  835. 
RECOVERY,  former,  as  merging  cause  of  action, 

827. 
REDEMPTION,  certificate  of,  703. 

of  real  property,  722. 
RE-ENTRY  on  leased  premises,  532. 
REFEREE,  report  of,  not  former  adjudication, 

881. 
REFORMATION,  actions  for,  732. 

grounds  of  impeachment,  732.  • 

of  mistake,  when  necessary,  in  action  on  con- 
tract, 485. 

of  sealed  instrument,  suit  on,  5'2. 
REFRESHING  memory  as  to  handwriting,  395. 

use  of  memoranda  by  witness,  320. 
REFUSAL,  dispensing  with  tender,  316. 

to  receive,  336,  337. 

of  seller  to  deliver,  338. 

to  perform  in  anticipation  of  the  time,  384. 

to  produce  evidence,  478. 

to  produce  books  and  papers,  783. 

of  bailee  to  deliver,  557. 

as  evidence  of  conversion,  627. 

to  perform  contract  between  vendor  and  pur- 
chaser, 728. 

REGISTER  of  shareholders,  as  statutory  record, 
46. 

proof  of  death,  by  hospital,  73. 

of  b  irial,  as  to  time  of  death,  73. 

of  marriage,  kept  pursuant  to  statute,  80. 

of  births,  entry  in,  by  physician,  as  to  time  of 
birth,  87. 

transcript  of  parish,  as  proof  of  family  history, 
93. 

of  facts  of  family  history  authorized  by  law,  97. 

— not  authorized  by  law,  98. 

primariness  of,  as  to  facts  of  family  history,  99. 

authorized  by  sister  state  or  foreign  nation,  97. 

when  compliance  with  formalities  presumed, 
98. 

of  facts  of  family  history,  impeachment  of,  99. 

of  baptism,  marriage,  etc.,  identity  of  person, 
101. 

of  birth  and  baptism  as  proof  of  birth,  86. 

of  hotel,  as  to  intent  of  residence,  108. 

of  deaths,  501. 

of  vessel,  487,  496. 

— as  evidence  of  title,  624. 

of  deed,  693,  71 1. 

of  weather.  499. 

REGISTRATION  of  trade  mark,  751, 760. 
REGULARITY,  presumption  of,  in  proceedings 
of  executors  and  administrators,  55. 

of  issue  of  municipal,  etc.,  bonds,  452. 

in  proceedings  affecting  title  to  land,  700-704. 

of  discharge  in  bankruptcy,  619. 

— in  insolvency,  820. 
REISSUE  of  patent.  758. 

RELATION  to  testator,  to  show  undue  influence, 
120. 

of  testator  to  claimant  as  evidence  of  intent, 
143. 

of  indorsement  back,  to  agreement,  440. 


RELATION-  Continued. 

of  deed  back.  (i!M. 

RELATIONSHIP  proved  by  hearsay  as  to  fact* 
of  peilL'ivp,  <n. 

to  render  declarations  of  deceased  competent  aa 
hearsay,  91. 

proved  by  general  reputation,  94. 

names  of,  in  will,  137. 
RELEASE,  mode  of  proof  and  effect,817. 

oral  evidence  as  to,  818. 

impeachment  of,  818. 

by  assignor  before  transfer,  14. 

as  restoring  competency  of  interested  witness, 
63. 

not  removing  disqualification  of  party  to  testify, 
63».,  64. 

of  interest  by  partner,  when  not  removing  dis- 
qualification as  witness,  64  n. 

of  interest  in  estate  upon  receiving  advance- 
ment, 156. 

of  securities  by  will  as  proof  of  advancement, 
156. 

by  husband,  when  bar  to  wife,  176. 

of  trust,  when  parol  to  show,  incompetent,  234. 

before  maturity  to  bar  action  on  bill  or  note, 
257. 

of  precedent  debt  under  allegation  of  money 

paid  under  fraud,  272  «. 

RELIANCE  on  representation  proved  by  testi- 
mony of  partv,  620. 
RELIGIOUS  BELIEF  of  testator  to  show  intent 

as  to  charitable  g  ft,  142. 
REM,  proceedings  in,  783. 
RENEWAL  of  negotiable  paper,  447. 

of  patent,  758. 

RENT,  profits  in  lieu  of,  no  proof  of  partnership, 
212  n. 

indebtedness  for,  how  proved,  351,  etc. 

rate  of,  how  proved,  354. 

action  on  lease,  522,  etc. 

reserved  in  lease,  amount  how  proved,  527. 

demand  of,  in  actions  on  lease,  530. 

apportionment  of,  in  actions  on  lease,  533. 

payment  of,  in  actions  on  lease,  533. 

ejectment  for  non-payment,  706. 

presumption  from  payment  of  installment  of, 

809. 

REPAIRS  covenants  for  in  lease,  532. 
REPLEVIN,  actions  of,  6S8,  etc. 

as  bar  to  action  for  price  of  goods,  336. 
REPLY  to  counter-claim,  835. 
REPORT,  annual,  of  corporation,  as   statutory 
record,  46. 

of  officer  to  corporation,  51. 

merely  received  and  "accepted,"  for  whatad- 

mi«sil>]e,  51. 

REPRESENTATIONS  of  testator  as  to  his  will, 
131. 

of  partnership  by  partners,  209. 

of  agent  for  benefit  of  principal,  299. 

to  show  warranty  on  written  sale,  344. 

in  insurance,  483.  etc. 

provable  under  allegation  of  mistake.  485. 

as  an  estoppel  from  proving  usury,  792. 
REPUTATION  to  pro\e  marriage,  164,  178. 

of  marriage,  \vlien  sufficient.  81. 

—and  cohabitation,  81  «.,  83,  85  n. 

— effect  of  concealment  to  prevent,  82. 

— originating  afier  cessation  of  cohabitation, 
82. 

— with  meretricious  cohabitation.  82. 

of  deati..  before  expiration  of  presumptive  time, 
to  sustain  second  marriage,  83. 

of  marriage,  facts  negativing  piesumptionfrom, 
84. 

of  alienage  or  illegitimacy  to  sustain  escheat, 
86. 

facts  of  family  history  by  general,  94. 

beyond  family  as  hearsay  of  family  history, 
95. 

competency  of  judgment,  decree  or  verdict,  as 
to  fact  that  might  be  determined  by  general, 
101,  827  /). 

as  to  ownership  to  show  title,  159  n. 

of  separation  of  wife,  with  an  allowance,  In  ac- 
tion for  necessaries,  179. 


GENERAL  INDEX. 


875 


REPUTATION—  Continued. 

official  character  by  proof  of  general,  201  n. 

as  to  residence  of  indorser,  432. 

for  negligence,  585. 

as  to  solvency,  617. 

of  dangerous  animals,  645. 

disiinguished  from  character,  674. 

as  evidence  of  knowledge,  778,  779. 

of  intemperance,  778. 

as  to  mental  capacity  of  testator,  119. 
REQUEST  of  payment  for  money  to  one's  uae, 
249. 

to  sustain  action  for  money  paid,  250. 

not  contradicting  legal  effect  of  writing.  251. 

not  presumed  from  mere  payment  of  debt  of 
another,  252. 

to  pay  what  defendant  ought  rather  to  have 
paid,  253. 

of  principal,  for  surety,  255. 

to  pay  demand  not  legally  due,  266. 

as  ground  of  action  for  price  of  goods,  285. 

to  render  services,  358. 

in  actions  for  negligence,  591. 

to  abate  nuisance,  643. 
RESEMBLANCE  of  trade  mark,  751.    (And  see 

LIKENESS  HANDWRITING,  etc.) 
RES  GEST.E,  404. 

admissions  and  declarations  of  assignor,  2,  11. 

— of  act  of  officers  and  agents,  44. 

— of  party  to  show  usury,  7!)5. 

— as  narrative  of  past  act,  45. 

—of  decedent,  60. 

— and  conduct  of  testator  at  execution  of  will, 
112. 

— as  to  acts  of  others,  122. 

— to  show  revocation  of  will,  124. 

— as  to  title,  159 

— of  donor  as  to  advancement,  154. 

— of  ancestor  in  favor  of  his  title,  158. 

-'-as  to  title,  727. 

— made  during  progress  of  invention,  757. 

—of  husband  or  wife,  166. 

— of  wife  in  course  of  her  service1,  177. 

— of  wife  as  to  causes  of  separation,  179. 

at  time  of  execution  and  attestation  of  will, 
129  n. 

directions  given  by  physician  of  testator,  on 
question  of  undue  influence,  121  n. 

at  time  of  transfer  of  property  to  show  intent 
as  to  an  advancement,  151. 

repute,  cohabitation  and  declarations,  of  mar- 
riage, 82. 

marriage  certificate,  80,  99. 

—of  parties  jointly  liable,  187  n. 

—of  subordinate,  199. 

— of  joint  possessor,  189. 

— of  conspirators,  191. 

— of  partners,  205. 

—of  partner  as  to  scope  of  business,  214. 

— of  drawer  of  check  as  to  its  being  for  a  pay- 
ment or  loan,  2-15  n. 

— as  to  suretyship,  255. 

— of  payee,  259. 

—of  person  paying  money,  as  to  fund  from 
which  made,  264. 

— of  depositor  or  payer.  275. 

—of  depositor  at  time  of  deposit,  278. 

—to  show  intent  as  to  passing  title,  318. 

—of  employee  of  seller  to  remedy  defects,  348. 

— and  entries  of  payment  as  part  of,  799. 

— conduct  and  acts  of  buyer  on  receipt  of  goods, 
319. 

in  tracing  source  of  married  woman's  title,  170. 

entries  tu  show  credit  to  wife,  182. 

entries  in  check-book,  241. 

entries  of  payments  in  accounts  as,  245. 

fraud  in  obtaining  credit,  246. 

information  and  advice  upon  which  agent  acted, 

letters  of  agent  to  sub-agent,  253. 

letters  of  agent  and  entries  in  accounts,  265. 

conversation  on  payment,  to  show  its  applica- 
tion, 265. 

— to  show  receipt  of  money.  269. 

to  show  necessity  of  exercise  of  discretion  by 
agent,  281. 


RES  GEST^E—  Continued. 

receipt  of  payment,  799. 

letter  accompanying  receipt,  807. 

of  payment  to  agent  to  show  good  faith,  282. 

books  as,  to  show  to  whom  credit  was  given, 
302. 

memoranda  as  part  of,  3,  326. 

of  employment,  360,  375. 

of  hiring  servant,  593. 

discharge  of  a  servant,  384. 

as  to  negotiable  paper,  417. 

of  the  making  of  negotiable  paper,  402. 

and  delivery  of  negotiable  paper,  404. 

of  the  indorsement  of  negotiable  paper,  413. 

of  demand  of  negotiable  paper,  424. 

of  demand  and  refusal,  557. 

contemporaneous  agreements,  412. 

as  to  statement  of  account,  461. 

in  case  of  guaranty,  474. 

in  case  of  insurance,  492. 

of  an  accident,  588. 

of  injury,  597. 

in  case  of  personal  suffering,  502,  600. 

of  medical  examination,  601. 

of  loss  of  thing  bailed,  557,  561. 

of  delay  and  loss  by  carrier,  569,  etc. 

the  continuing  fact  of  possession,  711. 

calling  for  liquor,  774. 

in  actions  for  assault,  648. 
RESIDENCE,  how  proved,  107. 

when  proved  by  hearsay  as  pedigree,  91. 

how  proved  on  questio'u  of  national  character, 
102. 

in  question  of  domicile,  103. 

long  continued  as  proof  of  domicile,  104. 

in  new  locality  necessary  to  change  domicile, 
105. 

at  college,  when  does  not  change  domicile,  106. 

payment  of  taxes  as  showing  intent,  108. 

absence  from,  to  raise  presumption  of  death,  76. 

of  judgment  debtor,  736. 
RESIGNATION  of  corporate  office,  769. 
RES  INTER  ALIOS  ACTA,  354. 

in  respect  to  services,  360. 
RES  POND  EAT  SUPERIOR,  592. 
RETAINER,  how  proved,  377. 

by  partner,  548. 
RETURN  in  action  by  public  officer,  197. 

as  evidence  against  officer,  199. 

of  article,  in  breach  of  warranty,  348. 

of  process  how  proved,  600. 

of  execution  as  evidence,  li-24. 

—in  action  by  judgment  creditor,  736. 
REVERSAL  of  judgment  in  actions  on,  539. 

(Awl  see  FORMER  ADJUDICATION.) 
REVERSIONER,    presumption   of   death   from 

absence,  in  life  estates.  75. 
REVOCATION  of  will,  modes  of,  123. 

—disappearance  as  evidence  of,  124. 

— declarations  of  testator  to  show,  124. 

—by  subsequent  will,  125. 

—constructive,  125. 

of  agency,  333. 

of  promise  to  third  person  to  pay  plaintiff ,  386. 
REWARDS,  action  for,  383. 
RIGHT  TO  CONVEY,  actions  on  covenants  of, 

520. 

RISK,  insured  against.  488,  etc. 
"  ROOTS  "  what  are,  485. 
ROBBERY  bv  servant,  572. 
ROUTE  of  carrier.  507. 

RULE  OK  COURT  as  to  value  of  life  estates,  724. 
RUMOR  of  existence  of  partnenhlp,  210. 
SAILOR,  presumption  of  death  by  absence  of,  74. 

domicile  of,  105,  106. 
SALE,  by  officer  not  in  course  of  business,  85. 

bill  of  parcels  showing  joint.  188  n. 

in  action  for  money  received,  2~,(\. 

of  personal  property,  actions  arising  on,  884. 

license  to  sell.  •_•>:. 

ordinary  sa  e  by  delivery,  287. 

ezproec  agreement,  287. 

— made  by  letter  or  telegram,  289. 

memorandum  under  statute  of  frauds,  292. 

explaining  wriiing  by  parol,  291. 

proof  of  usage,  290. 


876 


GENERAL  INDEX. 


SALE—  Continued. 
real  party  in  interest,  298. 
purchase  by  defendant's  agent,  398. 
defendant  liable  as  andltcloaea  principal,  300. 
parol  to  show  undisclosed  principal,  8iU. 
defendant  liable  though  acting  as  agent,  301. 
assumption  of  order  given  by  third  person,  302. 
to  whom  credit  was  given,  Mti. 
identifying  the  tiling  agreed  for,  303. 
quality  ;uid  description,  30). 
"with  all  fault*,"  304. 
varieties  or  grades  included  in  generic  term, 

304. 

parol  to  show  quantity,  304. 
parol  to  show  meaning  of  "  barrels,"  804. 
meaning  of  "  more  or  less  "  305. 
price  agreed,  305. 
value  of  goods  sold,  306. 
market  value,  307. 
prices"  current.  309. 
opinions  of  witnesses  as  to  quality  and  value, 

310. 

time  for  performance  or  payment,  312. 
question  as  to,  being  entire,  312. 
conditions  and  warranties,  313. 
of  goods,  options  in,  313. 
subsequent  modifications  in  contracts  of,  314. 
delivery  or  offer,  314. 
delivery  through  carrier,  315. 
tender  of  goods,  816. 
paying  for  packing  and  freight,  316. 
passing  of  title,  31K  317. 
delivery  to  satisfy  the  statute  of  frauds,  318. 
part  payment  to  satisfy  statute  of  frauds,  319. 
rules  admitting  documents  otherwise  incompe- 

tent, 319. 

contemporaneous  memoranda,  319. 
memoranda  refreshing  memory,  320. 

—  made  by  a  third  person  in  the  usual  course  of 

business,  322. 

—  as  part  of  res  qeslae,  326. 

shop  books  and  other  accounts  of  a  party  in 
his  own  favor,  322. 

—  of  defendant,  336. 

when  using  parl  of  an  account  admits  rest,  326. 

admissions  and  promises  to  pay,  326. 

at  auction,  327,  334. 

through  a  broker,  328,  329. 

•when  demand  necessary  before  suit,  830. 

interest,  when  allowed,  330. 

non-payment  when  to  be  alleged  and  proved, 

331. 

denial  of  contract,  332. 
set-off  against  plaintiff's  agent,  333. 
denial  of  agency  binding  defendant,  333. 
laintiff  an  agent  for  defendant,  333. 
efendant  not  the  buyer,  but  agent  for  another, 

334. 

rescission  of,  334. 
recoupment,  335. 

defects  in  title,  quantity  or  quality,  335. 
deceit  as  defense  in  action  on,  336. 
inconsistent  remedies,  336. 
action  against  buyer,  for  not  accepting,  336. 
readiness  to  perform,  337. 
action  against  seller  'or  non-delivery,  337. 
orders  and  acceptance  in  action  for  non-delivery, 

337. 

readiness  of  buyer  to  perform,  338. 
object  of  buying  as  affecting  damages,  338. 
defendant  only  an  agent,  339. 
intermediate  destruction  of  thing  sold  to,  ex- 

cuse delivery,  339. 
actions  and  defenses  arising  on  breach  of  war- 

ranty, 339. 

pleading  warranty,  339. 
warranty  of  things  in  action,  340. 
warranty  of  title,  340. 
express  warranty  on  sale  of  goods,  340. 
agent's  authority  to  warrant,  341. 
implied  warranty  on,  executed,  342. 
implied  warranty  on,  partly  or  wholly  execu- 

tory. 343. 
by  sample,  343. 
presumption  of  knowledge  as  to  articles  and 

quality,  344. 


pl 
d 


SALE—  Continued, 

parol  evidence  of  warranty  on  written,  8-14. 
parol  to  explain  warranty,  315. 
variances  in  the  contract  and  breach,  345. 
breach  of  warranty,  346. 

opinions  of  witness  as  to  qnality  of  article,  347. 
admissions  and  declarations  of  seller,  to  show 

warranty,  348. 
omission  to   return  the   article,  on  breach  of 

warranty,  348. 

damages  for  breach  of  warranty,  348. 
disproof  of  implied  warranty,  349. 
buyer's  knowledge  of  defect,  34'J. 
seller's  good  faith,  349. 
former  adjudication    in  action  for  breach  of 

warranty,  350. 
contemporaneous    agreement    for    abatement 

from  price,  note,  412. 
of   negotiable  paper  by  indorsement  without 

liability,  414. 

action  for  process  on  execution  saks,  606. 
void  as  against  seller,  625. 
of  lands  on  execution,  702. 
of  lands  on  surrogate's  order,  703. 
of  land  for  taxes,  703. 
of  book,  evidence  of  publication,  766. 
of  liquor  contrary  to  law,  774. 
—proved  under  Civil  Damage  Law,  776. 
SAMPLE,  sale  by,  343. 
SANITY  of  testator,  114. 
SATISFACTION  of  debt  by  bequest  to  creditor, 

148. 

of  legacy  to  child  by  gift  during  life,  148. 
of  judgment  in  actions  on,  5-7J. 
SATISFACTION  PIECE,  evidence  of  payment, 

539. 
SCIENTER  in  action  on  breach  of  warranty,  339, 

346. 

in  action  for  deceit,  618. 
proved  by  other  frauds.  626. 
proved  by  repetition,  772. 
proved  by  other  offences,  775. 
SCRIVENER,  mistake  of,  in  omitting  disposition 

of  property  in  will,  113. 

testimony  of,  to  mistake  in    insertion  of  provi- 
sion in  will,  135  rt. 

mistake  of,  in  writing  name  in  will;- 139. 
SCHEDULES  of  assigned  property,  6. 
in  bankruptcy,  as  admission  of  debt,  10. 
—to  show  true  owner  of  claim.  786. 
SCOPE  OF  BUSINESS,  torts  by  partner,  with- 
in, 217.    (And  see  AGENT.) 
SCROLL,  as  a  seal,  428. 
SEAL,  how  proved,  506. 
presumption  and  proof  of  affixing,  392. 
when  assignment  need  not  be  under,  3. 
common,  when  evidence  of  user,  27. 
presumption  as  to  corporate,  35. 
presumption  of  authority  to  affix,  how  rebut- 
ted, 35. 
of   municipal    corporation,  judicially   noticed. 

35. 

of  corporation,  how  proved,  35. 
affixing  corporate,  when  void,  35. 
corporate,  prima  facie,  that  deed  is  that  of  cor- 
poration, 36. 
of  corporation,  as  proof  of  delivery  of  deed, 

36. 

affixed  by  printer  of  corporate  bonds,  36  n. 
authority  of  agent,  without,  41. 
of  surrogate  affixed  pending  trial,  56  n. 
contract  of  public  officer  under  private,  195. 
authority  for  partnership  business  done  with- 
out, 214. 

power  of  partner  to  bind  firm  by,  216. 
rejected  as  surplusage,  216. 
on  notary's  certificate,  428. 
as  evidence  of  consideration,  515. 
imports  consideration  in  guaranty,  472. 
—in  release,  817. 
on  lost  instrument,  510. 
of  judgment  of  sister  state,  543. 
SEALED  instrument  admissible  without  allega- 
tion of  seal,  391. 

Instrument  admitting  account  stated,  460. 
instruments,  actions  oil,  504,  etc. 


GENERAL  INDEX. 


877 


SEAMAN,  participation  in  profits  in  lieu  of  wa- 
ges, 212  n. 

domicilof,  105. 
SB  ARC  II  for  relatives  of  absentee,  76. 

for  lost  will,  what  necessary,  127. 

for  lost  instrument,  510. 
SEAWORTHINESS,  486. 
SECTION  of  statute,  and  proviso,  771. 
SECURITY    not  to  pass   by  will   under    "mo- 
neys," 144. 

purchased  by  parent  in  name  of  child,  152. 

taken  by  parent  for  funds  furnished  to  son,  153. 

an  advancement  by  provision  in  will,  155  n. 

release  of,  by  will  as  an  advancement,  150. 

making  of,  lo  married  woman,  180. 

surrendered  by  mistake,  243  n. 

proof  of  wortlilessness,  243  n. 

promise  to  give,  void  by  Statute  of  Frauds, 
246. 

effect  of  holding  collateral  npon  lender's  rem- 
edy, 246. 

parol  to  show  a  transfer  was  given  for,  295. 

payment  by  transfer  of,  804.  805,  806,  809. 

possession  of,  by  debtor  to  show  payment,  809. 

void,  to  rebut  accord  and  satisfaction,  814. 

delivery  or    tender  of,   in   composition   with 

creditors,  816. 
SEDUCTION,  actions  for,  681,  etc. 

loss  of  service,  682. 

good  faith,  682. 

character,  682. 
SEIZIN,  ancestor's,  when  necessary,  156. 

actions  on  covenants  of,  520. 
SERVANTS  of  corporation,  authority  of,  41. 


labor  as 


by-laws,  when  competent  against,  48  n. 

exemption  of  proceeds  of  husband's 
wife's,  168. 

participation  in  profits  by,  211  n.,  212  n. 

notice  to,  of  dissolution  of  partnership,  224. 

of  carrier,  delivery  of  goods,  315. 

authority  of,  to  sell,  not  to  warrant,  341. 
thority  of  innkeeper's.  560. 
aracter  of,  inferred  from  appearance,  580. 

negligent  person,  a,  591. 

who  is,  in  actions  for  negligence,  592. 

employment  of  unfit,  593. 

intemperance,  how  proved,  779. 

knowledge  of,  evidence  against  master,  772. 

actions  for  assault  by,  646. 

in  house  of  prostitution  as  witness,  747. 
SERVICES  of  wife,  admission  as  to  husband's 
consent,  176,  177. 

actions  for  compensation,  357. 

of  process  to  sustain  judgment,  546. 

—to  show  commencement  of  action,  822. 

loss  of  by  seduction,  (W2. 
SET-OFF,  mistake  as  to,  269. 

against  plaintiff's  agent,  333. 

agreement  to  set-off  against  note,  412. 

dutingaished  from  omission  from  account,  463. 

under  general  allegation  of  payment,  799. 

when  not  barred  by  former  adjudication,  834. 

counter-claim  as  to,  835. 
SETTLEMENT,  voluntary,  of  insolvent  debtor, 

788. 

SEVERAL  LIABILITY  on  commercial   paper, 
809. 

on  contracts  or  for  tort,  186. 

SEXUAL  INTERCOURSE,  how  proved,  743-748. 
SHERIFF,  return  of,  197,  200,  200  n, 

receipt  of,  in  action  for  money  paid,  261  n. 

action  against  for  advertising,  376. 

actions  by  and  against,  605. 

action  against  receiptor  of,  605. 

action  for  conversion,  605. 

action  of,  for  trespass,  605. 

justifying  levy,  031. 

deed,  etc.,  of,  7<W. 

presumption  of  deputy's  authority,  702. 

payment  to,  802. 

delivery  of  process  to,  as  commencement  of  ac- 
tion, 822. 

SIIIP,  payment  of  insurance  of,  to  prove  death, 
74. 

admissions  and  declarations  of  part  owner  of, 
190ft. 


SHIP—  Continued. 

ownership  of,  4S7,  496. 

evidence  for  forfeiture  of,  784. 
SHI  I'M  KNT  of  goods,  how  proved,  498. 
SHIP'S  HUSBAND,  acting  as,  prima  facie  of  ap- 
pointment, •-.':>•.'  n. 

SHIP'S  REGISTER  as  evidence  of  title,  624. 
"SHIPYARD/'  what  is,  484. 
SHOP  BOOKS,  pany  competent  to  identify,  69  n. 

to  show  to  whom  credit  was  given,  302. 

entry  in,  when  prima  facie  of  price  and  value, 
306. 

of  a  party  offered  in  his  own  favor,  322. 

of  defendant,  336. 

of  mechanics,  tradesmen  and  physicians,  372. 

of  newspaper  printer,  376. 
SHORT-HAND,  interpretation  of  will  written  in, 

132. 

SIGNAL  SERVICE,  registry,  499. 
SIGNATURE,  rules  as  to  proof  of,  391,  etc. 

effect  of  words  of  agency  attached  to,  37. 

of  oflicer  to  corporate  minutes,  49. 

corporate  minutes,  lacking  official,  50. 

of  officer  certifying  marriage  certificate,  98  n. 

of  subscribing  witness  to  a  will,  112. 

of  wife  for  husband,  175. 

of  contract  by  partner,  self  "  &  Co.,"  215. 

parol,  to  charge  firm  on  individual,  21fi. 

for  incidental  purpose,  not  primary,  of  loan,  243. 

as  evidence  of  suretyship,  i"iJ. 

of  drawer  proved  by  acceptance.  420. 

drawee's  knowledge  of  drawer's  payee's  and  in- 
dorser's,  270. 

to  memoranda  made  in  usual  course,  322. 

of  account  stated,  not  conclusive,  463. 

of  policy,  477. 

misplaced,  504. 

by  parties  not  named,  507. 

of  record,  537. 
SIGNBOARDS,  774,  777. 

evidence  of  ownership,  591. 
SILENCE,  as  election  to  accept  devise,  157. 

of  wife,  caused  by  husband's  influence,  106. 

of  wife,  when  not  an  estoppel,  167. 

of  husband  to_  show  title  in  wife.  169. 

of  those  in  joint  business  to  show  authority  for 
statements  of  one,  I'.'O. 

as  ratification  of  act  of  one  partner,  217. 

as  admission  of  payment  by  check.,  259. 

as  assent  to  conditions  on  which  money  is  de- 
livered, 272. 

as  ratification  of  agent's  act,  299. 

when  not  to  imply  warranty,  342. 

an  admission  of  correctness,  461. 

not  necessarily  assent,  477. 

not  necessarily  a  waiver,  490. 

may  amount  to  waiver,  510. 
SISTER  STATES,  actions  on  judgments  of,  541. 
"SKINS,"  what  are,  485. 
SLANDER,  actions  for,  059,  etc. 

of  title,  668. 

SLIP,  insurance  slip,  478. 
SOLDIER,  domicile  of,  105, 106. 
SOLVENCY,  mode  of  proof.  616,  etc. 

of  corporation,  accounts,  and  business  entries 
in  issue  as  to,  52. 

or  wealth  of  debtor,  as  to  payment,  810. 
Sol'NDNKss  OK  MIND.  ..TT.) 

SPECIAL  contract,  \\hen  must  be  proved  in  ac- 
tion for  services.  361. 

damages,  alii  uring  and  admitting,  649,  669. 
SPECIAI.TIKS.  actions  on,  BOi, . 
SPECIKICATIONS  for  patents.  757. 
SPECIFIC  PERFORMANCE   of    oral  contract 
partly  performed,  730. 

contract  to  sustain  action  f. 

suppression  of  evidence-  in  action  for.  729. 

plaintiff's  title  and  performance   in  action  for, 

731. 
SPOLIATION  of  subsequent  will  by  party  claim. 

ing  under  i-arlu  r. 
STATE,  title  o!.  t,>  land-. 

of  the  art  in  patent  case,  759,  765. 

ST\TK<;KANT.  ;<>.-.. 
STATUTE,  evidence  of,  770. 

authenticity  and  validity  of,  21. 


873 


GENERAL  INDEX. 


STATUTE—  Con/tint, ,!. 

of  sister  Staff,  how  proved,  22. 

former  adjudication  on  construction  of,  828. 

aiilhorily  to  maintain  nnisanrc,  644. 

statutory  conditions  of  contract,  506. 

violation  of,  us  evidence  of  negligence,  589. 

wills  compared  to,  as  to  admission  of  parol  to 

explain.  131  n. 

STATUTE  ACTION,  cogency  of  proof,  7T5. 
STATUTE  OF   FRAUDS,  unsealed  contracts  of 
corporations  under.  31. 

trust  manifested  and  proved  by  writing,  233. 

promise  to  give  security  for  loan  void  by,  Ss46. 

promise  to  indemnify  not  within,  255. 

parol  to  show  real  party  to  contract,  274  n. 

real  party  in  interest,  when  to  recover,  notwith- 
standing, 298. 

requisite  memorandum  of  sale  nnder,  292. 

not  applicable  to  agreements  for  production  or 
manufacture,  292  ». 

not  satisfied  by  oral  evidence,  295. 

undisclosed  principal  in  contract  required  to  be 
in  writing  by,  301. 

contract  void  under,  good  as  proposition  of 
price,  305. 

modification  of  contract  within,  314. 

delivery  to  satisfy.  318. 

part  payment  to  satisfy,  319. 

compliance  with,  in  auction  sales,  327. 

effect  of,  on  rescission  of  sale,  335. 

in  action  for  use  and  occupation,  352. 

application  in  action  for  wages,  etc.,  363. 

when  available  under  a  general  denial,  374. 

as  to  agreement  for  board  and  lodging,  379. 

over  writing  guaranty  above  indorsement,  440  n. 

as  to  guaranties,  etc.,  471,  etc. 

rule  as  to  pleading,  522. 

in  case  of  breach  of  promise,  678. 

as  to  oral  evidence  of  transfer  of  title,  698. 

to  impeach  contract,  789. 

contract  between   vendor  and  purchaser,  725. 

(See  also  FRAUD.) 

STATUTE  OP  LIMITATIONS  distinguished 
from  presumption  of  payment  from,  lapse 
of  time,  812. 

pleading,  822. 

burden  of  proof,  822. 

new  promise  to  rebut,  823. 

conditiona'  new  promise,  824. 

acknowledgment  of  debt,  824. 

as  to  payment,  267. 

part  payment,  824. 

indorsement  of  payments,  825. 

decedent's  declarations  as  to  debt  barred  by,  155 
n. 

partner  not  agent  to  remove,  189  n. 

power  of  partner  after  dissolution  to  make  new 
contract  and  to  acknowledge  debt  barred 
by,  219. 

STATUTORY  TITLE,  ejectment,  700. 
STEP  PARENT  and  step  child,  services  between, 

359. 
STOCK,  strict  proof  of  incorporation,  on,  19. 

action  on  a  subscription  for,  as  proof  of  cor- 
porate existence,  27  n. 

owner  of,  when  estopped  from  questioning 
corporate  character,  29. 

subscription  books  for,  as  statutory  records,  46. 

rejecting  false  description  of,  in  will,  145. 

bequest  of,  specific,  147. 

husband's  collection  of  interest  or  dividends  on 
wife's,  176. 

burden  on  one  appearing  on  stock-book  as 
holder  of,  232. 

proof  in  stock-broker's  suit  for  deficiency  on  re- 
sale, 252  n. 

notes  to  insurance  company,  455. 
STOCKHOLDER,  how  proved,  768. 

liability  of.  7<iS. 
STORAGE  receipt,  553. 

action  against  sheriff  for,  607. 
STORM,  causing  loss,  600. 

STOWAGE,  actions  against  common  carrier,  668. 
STRANGER'S  declarations  inres  gestce,  589. 
STYLE  of  writing,  3^7. 
SUBMISSION  to  arbitration,  465, 


SUBSCRIBING  WITNESS,  roles  ae  to  proof  by. 
B91. 

proof  in  case  of,  505. 
sriil'iKNA.  clisobeving.TOn. 
SUBSCKII'TION  of  policy,  477. 
SUCCESSION",     claiming    perpetual,  when  evt 

dence  of  user,  27. 
SUFFERING,  899, 678. 
St  K'lDE,  circum-tances,  evidenceof,  502 n. 

presumption  against,  503. 

in  case  of  life  insurance,  501. 
SUNDAY,  negotiable  paper  made  on,  409. 

Impeachment  of  contract  made  on,  790., 
SUPERINTENDENT'S  certificate,  371. 
SUPERVISOR'S  ordinance,  770. 
SUPPORT,  loss  of,  602. 

injury  to,  means  of,  780. 
SURCHARGING  and  falsifying  account  stated, 

4(i:i,  815. 

SURETY,  action  of,  against  principal  or  co-surety, 
254. 

for  drawer  of  bill,  257  n. 
'receipt  of  payee  of  payment  by  surety,  261. 

to  recover  only  amount  paid  to  settle  debt,  264. 

indorsement  as  between,  414. 

fraudulent  concealment  practiced  on,  512. 

insiifliciency  of,  taken  by  sheriff,  608. 

oral  evidence  to  show,  818. 

SURETYSHIP,  admissions  and  declarations  of 
one  jointly  liable,  1'jO. 

and  judgment  paid,  aa  evidence  of  the  amount 
duer-Jtii. 

and  dealing  with  principal,  445. 

and  modification  of  contract,  818. 
SURPLUSAGE,  unnecessary  seal  rejected  as,  21«. 
SURRENDER,  to  show  symbolical  delivery,  318. 

of  lease.  532. 

by  bailee,  555. 
SURROGATE,  seal  of,  affixed  pending  trial,  56  n. 

non-compliance  of,  with  conditions  precedent  of 
his  action,  58. 

competency  of  minutes  of,  58. 

decree  of,  when  proof  of  facts  of  family  history, 
100. 

original  record  of,  as  to  probate  of  will,  109. 

decree  of,  admissible  in  action  on  administra- 
tion bond,  514. 

sale  of  real  property,  703. 
SURVEY,  competency  of,  in  insurance,  500. 
SURVEYOR'S  notes,  699. 
SURVIVORSHIPS  common  casualty,  78. 
STAMP  on  bank  check,  453. 

of  cancellation.  408. 
SWORN  COPIES  of  judgment,  536. 
SYMBOLICAL  DELIVERY,  to  satisfy  statute  of 

frauds,  318. 

TACIT  assent  to  account  rendered,  461. 
"  TAKING  UP  "  negotiable  paper,  4,  449. 
TAVERN  sign,  774,  777. 

TAXES,  payment  of,  to  show  intent  as  to  domi- 
cile, 108.  ( 

sale  of  lands  for,  703. 

collector's  book,  705. 

justification  by,  633. 

mistake  in  paying  neighbor's  tax,  251  n. 

contribution  among  joint  owntrs  for  payment    a 
of,  254  n. 

assent  of  owner  to  payment  of,  by  tax  collector, 
254  n. 

money  paid  for  taxes  to  defendant's  use,  260. 

tax  collector's  receipts  as  proof  of  payment  by 

administrator.  261  n. 
TECHNICAL  WORDS  in  will,  explanation  of,  133. 

explanation  of  to  aid  in  identifying  property  in 
will,  144  n. 

in  insurance  law,  484. 

opinions  of  witness  as  to,  757. 
TELEGRAM,  agreement  of  sale  made  by,  289. 

primariness  of  original  message,  290,  604. 

part  of  connected  correspondence,  291. 
TELEGRAPH  COMPANIES,  actions  against,  604. 
TENANCY,  how  proved.  351,  523. 

in  common,  in  ejectment,  714. 

in  common— in  case  of  partition,  724. 

in  common — admissions  and  declarations  of  one 
co-tenant  agaiust  another,  188. 


